exv4w5






Exhibit 4.5




RIGHT OF FIRST REFUSAL AND CO-SALE AGREEMENT




     THIS RIGHT OF FIRST REFUSAL AND CO-SALE AGREEMENT (this “Agreement”) is made as of January
15, 2010, by and among NOBAO RENEWABLE ENERGY HOLDINGS LIMITED, a company duly incorporated and
validly existing under the Laws of the Cayman Islands (the “Company”), CHINA ENVIRONMENT FUND III,
L.P., a limited liability partnership duly organized and existing under the laws of the Cayman
Islands (the “Investor”), Sun Kwok Ping, holder of Hong Kong document of identity No. DA9001901
(the “Founder”), Wide Safety International Limited, a Hong Kong company (the “Other Ordinary
Holder”), EASTERN WELL HOLDINGS LIMITED, a company duly incorporated and validly existing under
the Laws of Hong Kong (“Eastern Well”), NUOXIN
ENERGY TECHNOLOGY (SHANG HAI) CO.,
LTD.(), a wholly
foreign owned enterprise duly organized and validly existing under the Laws of the PRC (“Shanghai
Nuoxin”) and JIANGXI NOBAO ELECTRIC CO.,
LTD.(), a wholly foreign owned enterprise duly organized
and validly existing under the Laws of the PRC (Jiangxi Nobao”).



     Each of the Company, the Investor, the Founder, the Other Ordinary Holder, Eastern Well,
Shanghai Nuoxin and Jiangxi Nobao shall be referred to individually as a “Party” and collectively
as the “Parties”. Shanghai Nuoxin and Jiangxi Nobao shall be collectively referred to as the “PRC
Companies”.



RECITALS





	A.	 	A Share Exchange Agreement was entered into on January 15, 2010 (the “Share Exchange
Agreement”) by and among certain of the Parties.






	B.	 	It is a condition precedent of closing under the Share Exchange Agreement that the Parties
enter into this Agreement.





WITNESSETH




     NOW, THEREFORE, in consideration of the premises set forth above, the mutual promises and
covenants set forth herein and other good and valuable consideration, the Parties agree as
follows:




	1.	 	Definitions.





     Capitalized terms used and not otherwise defined herein herein shall have the meanings
ascribed to them in Schedule 1 hereto.




	2.	 	Rights of First Refusal and Co-Sale Rights





     2.1
Prohibition on Transfer of Shares.



     (a) Holders of Ordinary Shares.



          Except as provided in Sections 2.2 through 2.5 of this Agreement, any holder (whether
directly or indirectly) of Ordinary Shares of the Company other than the Investor or holders of
Ordinary Shares converted from Series A Preferred Shares (each a “Restricted Shareholder”),
regardless of any such holder’s employment status with the Company, may not



Right of First Refusal and

Co-Sale Agreement



 









 







transfer any direct or indirect interest in any Equity Securities of the Company now or
hereafter owned or held by him prior to a Qualified IPO, unless otherwise approved in writing by
the majority of the Board, including the approval of the director appointed by the Investor. For
the purposes hereof, redemption or repurchase of shares by the Company shall not be prohibited
under this clause.




     (b) Prohibited Transfers Void.



          Any transfer of Equity Securities by a Restricted Shareholder not made in compliance with
this Agreement shall be null and void as against the Company and the Holders, shall not be
recorded on the books of the Company and shall not be recognized by the Company.




     2.2 Rights of First Refusal.



     (a) Transfer Notice.



          Prior to the closing of a Qualified IPO, if a Restricted Shareholder proposes to transfer the
Equity Securities he or it directly or indirectly holds in the Company to one or more third
parties pursuant to an understanding with such third parties (a “Transfer”, and such holder a
“Transferor”), then the Transferor shall, subject to the applicable statutory provisions and the
Memorandum and Articles, give the Company written notice of the Transferor’s intention to make the
Transfer (the “Transfer Notice”), which shall include (i) a description of the Equity Securities
to be transferred (the “Offered Shares”), (ii) subject to any applicable non-disclosure agreement
with such third party, the identity of the prospective transferee and (iii) the consideration and
the material terms and conditions upon which the proposed Transfer is to be made. The Transfer
Notice shall certify that the Transferor has received a firm offer from the prospective transferee
and in good faith believes a binding agreement for the Transfer is obtainable on the terms set
forth in the Transfer Notice.




     (b) Company’s Option.



          (i) The Company shall have an option for a period of fifteen (15) days following the receipt
of the Transfer Notice to elect to purchase all of the Offered Shares (not in part) at the same
price and subject to the same material terms and conditions as described in the Transfer Notice,
subject further to complying with all the applicable statutory provisions (including, without
limitation, the Companies Law of the Cayman Islands) and the Memorandum and Articles.




          (ii) The Company may exercise such purchase option and, thereby, purchase all of the Offered
Shares, by notifying Transferor in writing, before expiration of the fifteen (15) day period,
that it wishes to purchase all of the Offered Shares.




          (iii) If the Company gives the Transferor notice that it desires to purchase Offered Shares,
then payment for the Offered Shares to be purchased shall be by check or wire transfer in
immediately available funds of the appropriate currency, against delivery of such Offered Shares
to be purchased at a place agreed by the Transferor and the Company and at the time of the
scheduled closing therefor, which shall be no later than forty-five (45) days after the Company’s
receipt of the Transfer Notice, unless such notice contemplated a later closing with the
prospective third party transferee or unless the value of the purchase price has not yet been
established pursuant to Section 2.2(d) or if later, the day on which all the mandatory statutory





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procedures shall have been completed.




          (iv) Regardless of any other provision of this Agreement, if the Company declines in writing,
or fails to exercise its purchase option pursuant to this Section 2.2 with respect to all (and not
less than all) Offered Shares, then the Transferor shall be under no obligation to transfer the
Offered Shares to the Company pursuant to this Section 2.2 and shall then be required to provide a
Transfer Notice regarding the Offered Shares to the Holders (the “Holder Transfer Notice”)
pursuant to Section 2.2(c).




          (v) The Transferor shall have the right to terminate or withdraw any Transfer Notice and any
intent to transfer Offered Shares at any time, whether or not the Company has elected to purchase
under this Section 2.2 any Offered Shares offered thereby.




     (c) Holder’s Option.



          (i) If the Company at any time elects not to purchase all of the Offered Shares pursuant to
its right of first refusal in Section 2.2(b) hereof, then each Holder shall have an option for a
period of fifteen (15) days following the Holder’s receipt of the Holder Transfer Notice to elect
to purchase its respective pro rata share of the Offered Shares at the same price and subject to
the same material terms and conditions as described in the Holder Transfer Notice.




          (ii) Each Holder may exercise such purchase option and, thereby, purchase all or any portion
of its pro rata share (with any re-allotment as provided below) of the Offered Shares, by
notifying Transferor and the Company in writing, before expiration of the fifteen (15) day period
as to the number of such shares that it wishes to purchase (including any re-allotment).




          (iii) Each Holder’s pro rata share of the Offered Shares shall be a fraction, the numerator
of which shall be the number of Equity Securities (assuming the exercise, conversion and exchange
of any Ordinary Share Equivalents) owned by such Holder on the date of the Holder Transfer Notice
and the denominator of which shall be the total number of Equity Securities (assuming the
exercise, conversion and exchange of any Ordinary Share Equivalents) held by all Holders on such
date, multiplied by the Offered Shares.




          (iv) If any Holder fails to exercise such purchase option pursuant to this Section 2.2, the
Transferor shall give notice of such failure (the “Re-allotment Notice”) to each other Holder that
elected to purchase its entire pro rata share of the Offered Shares (the “Purchasing Holders”).
Such Re-allotment Notice may be made by telephone if confirmed in writing within two (2) days. The
Purchasing Holders shall have a right of re-allotment such that they shall have ten (10) days from
the date such Re-allotment Notice was given to elect to increase the number of Offered Shares they
agreed to purchase under Section 2.2(c)(iiii) to include their respective pro rata share of the
Offered Shares contained in any Re-allotment Notice.




          (v) Subject to applicable securities Laws, the Holder shall be entitled to apportion Offered
Shares to be purchased among its partners and Affiliates upon written notice to the Company and
the Transferor.




          (vi) If a Holder gives the Transferor notice that it desires to purchase Offered Shares,
then payment for the Offered Shares to be purchased shall be by check or wire transfer













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in immediately available funds of the appropriate currency, against delivery of such Offered
Shares to be purchased at a place agreed by the Transferor and all the participating Holders and
at the time of the scheduled closing therefor, which shall be no later than forty-five (45) days
after the Holder’s receipt of the Holder Transfer Notice, unless such notice contemplated a later
closing with the prospective third party transferee or unless the value of the purchase price has
not yet been established pursuant to Section 2.2(d).




          (vii) Regardless of any other provision of this Agreement, if the Holders decline in
writing, or fail to exercise their purchase option pursuant to this Section 2.2(c) with respect
to all (and not less than all) Offered Shares, the Transferor shall be under no obligation to
transfer the Offered Shares to the Holders or the Company pursuant to this Section 2.2 and
instead shall be free to sell such Offered Shares pursuant to the Holder Transfer Notice, subject
to Sections 2.3 and 2.4 hereunder.




          (viii) The Transferor shall have the right to terminate or withdraw any Holder Transfer
Notice and any intent to transfer Offered Shares at any time, whether or not any Holder has
elected to purchase under this Section 2.2(c) any Offered Shares offered thereby.




          (ix) If the Company or any Holder exercises its right of first refusal to purchase the
Offered Shares, then, upon the date of the completion of the relevant share transfers, the
Transferor will have no further rights as a holder of such Offered Shares except the right to
receive payment for such Offered Shares from the Company or such Holder in accordance with the
terms of this Agreement, and the Transferor will forthwith cause all certificate(s) evidencing
such Offered Shares to be surrendered to the Company for cancellation or transfer to such Holder.




          (x) In the event that the Company or Holders have not elected to purchase all of the Offered
Shares, then the sale of the remaining Offered Shares will become subject to the co-sale right of
the Holders as set forth in Section 2.3 below.




     (d) Valuation of Property.



          (i) Should the purchase price specified in the Transfer Notice or Holder Transfer Notice be
payable in property other than cash or evidences of indebtedness, the Holders or the Company, as
the case may be, shall have the right to pay the purchase price in the form of cash equal in
amount to the fair market value of such property.




          (ii) If the Transferor, on the one hand, and the Holders or the Company, as the case may be,
on the other hand, cannot agree on such cash value within seven (7) days after the Holders’
receipt of the Holder Transfer Notice or the Company’s receipt of the Transfer Notice, the
valuation shall be made by an appraiser of internationally recognized standing jointly selected by
the Transferor and the Holders or the Company, as the case may be, or, if they cannot agree on an
appraiser within ten (10) days after the Holders’ receipt of the Holder Transfer Notice or the
Company’s receipt of the Transfer Notice, each shall select an appraiser of internationally
recognized standing and the two appraisers shall designate a third appraiser of internationally
recognized standing, whose appraisal shall be determinative of such value.




          (iii) The cost of such appraisal shall be shared equally by the Transferor and the Holders
or the Company, as the case may be, with the half of the cost borne by the Holders to be borne
pro rata by each Holder based on the number of shares such Holder has elected to purchase
pursuant to this Section 2.













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          (iv) If the value of the purchase price offered by the prospective transferee is not
determined within the time limit specified in Section 2.2(b)(iii) or Section 2.2(c)(vi) above,
the closing of the Holders’ or the Company’s purchase shall be held on or prior to the fifth
business day after such valuation shall have been made pursuant to this Section 2.2(d).




     2.3 Right of Co-Sale.



     (a) To the extent the Holders do not exercise their respective right of first refusal as to
all of the Offered Shares pursuant to Section 2.2, each Holder that did not exercise its right of
first refusal as to any of the Offered Shares pursuant to Section 2.2 shall have the right to
participate in such sale of Equity Securities on the same terms and conditions as specified in the
Transfer Notice by notifying the Transferor in writing within fifteen (15) days after receipt of
the Holder Transfer Notice referred to in Section 2.2(b) (such Holder, a “Selling Holder”).



          (i) Such Selling Holder’s notice to the Transferor shall indicate the number of Equity
Securities the Selling Holder wishes to sell under its right to participate.




          (ii) To the extent one or more of the Holders exercise such right of participation in
accordance with the terms and conditions set forth below, the number of Equity Securities that the
Transferor may sell in the Transfer shall be correspondingly reduced.




     (b) Each Selling Holder may elect to sell such number of Equity Securities that in aggregate
equals to the total number of Offered Shares being transferred following the exercise or
expiration of all rights of first refusal pursuant to Section 2.2 hereof on pro rata basis. Each
Selling Holder may elect to sell such number of Equity Securities that equals to the product of
(i) the aggregate number of the Offered Shares being transferred following the exercise or
expiration of all rights of first refusal pursuant to Section 2.2 hereof multiplied by (ii) a
fraction, the numerator of which is the number of Ordinary Shares (on as-if-converted basis which
include the number of Ordinary Shares that would be issuable upon the exercise, conversion or
exchange of Ordinary Share Equivalents) owned by the Selling Holder on the date of the Transfer
Notice and the denominator of which is the total number of Ordinary Shares (on as-if-converted
basis which include the number of Ordinary Shares that would be issuable upon the exercise,
conversion or exchange of Ordinary Share Equivalents) owned by all Selling Holders on the date of
the Transfer Notice.



     (c) If any Selling Holder fails to exercise such co-sale option pursuant to this Section
2.3, the Transferor shall give notice of such failure (the “Co-Sale Re-allotment Notice”) to each
other Selling Holders that elected to sell its entire pro rata share of the Offered Shares (the
“Co-Sale Selling Holders”). Such Co-Sale Re-allotment Notice may be made by telephone if
confirmed in writing within two (2) days. The Co-Sale Selling Holders shall have a right of
re-allotment such that they shall have ten (10) days from the date such Co-Sale Re-allotment
Notice was given to elect to increase the number of Equity Securities they agreed to sell under
Section 2.3(b) to include their respective pro rata share of the Equity Securities to be sold
contained in any Co-Sale Re-allotment Notice.



     (d) Each Selling Holder shall effect its participation in the sale by promptly delivering to
the Transferor for transfer to the prospective purchaser one or more certificates, properly
endorsed for transfer, which represent the type and number of Equity Securities which such
Selling Holder elects to sell; provided, however that if the prospective third-party
purchaser objects to the delivery of any Ordinary Share Equivalents in lieu of Ordinary Shares,
such Selling Holder shall only deliver Ordinary Shares (and therefore shall convert any such



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Ordinary Share Equivalents into Ordinary Shares) and certificates corresponding to such
Ordinary Shares. The Company agrees to make any such conversion concurrent with the actual
transfer of such shares to the purchaser and contingent on such transfer.




     (e) The share certificate or certificates that a Selling Holder delivers to the Transferor
pursuant to Section 2.3(d) shall be transferred to the prospective purchaser in consummation of
the sale of the Equity Securities pursuant to the terms and conditions specified in the Transfer
Notice, and the Transferor shall concurrently therewith remit to such Selling Holder that portion
of the sale proceeds to which such Selling Holder is entitled by reason of its participation in
such sale.



     (f) To the extent that any prospective purchaser prohibits the participation of a Selling
Holder exercising its co-sale rights hereunder in a proposed Transfer or otherwise refuses to
purchase shares or other securities from a Selling Holder exercising its co-sale rights hereunder,
the Transferor shall not sell to such prospective purchaser any Equity Securities unless and
until, simultaneously with such sale, the Transferor shall purchase from such Selling Holder such
shares or other securities that such Selling Holder would otherwise be entitled to sell to the
prospective purchaser pursuant to its co-sale rights for the same consideration and on the same
terms and conditions as the proposed transfer described in the Transfer Notice.



     2.4 Non-Exercise of Rights.



     (a) Subject to any other applicable restrictions on the sale of such shares, to the extent
that the Holders have not exercised their rights to purchase the Offered Shares within the time
periods specified in Section 2.2 and the Holders have not exercised their rights to participate in
the sale of the Offered Shares within the time periods specified in Section 2.3, the Transferor
shall have a period of sixty (60) days from the expiration of such rights in which to sell the
Offered Shares, as the case may be, to the third-party transferee identified in the Transfer
Notice upon terms and conditions (including the purchase price) no more favorable to the purchaser
than those specified in the Transfer Notice.



     (b) In the event the Transferor does not consummate the sale or disposition of the Offered
Shares within sixty (60) days from the expiration of such rights, the Holders’ first refusal
rights and co-sale rights shall continue to be applicable to any subsequent disposition of the
Offered Shares by the Transferor until such rights lapse in accordance with the terms of this
Agreement.



     (c) The exercise or non-exercise of the rights of the Holders under this Section 2 to
purchase Equity Securities from a Transferor or participate in the sale of Equity Securities by a
Transferor shall not adversely affect their rights to make subsequent purchases from the
Transferor of Equity Securities or subsequently participate in sales of Equity Securities by the
Transferor hereunder.



     2.5 Limitations to Rights of First Refusal and Co-Sale.



     (a) Notwithstanding the provisions of this Section 2 and in the Shareholders Agreement, the
Founder may sell or otherwise assign, up to five percent (5%) of Equity Securities now or
hereafter held by him, to any Person, and such sale or assignment shall be subject to only the
Investor’s right of first refusal under Section 2.2 and the Investor’s co-sale right under
Section 2.3 under the same terms and conditions, provided that (i) only one transfer is
permitted and any additional transfer shall require the prior consent of the Investor, and (ii)



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each such transferee, prior to the completion of the sale, transfer, or assignment, shall
have executed documents, in form and substance reasonably satisfactory to the Holders, assuming
the obligations of the Restricted Shareholders under this Agreement, including but not limited to
Section 2.1 hereof, with respect to the transferred securities.




     (b) In addition to the provisions of this Section 2.5(a), any Restricted Shareholder may sell
or otherwise assign, with or without consideration, up to five percent (5%) of Equity Securities
now or hereafter held by such holder, to an entity wholly-owned by such holder, or to a spouse or
child of such holder, or to a trust, custodian, trustee, or other fiduciary for the account of any
of the foregoing, or to a trust for such holder’s account (collectively, the “Permitted
Transferees” and each, a “Permitted Transferee”) and such sale or assignment shall not be subject
to Sections 2.1, 2.2 or 2.3, provided that (i) only one transfer to Permitted Transferees
is permitted and any additional transfer by any holder of Equity Securities to a Permitted
Transferee shall require the prior consent of the Investor, which shall be determined at the
Investor’s sole discretion and such consent shall not be unreasonably withheld or delayed, (ii)
each such Permitted Transferee, prior to the completion of the sale, transfer, or assignment, shall
have executed documents, in form and substance reasonably satisfactory to the Holders, assuming the
obligations of the Restricted Shareholders under this Agreement, including but not limited to
Section 2.1 hereof, with respect to the transferred securities and (iii) each Permitted Transferee
shall have executed and delivered to the transferring Restricted Shareholder (with a copy to the
Company) an irrevocable, unconditional and permanent power of attorney, all in form and manner
reasonably satisfactory to the Holders, effective immediately after the closing of such sale or
assignment, appointing the transferring Restricted Shareholder (or such holder existing
attorney-in-fact) as such Permitted Transferee’s attorney-in-fact and authorizing him to vote, in
his absolute discretion as the attorney-in-fact of the Permitted Transferee, any and all Equity
Securities of the Company owned by such Permitted Transferee with respect to any Company related
matters.



     (c) Notwithstanding any provision to the contrary contained herein, any Transfer of Equity
Securities pursuant to the Option Agreements (as defined in the Share Exchange Agreement) shall
not be subject to the transfer restrictions hereunder.



     2.6 Change in Control. The Parties agree that, for purposes of the transfer restrictions in
this Agreement and in other Transaction Documents (as defined in the Share Exchange Agreement), a
transaction or series of transactions that result in a change in Control of a Shareholder shall
be deemed to constitute a Transfer of such Restricted Shareholders’ Equity Securities.



     2.7 Termination. The rights of Investor in this Section 2 will terminate on the completion
of a Qualified IPO or upon the merger of the Company into another entity.




	3.	 	Assignments and Transfers; No Third Party Beneficiaries.





     3.1 Except as otherwise provided herein, this Agreement and the rights and obligations of the
Parties hereunder shall inure to the benefit of, and be binding upon, their respective successors,
assigns and legal representatives, but shall not otherwise be for the benefit of any third party.
Except as otherwise provided herein, the rights of any Holder hereunder are only assignable in
connection with the transfer (subject to applicable securities and other Laws) of Equity
Securities held by such Holder but only to the extent of such transfer; provided,
however, that (i) the transferor shall, prior to the effectiveness of such transfer,
furnish to the Company written notice of the name and address of such transferee and the



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Equity Securities that are being assigned to such transferee, and (ii) such transferee shall,
concurrently with the effectiveness of such transfer, become a party to this Agreement as a Holder
and be subject to all applicable restrictions set forth in this Agreement. This Agreement and the
rights and obligations of any Party hereunder shall not otherwise be assigned without the mutual
written consent of the other Parties.




     3.2 The sale or transfer of any Equity Securities by the Holders shall not be subject to any
right of first refusal, co-sale rights or any other contractual conditions or restrictions on
transfer except as may be required by Law.




	4.	 	Drag-Along Rights.





     4.1 If, at any time after the second anniversary of July 2, 2009, there is (a) an offer
by a bona fide third party not affiliated with any Party to purchase all the Shares in the Company;
or (b) a merger or consolidation of the Company with or into another corporation in which the
Company is not the surviving entity; or (c) a sale or transfer of all or substantially all the
Company’s properties and assets to any bona fide third person not affiliated with any Party (each a
“Trade Sale”), then the Holders of at least sixty-seven percent (67%) of the outstanding Series A
Preferred Shares shall have the right to cause other shareholders of the Company to sell all of the
then outstanding Ordinary Shares, Series A Preferred Shares and all options, warrants or other
rights to acquire any such shares then held by them on the same terms and conditions when the price
offered by such third party is not lower than one point five (1.5) times the equity valuation of
the Company implied by the Series A Purchase Price immediately after the Closing, subject to change
in accordance with the Ancillary Agreements (the “Drag Along Election”), provided,
however, that the Founder shall have a pre-emptive right to buy all of the Equity
Securities of the Company held by the Investor under the same terms and conditions. The Drag
Along Election shall include the right on the part of the Investor to cause the holders of Ordinary
Shares to approve a sale of assets, merger, consolidation, corporations or exchange or
reorganization of the Company with or into any other corporations, corporation or other entity
(excluding any merger effected exclusively for the purpose of changing the domicile of the
Company), or any other transaction or series of related transactions, in which the shareholders of
the Company immediately prior to such reorganization, merger or consolidation own less than fifty
percent (50%) of the voting power of the surviving entity, or a sale, conveyance or other
disposition of all or substantially all of the assets of the Company to a third party (each a “Sale
Transaction”), provided, however, that in no event shall a holder of Ordinary
Shares be obligated to undertake the foregoing if the distribution of consideration received by the
shareholders upon consummation of the Sale Transaction is not in accordance with the liquidating
distribution requirements set forth in the Company’s then-current Memorandum of Association. The
Investor may exercise the Drag-Along Election by providing written notice of such election (the
“Drag-Along Notice” )to all shareholders of the Company, including the name and address of the
third party acquirer, the aggregate purchase price to be paid by such third party purchaser, the
proposed date for the closing of such Trade Sale, and the other material terms and conditions of
such Trade Sale. Within fifteen (15) days upon receipt of the Drag-Along Notice, if the Founder
doesn’t exercise the right to purchase all of the Equity Securities of the Company held by the
Investor under the same terms and conditions, then each shareholder of the Company shall execute
and deliver such instruments of conveyance and transfer and take such other action, including
executing any purchase agreements, merger agreements, indemnity agreements, escrow agreements or
related documents as the Investor or the acquirer in such Trade Sale may reasonably require in
order to carry out the terms and provisions of this Section 4.



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     4.2 Should the consideration to be paid in connection with the Trade Sale be payable in
property other than cash, the Investor and other shareholders of the Company agree and acknowledge
that the value of the consideration will be determined in accordance with the following
arrangement: (i) if the consideration to be paid in connection with the Trade Sale is for
publicly-traded securities, the value of the consideration to be paid shall be equal to the
average closing price based on a period of thirty (30) days prior the closing; or (ii) if the
consideration for the Trade Sale is not for publicly-traded securities, and the holders of
Ordinary Shares and Series A Preferred Shares cannot agree on such value with seven (7) days after
receipt of Drag-Along Notice by holders of Ordinary Shares, the valuation shall be made by an
appraiser of internationally recognized standing jointly selected by the holders of Ordinary
Shares and the Investor, whose appraisal shall be determinative of such value.



     4.3 The rights of Investor in this Section 4 will terminate on the completion of a Qualified
IPO.




	5.	 	Legend.





     Each existing or replacement certificate for shares now owned or hereafter acquired by any
Restricted Shareholder shall bear the following legend:




“THE SALE, PLEDGE, HYPOTHECATION, ASSIGNMENT OR TRANSFER OF THE SECURITIES
REPRESENTED BY THIS CERTIFICATE IS SUBJECT TO THE TERMS AND CONDITIONS OF A RIGHT
OF FIRST REFUSAL AND CO-SALE AGREEMENT BY AND BETWEEN THE MEMBER, THE COMPANY AND
CERTAIN HOLDERS OF SHARES OF THE COMPANY. COPIES OF SUCH AGREEMENTS MAY BE
OBTAINED UPON WRITTEN REQUEST TO THE SECRETARY OF THE COMPANY.”




	6.	 	Further Instruments and Actions.





     The Parties agree to execute such further instruments and to take such further action as may
reasonably be necessary to carry out the intent of this Agreement. Each Party agrees to cooperate
affirmatively with the other Parties, to the extent reasonably requested by another Party, to
enforce rights and obligations pursuant hereto.



7. Miscellaneous




     7.1 Governing Law.



     This Agreement shall be governed by and construed in accordance with the laws of Hong Kong as
to matters within the scope thereof and without regard to its principles of conflicts of laws.



     7.2 Notices.



     Any notice required or permitted pursuant to this Agreement shall be given in writing and
shall be given either personally or by next-day or second-day courier service, fax, electronic
mail or similar means to the address as shown below the signature of such Party on the signature
page of this Agreement (or at such other address as such Party may designate by fifteen (15)
days’ advance written notice to the other Parties to this Agreement given in accordance with this
Section). Where a notice is sent by next-day or second-day courier



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service, service of the notice shall be deemed to be effected by properly addressing,
pre-paying and sending by next-day or second-day service through an internationally-recognized
courier a letter containing the notice, with a confirmation of delivery, and by two (2) days
having passed after the letter containing the same is sent as aforesaid. Where a notice is sent by
fax or electronic mail, service of the notice shall be deemed to be effected on the same day on
which it is properly addressed and sent through a transmitting organization with a reasonable
confirmation of delivery.




     7.3 Entire Agreement.



     This Agreement, the Share Purchase Agreement and the exhibits hereto and thereto contain the
entire understanding of the Parties with respect to the subject matter hereof, and supersede all
other agreements between or among any of the Parties with respect to the subject matter hereof.



     7.4 Amendments and Waivers.



     Any term of this Agreement may be amended and the observance of any term of this Agreement
may be waived (either generally or in a particular instance and either retroactively or
prospectively), only with the written consent of each of (i) the Company, (ii) the Founder, and
(iii) the Investor. Any amendment or waiver effected in accordance with this paragraph shall be
binding upon the Parties and their respective successors and assigns.



     7.5 Severability.



     If one or more provisions of this Agreement are held to be unenforceable under applicable
law, such provision shall be excluded from this Agreement and the balance of the Agreement shall
be interpreted as if such provision were so excluded and shall be enforceable in accordance with
its terms.



     7.6 Attorney’s Fees.



     In the event that any dispute among the Parties arising from or in relation to this Agreement
should result in litigation, the prevailing Party in such dispute shall be entitled to recover
from the losing Party all fees, costs and expenses of enforcing any right of such prevailing Party
under or with respect to this Agreement, including, without limitation, such reasonable fees and
expenses of attorneys and accountants, which shall include, without limitation, all fees, costs
and expenses of appeals.



     7.7 Titles and Subtitles.



     The titles and subtitles used in this Agreement are used for convenience only and are not to
be considered in construing or interpreting this Agreement.



     7.8 Counterparts.



     This Agreement may be executed in two or more counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the same instrument. Facsimile and
e-mailed copies of signatures shall be deemed to be originals for purposes of the effectiveness
of this Agreement.



     7.9 Dispute Resolution.



10









 





     (a) Any dispute, controversy or claim arising out of or relating to this Agreement, or
the interpretation, breach, termination or validity hereof, shall first be subject to resolution
through consultation of the parties to such dispute, controversy or claim. Such consultation shall
begin within seven (7) days after one Party hereto has delivered to the other Parties involved a
written request for such consultation. If within thirty (30) days following the commencement of
such consultation the dispute cannot be resolved, the dispute shall be submitted to arbitration
upon the request of any Party with notice to the other Parties.



     (b) The arbitration shall be conducted in Hong Kong under the auspices of the Hong Kong
International Arbitration Centre (the “HKIAC”). There shall be three arbitrators. The complainant
and the respondent to such dispute shall each select one arbitrator within thirty (30) days after
giving or receiving the demand for arbitration. Such arbitrators shall be freely selected, and the
Parties shall not be limited in their selection to any prescribed list. The Chairman of the HKIAC
shall select the third arbitrator, who shall be qualified to practice law in Hong Kong and fluent
in English and Mandarin. If either party to the arbitration does not appoint an arbitrator who has
consented to participate within thirty (30) days after selection of the first arbitrator, the
relevant appointment shall be made by the Chairman of the HKIAC.



     (c) The arbitration proceedings shall be conducted in English. The arbitration tribunal shall
apply the Arbitration Rules of the HKIAC in effect at the time of the arbitration. However, if
such rules are in conflict with the provisions of this Section 7.9, including the provisions
concerning the appointment of arbitrators, the provisions of this Section 7.9 shall prevail.



     (d) The arbitrators shall decide any dispute submitted by the parties to the arbitration
strictly in accordance with the substantive laws of New York and shall not apply any other
substantive law.



     (e) Each Party hereto shall cooperate with any party to the dispute in making full disclosure
of and providing complete access to all information and documents requested by such party in
connection with such arbitration proceedings, subject only to any confidentiality obligations
binding on the Party receiving the request; all such requested information and documents can be
provided in English or Chinese with equal legal validity.



     (f) The award of the arbitration tribunal shall be final and binding upon the disputing
parties, and any party to the dispute may apply to a court of competent jurisdiction for
enforcement of such award.



     (g) Any party to the dispute shall be entitled to seek preliminary injunctive relief, if
possible, from any court of competent jurisdiction pending the constitution of the arbitral
tribunal.



     7.10 Rights Cumulative.



     Each and all of the various rights, powers and remedies of a Party hereto will be considered
to be cumulative with and in addition to any other rights, powers and remedies which such Party
may have at law or in equity in the event of the breach of any of the terms of this Agreement. The
exercise or partial exercise of any right, power or remedy will neither constitute the exclusive
election thereof nor the waiver of any other right, power or remedy available to such Party.



11









 





     7.11 No Waiver.



     Failure to insist upon strict compliance with any of the terms, covenants, or conditions
hereof will not be deemed a waiver of such term, covenant, or condition, nor will any waiver or
relinquishment of, or failure to insist upon strict compliance with, any right, power or remedy
power hereunder at any one or more times be deemed a waiver or relinquishment of such right, power
or remedy at any other time or times.



     7.12 No Presumption.



     The Parties acknowledge that any applicable law that would require interpretation of any
claimed ambiguities in this Agreement against the Party that drafted it has no application and is
expressly waived. If any claim is made by a Party relating to any conflict, omission or ambiguity
in the provisions of this Agreement, no presumption or burden of proof or persuasion will be
implied because this Agreement was prepared by or at the request of any Party or its counsel.



     7.13 Confidentiality.



     The terms and conditions of this Agreement, all exhibits and schedules attached hereto and
thereto, and the transactions contemplated hereby and thereby, including their existence, shall be
considered confidential information and shall not be disclosed by any Party hereto to any third
party except as permitted in accordance with the Share Exchange Agreement.



[Remainder of page intentionally left blank; signature pages to follow]











12









 









	 	 	IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first
written above.





	 	 	 	 	 
	COMPANY: 	 NOBAO RENEWABLE ENERGY HOLDINGS LIMITED

 	 
	 	By:  	/s/ Sun Kwok Ping
 	 
	 	 	Name:  	Sun Kwok Ping 	 
	 	 	Title:  	Director
 	 
	 	 	Address: 	
Building No. 4, 150 Yong He Road, Shanghai,
China, 200072
 	 
	 	 	Fax:      	
   86-21-6631-2459 	 
	 
	EASTERN WELL:  	EASTERN WELL HOLDINGS LIMITED

 	 
	 	By:  	/s/ Sun Kwok Ping
 	 
	 	 	Name:  	Sun Kwok Ping 	 
	 	 	Title:  	Director
 	 
	 	 	Address:   	
Building No. 4, 150 Yong He Road, Shanghai,
China, 200072
 	 
	 	 	Fax:      	
   86-21-6631-2459 	 
	 



[Signature Page to Right of First Refusal and Co-Sale Agreement]








 









 









     IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first
written above.



	 	 	 	 	 
	FOUNDER: 	 	/s/ Sun Kwok Ping
 	 
	 	 	SUN KWOK PING
 	 
	 	 	Address: 	
Building No. 4, 150 Yong He Road, Shanghai,
China, 200072
 	 
	 	 	Fax:      	
   86-21-6631-2459 	 
	 



[Signature Page to Right of First Refusal and Co-Sale Agreement]








 









 









	 	 	IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first
written above.





	 	 	 	 	 
	INVESTOR: 	 CHINA ENVIRONMENT FUND III, E.P.

 	 
	 	/s/ Donald Chang Ye
 	 
	 	Name:  	Donald Chang Ye 	 
	 	Title:  	Authorized Signatory
 	 
	 	Address: 	
A2302, SP Tower, Tsinghua Science Park, Beijing 100084 China
 	 
	 	Fax:      	
   86-10-8215-1150 	 
	 



[Signature Page to Right of First Refusal and Co-Sale Agreement]









 









 







     IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first
written above.



	 	 	 	 	 
	OTHER ORDINER HOLDER: 	WIDE SAFETY INTERNATIONAL LIMITED

 	 
	 	/s/ Ren Jin Hua
 	 
	 	Name:  	 	 
	 	Title:  	 	 
	 	Address:  	 	 
	 	Fax:  	 	 
	 



[Signature Page to Right of First Refusal and Co-Sale Agreement]








 









 









     IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the date first
written above.



	 	 	 	 	 
	PRC COMPANIES : 	


NOXIN ENERGY TECHNOLOGY (SHANG HAI) CO., LTD

()
 	 
	 	By:  	/s/ Sun Kwok Ping
 	 
	 	 	Name:  	Sun Kwok Ping 	 
	 	 	Title:  	Legal Representative
 	 
	 	 	Address: 	
Building No. 4, 150 Yong He Road, Shanghai,
China, 200072
 	 
	 	 	Fax:      	
   86-21-6631-2459 	 
	 
	 	JIANGXI NOBAO ELECTRIC CO., LTD

()
 	 
	 	By:  	/s/ Sun Kwok Ping
 	 
	 	 	Name:  	Sun Kwok Ping 	 
	 	 	Title:  	Legal Representative
 	 
	 	 	Address:   	
Building No. 4, 150 Yong He Road, Shanghai,
China, 200072
 	 
	 	 	Fax:      	
   86-21-6631-2459 	 



[Signature Page to Right of First Refusal and Co-Sale Agreement]








 









 








SCHEDULE
1





     “Affiliates” means, with respect to a Person, any other Person that, directly or indirectly,
Controls, is Controlled by or is under common Control with such Person.



     “Agreement” has the meaning set forth in the Preamble hereof.



     “Board” or “Board of Directors” means the board of directors of the Company.



     “Company” has the meaning set forth in the Preamble hereof.



     “Control” of a given Person means the power or authority, whether exercised or not, to direct
the business, management and policies of such Person, directly or indirectly, whether through the
ownership of voting securities, by contract or otherwise, which power or authority shall
conclusively be presumed to exist upon possession of beneficial ownership or power to direct the
vote of more than fifty percent (50%) of the votes entitled to be cast at meetings of the members
or shareholders of such Person or power to control the composition of a majority of the board of
directors of such Person; the terms “Controlling” and “Controlled” have meanings correlative to
the foregoing.



     “Co-Sale Re-allotment Notice” has the meaning set forth in Section 2.3(c) hereof.



     “Co-Sale Selling Holders” has the meaning set forth in Section 2.3(c) hereof.



     “Drag-Along Election” has the meaning set forth in Section 4.1 hereof.



     “Drag-Along Notice” has the meaning set forth in Section 4.1 hereof.



     “Eastern Well” has the meaning ascribed to it in the Preamble hereof.



     “Equity Securities” means any Ordinary Shares and/or Ordinary Share Equivalents of the
Company.



     “Founder” has the meaning ascribed to it in the Preamble hereof.



     “Governmental Authority” means any nation or government or any province or state or any
other political subdivision thereof; any entity, authority or body exercising executive,
legislative, judicial, regulatory or administrative functions of or pertaining to government,
including without limitation any government authority, agency, department, board, commission or
instrumentality of the PRC, Hong Kong or the Cayman Islands or any political subdivision thereof,
any court, tribunal or arbitrator, and any self-regulatory organization.



     “HKIAC” has the meaning set forth in Section 7.9(a) hereof.



     “Holder” means the Investor, together with the permitted transferees and assigns of the
Investor who become parties to this Agreement.



     “Holder Transfer Notice” has the meaning section forth in Section 2.2(b) hereof.



     “Hong Kong” means the Hong Kong Special Administrative Region of the PRC.



     “Investor” has the meaning ascribed to it in the Preamble hereof.



 









 





     “Jiangxi Nobao” has the meaning ascribed to it in the Preamble hereof.



     “Law” means any constitutional provision, statute or other law, rule, regulation, official
policy or interpretation of any Governmental Authority and any injunction, judgment, order,
ruling, assessment or writ issued by any Governmental Authority.



     “Liquidation Event” means (i) any liquidation, winding-up, or dissolution of the Company,
(ii) any consolidation, amalgamation, share acquisition or merger of the Company with or into any
Person, or any other corporate reorganization, including a sale or acquisition of Equity
Securities of the Company, in which the members of the Company immediately before such transaction
own less than fifty percent (50%) of the Company’s voting power immediately after such transaction
(excluding any transaction effected solely for tax purposes or to change the Company’s domicile);
(iii) a sale of all or substantially all of the assets of the Company; or (iv) the exclusive
licensing of all or substantially all of the Company’s intellectual property to a third party
(excluding any transaction effected solely for the Company’s internal restructuring).



     “Memorandum and Articles” means the Company’s Memorandum and Articles of Association, as
amended and restated from time to time.



     “Offered Shares” has the meaning set forth in Section 2.2(a) hereof.



     “Ordinary Shares” means the Company’s ordinary shares, par value US$0.001 per share.



     “Ordinary Share Equivalents” means warrants, options and rights exercisable for Ordinary
Shares or securities convertible into or exchangeable for Ordinary Shares, including, without
limitation, the Series A Preferred Shares.



     “Other Ordinary Holder” has the meaning ascribed to it in the Preamble hereof.



     “Party” has the meaning set forth in the Preamble hereof.



     “Permitted Transferee” has the meaning set forth in Section 2.5(b) hereof.



     “Person” means any individual, corporation, partnership, limited partnership,
proprietorship, association, limited liability company, firm, trust, estate or other enterprise
or entity.



     “PRC” means the People’s Republic of China, but solely for the purposes of this Agreement,
excluding the Hong Kong Special Administrative Region, Macau Special Administrative Region and
Taiwan.



     “PRC Companies” means Shanghai Nuoxin and Jiangxi Nobao.



     “Purchasing Holders” has the meaning set forth in Section 2.2(c) hereof.



     “Qualified IPO” has the meaning given to such term in the Memorandum and Articles, as
amended and restated from time to time.



     “Re-allotment Notice” has the meaning set forth in Section 2.2(c) hereof.



 









 





     “Restricted Shareholder” has the meaning set forth in Section 2.1(a) hereof.



     “Sale Transaction” has the meaning set forth in Section 4.1 hereof.



     “Selling Holder” has the meaning set forth in Section 2.3 hereof.



     “Series A Preferred Shares” means any and all of the Company’s Series A Preferred Shares, par
value US$0.001 per share, with the rights and privileges as set forth in the Memorandum and
Articles.



     “Shanghai Nuoxin” has the meaning ascribed to it in the Preamble hereof.



     “Shares” means the Company’s Ordinary Shares and/or Series A Preferred Shares.



     “Share Exchange Agreement” has the meaning set forth in the Recitals hereof.



     “Transfer” or “Transferor” has the meaning set forth in Section 2.2(a) hereof.



     “Transfer Notice” has the meaning set forth in Section 2.2(a) hereof.



     “Trade Sale” has the meaning set forth in Section 4.1 hereof.