Equity Assignment Contract
EXHIBIT
10.11
Assignor
(Party A): FORTUNE LUCK GLOBAL INTERNATIONAL LIMITED
Address:
Plam Grove House, P. O. Box 438,
Road
Town, Tortola, British Virgin Islands
Legal
Representative: He Xiao
Assignee
(Party B): China Water Group Incorporation
Address:
000 Xxxxx Xxxxxx Xxxxxx Xxxx, Xxxxx 000,
Xxx
Xxxxx, Xxxxxx XXX 8910-1674
Legal
Representative: Pu Zhongliang
The
Contract was concluded between both Parties on December 31, 2007 in
Guangzhou.
Whereas:
A. Party
A, as a shareholder of Guangzhou Xinchen Water Co., Ltd. (hereinafter refer to
as Guangzhou Xinchen) agrees to assign 90% equity in Guangzhou Xinchen to Party
B.
B.
Guangdong Xinchen has Dagu Glacier Spring project in operation and invested 100%
of the capital for developing to the project in the name of Aba Xinchen Dagu
Glacier Spring Co., Ltd. (hereinafter refer to as Dagu Co.). Party A agrees at
its free will to assign 90% equity in Guangzhou Xinchen held by it and the
corresponding shareholder’s rights (jointly refers to the Shares Assigned) in
Dagu Co. to Party B in accordance with the articles as specified in the
Contract.
C. Party
B agrees at its free will to acquire the aforesaid shares to be assigned to
Party A in accordance with the provisions as specified in the
Contract.
D.
Guangzhou Xincheng’s other shareholders have given up the priority to purchase
the shares to be assigned.
Through
consultation, both Party A and Party B agree to the following articles
concerning assignment of 90% equity in Guangzhou Xinchen Water Co.,
Ltd.
1.
Acquisition and sales of the equity
1.1.
Acquisition and sales
Party B
agrees, approved by its board of directors through resolution, to acquire from
Party A and Party A agrees at its free will to sell 90% equity in Guangzhou
Xinchen held by it. Party A commits that with the exception of the liabilities
as confirmed by both Parties, there is no other liabilities involved in the
company which is going to sell the equity. The equity to be assigned shall bear
no lien, hypothecation, mortgage with the property right or restriction on other
property rights. In case Party B has found any unidentified liabilities or
guarantee, mortgage with the property right in the company in process of the
acquisition period or after the acquisition, Party A shall pay all the losses
arising therefrom to Party B. Party B shall then pay the consideration to Party
A for the shares as assigned in a form of cash and shares.
Upon
assignment of the Contract and the first payment, Party B shall hold 90% equity
in Guangzhou Xinchen, assets and the corresponding shareholders’ rights and
interests in Aba Xinchen Guangzhou Xinchen, and Party A shall no longer be the
company’s shareholder, no longer enjoys the shareholder’s rights and interests
in the Company and shall be no longer entitled to conduct any operation or civil
activities in the name of the company.
1.2 Description
of the equity assignment
The
equity to be assigned is the 90% equity in Guangzhou Xinchen Water Co., Ltd.
(Guangzhou Xinchen holds 100% equity in Aba Xinchen Dagu Glacier Spring Co.,
Ltd.), including the bottled water factory, the first phase of the project of
glacier spring factory of Dagu Co. which has been put into production with daily
capacity of 150,000 bottles, 50 years’ exclusive operation of the water
resource, the use right of 16,290.08 m2 of land
covered by the factory, the property title, intellectual property, trademark,
etc.
1.3
Payment
Through
mutual consultation of Party A and Party B, the total consideration for the
equity to be assigned is US$ 13.45 million, including US$ 7.5 million in cash
and US$ 5.95 million in cheque. The payment shall be made in the following
way:
1.3.1
Party B shall remit the first installment amounting to US$4.18 million to the
account of Guangdong Xinxingmei Water Co., Ltd., Party B’s subsidiary, opened
with the bank designated by Party A and bearing Party A’s company seal. within
ten days upon subscription of the Contract (in case any change takes place in
the way of payment, Party A shall notify Party B by means of the power of
attorney for payment). Party B shall pass the payment to Party A after the
application for change of the equity is submitted to and accepted by the
registration authority.
1.3.2 The
balance, amounting to US$ 3.32 million shall be paid up within one year after
the completion of the procedures for the equity transfer.
1.3.3 For
the shares equivalent to US$ 5.95 million, the price of the shares shall be
calculated based on US$ 0.2 per share with total of 29.75 million shares. The
shares are held by Party A. The time limit of the shares is one year commencing
from the date of issuing the shares.
Party B
should give the shares to Party within twenty-four months upon execution of the
Contract.
2. Date
of Coming into Force and the Matters prior to the settlement.
2.1 Date
of Coming into Force
The
Contract shall come into force upon subscription of the Contract by both
Parties’ legal representatives.
2.2
Approval by the Governmental Authority and the Registration
Upon
execution of the Contract, the assignment under “the shares to be assigned”
should be applied for change of registration with the registration authority
according to the local law and regulations. Both Parties should assist the
company in preparation of all the documents required by the registration
authority or examination and approval authority and Party A shall be responsible
for submitting the documents to the relevant authority for examination and
approval.
3.
Settlement
In the
Contract, “settlement” refers to the time of completion of the transaction as
specified in the Contract. “Settlement” shall be made on the date as specified
by both Parties. In any case, the time should not be later than 30 days after
approval of the assignment of the “shares to be assigned” by the registration
examination and approval authority. “Settlement” shall be carried out at the
place designated by both Parties.
4. Both
Parties’ Obligations
4.1 Party
A’s obligations
At the
time of “settlement”, Party A should provide Party B with the following
documents:
(a) A
copy of the certificate issued by the authority to certify that Party B has got
90% equity in Guangzhou Xinchen.
(b)
Resolution of Party A’s board of directors on execution, delivery and
implementation of the Contract and authorizing its representative to subscribe
the Contract.
(c) Upon
execution of the Contract, Party B should assist Party A in handling the
procedures for examination and approval, alteration and registration of the
equity.
4.2 Party
B’s Obligations
(a) The
amount as specified in Article 1.2 of the Contract: In case Party B fails to
timely pay the consideration of the equity assignment according to the Contract,
Party B should pay a penalty fine to Party A at the rate of 0.02% of the total
amount involved in the delayed payment for each day delayed.
(b)
Resolution of Party B’s board of directors on execution, delivery and
implementation of the Contract and authorizing its representative to subscribe
the Contract.
(c) Upon
execution of the Contract, Party B should assist Party A in handling the
procedures for examination and approval, alteration and registration of the
equity.
5.
Presentation and Guarantee
(a) Party
A guarantees that the equity to be assigned to Party B is legally held by Party
A without any mortgage or any other guarantee involved so as to prevent any
third party from recourse and the company has never borrowed any money or owed
any liabilities; Guangzhou Xinchen’s and Dagu Co.’s liabilities shall be assumed
by Party A and Party A shall assume the corresponding legal
responsibilities.
(b) Both
Party A and Party B have all necessary powers and approval to execute and
deliver the Contract and implementation of the obligations as specified in the
Contract.
(c) Both
Party A and Party B have taken all internal actions necessary for execution of
the Contract and has fully authorized their respective representative to sign
the Contract and specified the binding force.
(d) Being
signed by the authorized representatives of both Parties to the Contract, the
Contract shall bear the legal force;
(e)
Regardless of execution of the Contract or implementation of the obligations
specified in the Contract, neither Party shall conflict or lead to violate or
breach any provisions of the Articles of Association or any law, rules,
regulations, authorization, any contract or agreement approved by any
governmental authority or with it as a party or subject in force at the time of
execution of the Contract;
(f) All
the information concerning the transaction furnished by either Party is true,
accurate and complete, shall not cause any misleading in any aspect. All the
presentation and guarantee are true, accurate and complete in all material
aspects on the date of execution of the Contract and shall remain true, accurate
and complete in all material aspects at the time of settlement (as if such
presentation and guarantee were newly made at the time of settlement excluding
the influence caused by the transaction as specified or allowed by the
Contract.)
6.
Special Provisions
6.1
Composition of the Board of Directors
Upon
assignment of the equity, the company should establish new board of directors
which shall implement the duties of the board of directors according to the
Company Law: to convene the shareholders’ meeting, implement the resolutions of
the shareholders’ meeting and submit work report to the shareholders’ meeting,
including but not limited to decision making on the Company’s significant
events, such production and operation, investment, finance, personnel affairs,
etc.
7.
Confidentiality
7.1
Obligation of keeping confidential
Party A
and the company should keep all the information confidential; must disclose the
information for purpose other than that of the Contract and must not disclose
the information to any third party.
Subject
to the general applicability of the aforesaid provision, the Seller may disclose
confidential information to its shareholders or the Seller, or the Company’s
employees, directors and professional consultant but to the extent of reasonable
requirement to satisfy the purpose of the Contract. The Seller should ensure the
company’s shareholders, employees, directors and professional consultants to
abide by the obligation of keeping confidential.
7.2
Confidential Information
The
Confidential Information in 7.1 of the Contract refers to the company’s business
operation, business strategy, business plan, investment plan, products, sales,
customers, employees, technology, financial information or all the information
in connection with other business or any connection both in oral or writing
form, including but not limited to all reports, records, all reproductions
(including electronic reproductions), duplicates, reprints and translation which
contain such information.
8. Force
Majeure
8.1 Force
Majeure
Force
Majeure refers to all the events unforeseeable, unavoidable or unconquerable as
the result of its occurrence or consequence which may prevent any Party to the
Contract from implementing the Contract entirely or partially upon execution of
the Contract. Such events include earthquake, typhoon, flood, fire, war,
domestic or international traffic jam, action taken by the government or any
public institution, infectious diseases, civil riot, strike and other events
which are unavoidable or conquerable.
8.2
Implementation Suspension
In case a
force majeure event takes place, the affected party has the obligation to
suspend the implementation of the Contract during the delay caused by the force
majeure and the implementation shall be postponed automatically and the affected
party shall assume no responsibility for failure of implementation of the
Contract.
8.3 Force
Majeure Notice
The Party
affected by the force majeure should immediately notify in writing the other
Party as soon as possible and then provide sufficient evidence of the occurrence
and duration of the force majeure event within 15 days afterwards.
8.4
Settlement
In case
of occurrence of force majeure, both Parties should look for a fair solution to
settle the issue through mutual consultation as soon as possible and devote all
reasonable efforts to reduce the influence from the force majeure to the
minimum.
9.
Applicable Law
The
Contract shall apply the Chinese law and shall be interpreted according to the
Chinese law.
10.
Dispute Settlement
10.1
Consultation and Arbitration
Any Party
to the Contract should submit any dispute or claim arising from the Contract for
arbitration. An arbitration should be carried out by three arbitrators from the
International Court of Arbitration of International Chamber of Commerce
according to the arbitration rules of International Chamber of Commerce. The
language for the arbitration shall be English. The arbitration award shall be
final and have the binding force to both Parties. Both Parties agree that such
arbitration award may be implemented at any court with jurisdiction over both
Parties to the Contract.
10.2
Influence from the Arbitration Process
The
starting of arbitration process should not cause termination of the Contract;
the Contract shall keep effective before an arbitrator makes any arbitration
reward.
11.
Miscellaneous
11.1
Non-waiving
That any
Party to the Contract fails or delays to implement any rights of the Contract
shall not be considered that the Party has given up the right. Independent or
partial implementation of any right in the contract shall not be considered as
possibility of other implementation of such rights in future.
11.2
Amendment
The
Contract is concluded for both Parties to the Contract, their legal successors
and consignees and has the legal force over them. Any amendment of the Contract
shall be approved in writing by subscription of both Parties.
11.3
Divisibility
Invalidity
of any provision of the Contract shall not affect the effectiveness of any other
provisions of the Contract.
11.4
Versions
The
Contract is prepared in quadruplicate and both Party A and Party B shall hold
two copies each.
11.5
Entire Contract
The
Contract and its appendixes shall form the entire contract concerning both
Parties’ main purpose of the Contract and shall replace all the discussions,
consultations and agreements concerning the main purpose of the
Contract.
Party A:
FORTUNE LUCK GLOBAL INTERNATIONAL LIMITED
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Authorized
Signature
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Party
B: China Water Group Incorporation
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Signature:
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