Equity Interest Transfer Agreement Regarding Chengdu Twin-Peak Accelerator Technology Inc. Among Sichuan Nanguang Vacuum Technology Incorporated Ltd. And Yao Chongguo And TomoTherapy Incorporated Date: September 11, 2008
Exhibit 10.1
Execution Version
Regarding
Chengdu Twin-Peak Accelerator Technology Inc.
Among
Sichuan Nanguang Vacuum Technology Incorporated Ltd.
And
Yao Chongguo
And
TomoTherapy Incorporated
Date: SeptemberΒ 11, 2008
Confidential treatment has been requested for portions of this exhibit. The copy filed herewith
omits the information subject to the confidentiality request. Omissions are designated as [ * ].
A complete version of this exhibit has been filed separately with the Securities and Exchange
Commission.
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Execution Version
Contents
Β | Β | Β | Β | Β |
Chapter | Β | Page | Β | |
ArticleΒ 1 Definitions |
Β | Β | 2 | Β |
ArticleΒ 2 Target Equity Interest |
Β | Β | 4 | Β |
ArticleΒ 3 Transfer Price and Conditions to Payment of Transfer Price |
Β | Β | 4 | Β |
ArticleΒ 4 Transfer of Target Equity and Closing Dates |
Β | Β | 6 | Β |
ArticleΒ 5 Representations and Warranties of Each Party |
Β | Β | 7 | Β |
ArticleΒ 6 Covenants of the Transferors |
Β | Β | 16 | Β |
ArticleΒ 7 Conditions Precedent to Closings |
Β | Β | 23 | Β |
ArticleΒ 8 Indemnification |
Β | Β | 30 | Β |
ArticleΒ 9 Termination |
Β | Β | 32 | Β |
ArticleΒ 10 Assumption of Taxes and Other Fees |
Β | Β | 32 | Β |
ArticleΒ 11 Force Majeure |
Β | Β | 33 | Β |
ArticleΒ 12 Miscellaneous |
Β | Β | 33 | Β |
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This Equity Interest Transfer Agreement (the βAgreementβ) is entered into as of SeptemberΒ 11, 2008
(the βExecution Dateβ) by and among the following parties at Chengdu, the Peopleβs Republic of
China (βPRCβ or βChinaβ):
Sichuan Nanguang Vacuum Technology Incorporated Ltd., a company established under the laws of the
PRC, having its registered office at Longtan City Industry Zone, Second Section of East Third Ring
Road, Chengdu, with Xxx Xxxxxx, a PRC citizen, as its current chairman of the board of directors
and legal representative (βNanguangβ);
Yao Chongguo, a citizen of the United States (βYao Chongguoβ, together with Nanguang, the
βTransferorsβ, each a βTransferorβ); and
TomoTherapy Incorporated, a company established under the laws of the State of Wisconsin, having
its registered office at 0000 Xxxxxx Xxx, Xxxxxxx, Xxxxxxxxx, XXX (the βTransfereeβ).
Each of the Transferors and the Transferee shall be respectively referred to as a βPartyβ, and
shall be collectively referred to as the βPartiesβ.
Whereas:
1. | Β | Chengdu Twin-Peak Accelerator Technology Inc. (the βCompanyβ) is a Sino-foreign equity joint
venture established on AprilΒ 28, 2005 under the laws of the PRC, having its registered office
at Longtan City Industry Zone, Second Section of East Third Ring Road, Chengdu. The current
registered capital of the Company is RMB7,000,000, and the legal representative of the
Company is Xxx Xxxxxx. The scope of business as set forth in the most updated business
license of the Company issued on JulyΒ 4, 2007 (the βBusiness Licenseβ) is as follows:
researching, developing, and consultations on accelerator technology; manufacturing and
distributing accelerator products, accelerating tubes and relevant parts; designing,
manufacturing, distributing special vacuum equipment and special electronic equipment and
providing engineering services; export of self-manufactured products and technologies; import
of raw materials, apparatus and instruments, mechanical equipment, parts and fittings, and
technologies for self-manufacturing (if the State has special regulations on any of the
aforementioned businesses, such regulations shall be followed). |
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2. | Β | The Transferors currently hold 100% of the equity interest in the Company, with Nanguang
holding 65% of the equity interest in the Company and Yao Chongguo holding 35% of the equity
interest in the Company. |
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3. | Β | The Transferors are willing to sell 100% of the equity interest in the Company to the
Transferee in accordance with the terms and conditions contemplated herein, and the
Transferee is willing to purchase 100% equity interest in the Company from the Transferors in
accordance with the terms and conditions contemplated herein. |
NOW, THEREFORE, the Parties hereby agree as follows:
ArticleΒ 1 Definitions
Unless otherwise provided herein, the following terms shall have the meanings set out below:
1.1 | Β | Affiliate: for the purposes of this Agreement, an Affiliate of any person or
entity includes any corporation, partnership, joint venture or other entity or natural
person controlling such person/entity, or being controlled by such person/entity or under
the common control with such person/entity; when a person/entity has the capacity to
directly or indirectly lead or cause to lead the operations and policies of another
person/entity through holding voting securities, contractual arrangement or any other
form, then the former shall be deemed as βcontrollingβ the latter. |
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1.2 | Β | Approving Authority: the competent Chinese government authority which has
the authority to approve this Agreement and the equity interest transfer contemplated
hereunder, i.e. the PRC Ministry of Commerce and/or the local branch authorized by it. |
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1.3 | Β | Effective Date: the date when this Agreement is approved by the Approving
Authority. |
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1.4 | Β | Encumbrances: any mortgage, pledge, lien, option, restrictions, right of
first refusal, preemptive rights, rights or interests of any other party, or other
restrictions on rights, any form of security interests, or any form of preferential
arrangements with similar effect. |
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1.5 | Β | Intellectual Property Rights: all the rights worldwide arising from or
relating to the following, regardless of whether it is protected, created or arises based
on the laws of the PRC or other jurisdictions: (1)Β copyrights; (2)Β patents; (3)Β non-patent
technologies; (4)Β know-how; (5)Β trademarks and domain names; (6)Β any other intellectual
property rights, proprietary rights and rights with the similar nature; and (7)Β all
applications, registrations and rights of obtaining permits or licenses which is relating
to any of the aforementioned (1)Β to (6). |
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1.6 | Β | Longtan Commission: the Administrative Commission of Longtan City Industry
Zone of Chengdu Municipality, China. |
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1.7 | Β | Longtan Facility: any and all plants, other buildings and work in progress on
the Longtan Land. |
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1.8 | Β | Longtan Land: a piece of land located at the Longtan City Industry Zone,
Second Section of East Third Ring Road, Chengdu, PRC, with a size of 6.99 Mus, as
stipulated in certain land use right transfer agreement between the Company and the
Longtan Commission dated as of MarchΒ 18, 2006 and certain supplementary land use right
transfer agreement between the Company and the Longtan Commission dated as of MarchΒ 18,
2006. |
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1.9 | Β | Longtan Project: LUR to the Longtan Land, Longtan Facility and any and all
contracts, agreements and instruments related thereto. |
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1.10 | Β | LUR: the state-owned land use rights pertaining to a certain piece of land. |
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1.11 | Β | Linac: linear accelerator tube, one type of products manufactured by the
Company. |
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1.12 | Β | Mu: a unit of size. 1 Mu equals to 666.6667 square meters. |
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1.13 | Β | New Business License: the new business license issued to the Company upon
the transfer of the Target Equity to the Transferee and the transformation of the Company
from a Sino-foreign equity joint venture to a wholly foreign-owned enterprise. |
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1.14 | Β | Purchase Price: the purchase price of the Target Equity set forth in Section
3.1 hereof. |
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1.15 | Β | PRC: the Peopleβs Republic of China, and for the purpose of this Agreement
shall exclude Hong Kong Special Administrative Region, Macao Special Administrative
Region, and Tai Wan Area. |
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1.16 | Β | PRC Laws: any effective national and local laws, regulations, rules and
decrees of the Peopleβs Republic of China. |
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1.17 | Β | Target Equity: the 100% equity interest in the Company which is currently
held by the Transferors. |
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1.18 | Β | Test Land: a piece of land located at the Longtan City Industry Zone, Second
Section of East Third Ring Road, Chengdu, PRC, with a size of 3 Mus and stipulated in
certain land use right transfer agreement between the Company and the Longtan Commission
dated as of AugustΒ 1, 2006. |
ArticleΒ 2 Target Equity Interest
The Transferors agree to transfer 100% of the equity interest in the Company held by the
Transferors (the βTarget Equityβ) to the Transferee, and the Transferee agrees to purchase the
Target Equity from the Transferors in accordance with the terms and conditions contemplated
hereunder.
ArticleΒ 3 Transfer Price and Payment of Transfer Price
3.1 | Β | The Transferors and the Transferee agree that the purchase price of the Target Equity
transferred by the Transferors to the Transferee shall be Renminbi [ * ] (RMB [ * ])
(βPurchase Priceβ) in total. Of the Purchase Price, Renminbi [ * ] (RMB [ * ]) shall be
paid to Nanguang and Renminbi [ * ] (RMB [ * ]) shall be paid to Yao Chongguo. The
Transferee will pay the Purchase Price in US Dollar. The Renminbi/US Dollar exchange rate
to be applied shall be the average rate between the buying rate and the selling rate
published by Peopleβs Bank of China on the day of the payment of the Purchase Price. |
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3.2 | Β | The Transferee shall pay the Purchase Price described in the aforementioned Section
3.1 hereof to the Transferors in three installments in accordance with the following
schedule: |
Β | 3.2.1 | Β | First Installment (the βFirst Installmentβ): RMB [ * ] shall be
paid to
the Transferors within thirty (30)Β days following the execution and delivery of
the compliance certificate in the form attached as AppendixΒ II-A by the
Transferors upon satisfaction of all the preconditions stipulated in SectionΒ 7.1
hereof or upon the waiver of such preconditions by Transferee in accordance with
SectionΒ 7.1, RMB [ * ] shall be paid to Nanguang and RMB [ * ] shall be paid to
Yao Chongguo. |
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Β | 3.2.2 | Β | Second Installment (the βSecond Installmentβ): The amount of the
Second Installment shall be RMB [ * ], among which RMB [ * ] (the βActually Paid
Second Installmentβ) shall be paid to the Transferors prior to 31st,
July, 2009 upon satisfaction of all the preconditions stipulated in SectionΒ 7.3
hereof or upon the waiver of such preconditions by Transferee in accordance with
SectionΒ 7.3, and the remaining RMB [ * ] (the βGuarantee Fundβ) shall be held back
by the Transferee at the Second Closing to guarantee that the Company will not
have any indemnity obligations arising from any customer claims (the βPrior
Customer Claimsβ) in connection with any services provided by the Company or any
products produced by the Company prior to the issuance date of the New Business
License. Of such RMB [ * ], RMB [ * ] shall be paid to Nanguang and RMB [ * ]
shall be paid to Yao Chongguo. The Guarantee Fund shall be paid by the Transferee
to the Transferors pro rata between Nanguang and Yao Chongguo at the end of
30th day after the Second Closing Date by deducting any indemnity (if
any) made by the Company to any customers arising from any Prior Customer Claims. |
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Β | 3.2.3 | Β | Third Installment (the βThird Installmentβ): RMB [ * ] shall be paid
to the Transferors prior to 31st JulyΒ 2010 upon satisfaction of all the
preconditions stipulated in SectionΒ 7.4 hereof or upon the waiver of such
preconditions by Transferee in accordance with SectionΒ 7.4. Of such RMB [ * ],
RMB [ * ] shall be paid to Nanguang and RMB [ * ] shall be paid to Yao Chongguo. |
3.3 | Β | The payment of the Purchase Price as contemplated in SectionΒ 3.2 shall be
respectively remitted to the bank account of each Transferor designated by such Transferor
in writing. |
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ArticleΒ 4 Transfer of Target Equity and Closing Dates
4.1 | Β | Transfer of Target Equity. Each of the Transferors hereby agrees that, the
ownership of the Target Equity and any rights and interests related to or derived from
this ownership shall be transferred from each Transferor to the Transferee upon the
issuance date of the New Business License, and shall be vested in the Transferee
thereafter. |
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4.2 | Β | Initial Closing Date. The Transferee shall pay the First Installment of the
Purchase Price pursuant to SectionΒ 3.2.1 and SectionΒ 3.3 hereof to the Transferors (the
βInitial Closingβ). The day of payment of the First Installment of Purchase Price shall
be the initial closing date (the βInitial Closing Dateβ). |
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Β | Β | Immediately upon that the Transferee provides the Transferors with the remittance evidence
issued by the bank of the Transferee to demonstrate that the First Installment has been
remitted into the bank accounts designated by the Transferors pursuant to this Agreement, the
Transferors shall conduct procedures for obtaining the New Business License of the Company,
the Companyβs foreign exchange certificate alteration procedures and the foreign exchange
registration procedures for the Transfer Price with local foreign exchange administration
authorities; upon receipt of approval documents issued by the local foreign exchange
administration authorities, the Transferors will handle foreign exchange settlement
procedures with the bank. |
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4.3 | Β | Delivery of Documents on the Initial Closing Date. On the Initial Closing
Date, the Transferors shall deliver all the documents and records relating to the Target
Equity to the Transferee, in order to ensure the smooth take over of the Target Equity by
the Transferee. |
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4.4 | Β | Second Closing Date. The Transferee shall pay the Actually Paid Second
Installment of the Purchase Price pursuant to SectionΒ 3.2.2 and SectionΒ 3.3 hereof to the
Transferors (the βSecond Closingβ). The day of payment of the Actually Paid Second
Installment of Purchase Price shall be the second closing date (the βSecond Closing
Dateβ). |
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4.5 | Β | Third Closing Date. The Transferee shall pay the Third Installment of the
Purchase Price pursuant to SectionΒ 3.2.3 and SectionΒ 3.3 hereof to the Transferors (the
βThird Closingβ). The day of payment of the Third Installment of Purchase Price shall be
the third closing date (the βThird Closing Dateβ). |
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ArticleΒ 5 Representations and Warranties
5.1 | Β | The Transferors hereby represent and warrant to the Transferee, severally and
jointly, on the Execution Date of this Agreement and the issuance date of the New Business
License as follows: |
Β | 5.1.1 | Β | Lawful Rights. Nanguang is a limited liability company duly
incorporated and validly existing under the PRC Laws that legally holds 65% of the
equity interest of the Company. Nanguang is the sole legal owner of such 65%
equity interest and has the right to transfer such 65% equity interest lawfully. |
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Β | Β | Β | Yao Chongguo is a citizen of the United States who legally holds 35% of the equity
interest of the Company. Yao Chongguo is the sole legal owner of such 35% equity
interest and has the right to transfer such 35% equity interest lawfully. |
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Β | 5.1.2 | Β | No Defects. The Target Equity is free from any
Encumbrances; and there is no pending, or, to the knowledge of the Transferors,
threatened or potential disputes, claims, lawsuits, arbitrations, enforcement,
administrative proceedings or other legal proceedings relating to the Target
Equity in any aspect. |
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Β | 5.1.3 | Β | No Impediment. To the knowledge of the Transferors, there
is no such event that causes or may cause any delay, restriction or impediment
with respect to the performance of the obligations under this Agreement by the
Transferors. |
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Β | 5.1.4 | Β | Authority; Effectiveness. Nanguang owns all necessary power
and right to execute this Agreement and to perform its obligations hereunder.
Nanguangβs executing and performing this Agreement have gained all necessary
company authorization. Upon execution, this Agreement shall constitute a legal,
valid and binding obligation of each Transferor and enforceable against each
Transferor in accordance with its terms. |
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Β | 5.1.5 | Β | Organization and Standing of the Company. The Company is a
Sino-foreign equity joint venture duly organized, validly existing and
in good standing under the PRC Laws. The Company is duly qualified to conduct all
the businesses as described in the Business License under the PRC Laws. |
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Β | 5.1.6 | Β | No Conflict. The execution and delivery by the Transferors
of this Agreement, and the performance by the Transferors of their obligations
hereunder will not result in (1)Β violation of any applicable PRC Laws; (2)
violation of the Articles of Association or any other organization documents of
the Company; (3)Β breach of any contracts or documents to which any of the
Transferors is a party or is otherwise bound; (4)Β violation of any condition to
the grant and/or continuing and effective survival of any license or approval
issued to the Company; or (5)Β termination or cancellation of or imposing of
additional conditions on any license or approval issued to the Company. |
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Β | 5.1.7 | Β | Approvals and Licenses. The Company has obtained all
approvals (including but not limited to governmental approvals) and licenses that
are necessary or appropriate to conduct all the businesses it is currently engaged
in. Each such approval or license is valid, binding and in full force and effect,
and has passed all inspections such as the annual inspections requested by the
governmental authorities regarding such approval/license; there is no pending, or,
to the knowledge of the Transferors, potential administrative or other proceedings
which may terminate, rescind, revoke, dismiss, restrict or jeopardize any
aforementioned approval or license; the Company has never received any written or
oral notice from any government authority, notifying the Company that it has
violated any prescriptions under any such approval or license; and there is no
fine or penalty relating to any such approval or license or arising from any
violation of such approval or license. |
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Β | 5.1.8 | Β | Investments and Subsidiaries. The Company does not own any
equity interest in any other entity or organization or set up any branch, and
there is no such entrustment or contractual arrangement regarding any equity
interest of the Company. |
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Β | 5.1.9 | Β | Financial Information. The Transferors have made available
to the Transferee certain financial statements, reports and documents of the
Company (collectively, the βFinancial Reportsβ), which are listed in SectionΒ 5.1.9
of the Disclosure Schedule attached hereto as AppendixΒ I
(the βDisclosure Scheduleβ). Those Financial Reports contain all relevant and
material financial information regarding the Company. The Financial Reports are
true, accurate and complete in all respects as of the respective dates set forth
in such Financial Reports, and comply with generally accepted accounting
principles in PRC. The Company does not have any unrecorded fund or assets for
any purpose, and accumulation and/or use of all corporate fund are completely and
duly reflected in such Financial Reports. |
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Β | 5.1.10 | Β | No Undisclosed Liabilities. The liabilities reflected in the
liabilities statement (βLiabilities Statementβ) as stated in SectionΒ 5.1.10 of the
Disclosure Schedule contain the complete and accurate disclosure of all the
occurred and reasonably foreseeable loans, liabilities, debts and guarantees of
the Company as of the Execution Date, including without limitation any outstanding
loans borrowed by the Company from any Transferor and/or any third party, and
guarantees made by the Company for any Transferor or any third partyβs debt or for
the benefit of any Transferor or any third party; except for those disclosed in
the Liabilities Statement, there are not any other liabilities, actual or
contingent, against, relating to or affecting the Company or its respective assets
and properties, other than liabilities incurred in the ordinary course of business
and involving less than RMB50,000, individually, or less than RMB150,000,
collectively, for any individual liability, and the Company is not a guarantor,
indemnitor, surety or other obligor of any indebtedness of any Transferor or any
third party. |
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Β | 5.1.11 | Β | No Insolvency. No order has been made or petition presented or
resolution passed for the winding up of the Company, and no mortgage, execution or
summon has been levied against assets of the Company. The Company is not
insolvent or unable to pay its debts and there is no unfulfilled claim outstanding
against the Company for debts due. |
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Β | 5.1.12 | Β | Taxes and Fees. The Company has paid in full all the taxes and fees
that have been due in accordance with the requirements of the national and local
taxing authorities; there is no additional taxes or fees that need to be paid; and
there has never been any penalty imposed on the Company due to its breach of any
law, regulation and requirement in respect of the payment of taxes and fees. |
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Β | 5.1.13 | Β | Tangible Property. The Company is in possession of and has good title
to, or has valid leasehold interests in or valid rights under contract to use all
tangible personal property used in the conduct of its business, including all the
tangible personal property (βTangible Personal Propertyβ) reflected in the
Financial Reports. All Tangible Personal Property is free and clear of all
Encumbrances, and is in good working order and condition (ordinary wear and tear
excepted), and their use complies with all PRC Laws. |
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Β | 5.1.14 | Β | Real Estate Property. On the issuance date of the New Business License,
the Company does not own any title to any real estate property. From the
establishment date of the Company to the issuance date of the New Business
License, the only real estate properties the Company owns or expects to obtain are
the Longtan Land, the Longtan Facility and the Test Land. The Company will not
suffer any losses or damages due to (1)Β that the Companyβs occupation, use or
operation of the Longtan Land, the Longtan Facility or the Test Land prior to
issuance date of the New Business License, does not comply with any PRC Laws; (2)
any defect in the title of the Longtan Land, the Longtan Facility, the Test Land
or the Test Bunkers (defined as below); or (3)Β any legal defect in the project
filing and construction filing procedures during the construction of the Longtan
Facility or the Test Bunkers, no matter whether such losses or damages occur prior
to or after the issuance date of the New Business License. |
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Β | 5.1.15 | Β | Intellectual Property Rights. The Company holds all the valid rights,
title and interest in the Intellectual Property Rights held by it or necessary for
it to conduct its business as currently conducted or in connection with the
conduct of its business and/or production of all its current products (the
βCompany IPRsβ), free and clear of any Encumbrances. The Company has not
permitted or granted license to any Transferor or third party to use any Company
IPRs. The Company has not and does not infringe any Intellectual Property Rights
of others and none of the Company IPRs has constituted an infringement of any
Intellectual Property Rights owned by others, nor has the Company received any
claims, correspondence or notices indicating that the Company or its
representatives, management or staff has infringed any Intellectual Property
Rights owned by any other party. To the knowledge of |
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Β | Β | Β | the Transferors, there is
not any factual or legal basis that is likely to result in such infringement. Particularly, none of the
Company IPRs has constituted or will constitute an infringement of any
Intellectual Property Rights owned by any previous employers of any of the
Transferors or any of the Affiliates of such employers worldwide, or in any
aspect has violated or will violate any agreements, verbal or written, between any
of the Transferors and any of their previous employers or any of the Affiliates
of such employers, and the Transferors guarantee that there is no factual or legal
basis that is likely to result in such infringement or violation, provided however
that the Transferors shall not be liable for any Intellectual Property Rights
which are developed by the Company after the issuance date of the New Business
License and are not developed based on any of the Company IPRs existing prior to
the issuance date of the New Business License. The Transferors further warrant
that none of any improvement made after the issuance date of the New Business
License to the Company IPRs existing prior to the issuance date of the New
Business License, due to such Company IPRs existing prior to the issuance date of
the New Business License, (1)Β has constituted or will constitute an infringement
of any Intellectual Property Rights owned by any previous employers of any of the
Transferors or any of the Affiliates of such employers worldwide, or (2)Β has
violated or will violate any agreements, verbal or written, between any of the
Transferors and any of their previous employers or any of the Affiliates of such
employers, and the Transferors guarantee that there is no factual or legal basis
that is likely to result in such infringement or violation. |
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Β | 5.1.16 | Β | Material Contracts. SectionΒ 5.1.16 of the Disclosure Schedule sets
forth an accurate, correct and complete list of all of (1)Β the material business,
assets and financing contracts in connection with the operation and business of
the Company, and (2)Β the contracts executed by the Company which are related to
the LUR regarding the Test Land and the Longtan Land (collectively, βMaterial
Contractsβ), which are provided by the Transferors and the Company upon the
request of the Transferee. Each Material Contract is valid, effective, binding
and enforceable on each of the parties thereto and neither the Company nor any
other party to the Material Contacts is in default in performance thereof. No
liabilities shall occur to the Company in the future due to any of its
non-performance or violation of any |
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Β | Β | Β | of the Material Contract prior to the issuance date of the New Business License; and no provisions under
any such Material Contract impose any restrictions on the Companyβs ability of and
or in any aspect refrain the Company from entering into any purchase or sales
agreements with any third parties under any terms and conditions desired by the
Company, and no liabilities shall occur to the Company in the future due to any
favorable treatment commitments offered to any purchasers or suppliers by the
Company under any such Material Contract regardless of what terms and conditions
the Company would offer to its purchasers or suppliers in the future. |
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Β | 5.1.17 | Β | Warranties. The services provided by the Company or the products
produced by the Company prior to the issuance date of the New Business License
comply with all the contractual obligations and all express and implied warranties
and there is no and there will not have any indemnity obligations of the Company
that are relevant to the aforementioned services or products. |
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Β | 5.1.18 | Β | Employment Matters. SectionΒ 5.1.18 of the Disclosure Schedule sets
forth an accurate, correct and complete list of all employees of the Company as of
the Execution Date of this Agreement. The Company has duly executed written labor
contracts with all its employees, and has signed confidentiality agreements
(including non-competition provisions) with all its employees who have access to
any Company IPRs; the Company has complied with all legal requirements related to
the employment or engagement of its employees, including but not limited to legal
requirements related to labor contracts, wages, working hours, health and safety,
social welfare and employment of expatriate employees. There is no pending
dispute, controversy or proceeding against or affecting the Company, which is
pertaining to any employee of the Company, and to the knowledge of the
Transferors, no dispute, controversy or proceeding threatened by or relating to
any Employee. To the knowledge of the Transferors, no employee intends to
terminate his or her employment or other engagement with the Company. The Company
will not suffer any losses or damages due to any activity or fact prior to
issuance date of New Business License that does not comply with any labor related
PRC Laws, no matter whether such losses or damages occur prior to or after the
issuance date of the New Business License. |
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Β | 5.1.19 | Β | Legal and Administrative Proceedings. There is no proceeding pending
or, to the knowledge of the Transferors, threatened, against or affecting the
Company or its properties, rights, licenses, operations or businesses. No event
has occurred, and no condition or circumstance exists, that might directly or
indirectly give rise to or serve as a basis for the commencement of any such
proceeding. The Company has fully complied, and is in full compliance, with all
legal requirements that are applicable to the business operation and assets
management. No event has occurred, and no condition or circumstance exists, that
would reasonably be expected to constitute, or result directly or indirectly in, a
default under, a breach or violation of, or a failure to comply with, any such
legal requirement. The Company has not received any notice from any person
(including any governmental administrative authority) that the Company is in
violation of any legal requirement. |
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Β | 5.1.20 | Β | Construction of Longtan Facility. Building and constructing the Longtan
Facility have been approved by the Longtan Commission. The Company will not
suffer any losses or damages due to (1)Β that the Companyβs occupation, use or
operation of the Longtan Facility prior to issuance date of the New Business
License does not comply with any PRC Laws; (2)Β any defect in the title of the
Longtan Facility or the Longtan Land; or (3)Β any legal defect in project filing
and construction filing procedures during the construction of the Longtan
Facility, no matter whether such losses or damages occur prior to or after the
issuance date of the New Business License. |
Β | |||
Β | 5.1.21 | Β | Transfer of Longtan Project. The transfer and assignment of the Longtan
Project from the Company to Nanguang are conducted in compliance with PRC Laws and
will become effective by or upon the Initial Closing Date. On the Initial Closing
Date, the Company does not have any right, title, interest, obligation, liability
and/or responsibility on the Longtan Project, except for the Lease Agreement to be
executed by the Company and Nanguang as defined in SectionΒ 7.1.9 hereof. Once
the construction of the Longtan Facility is complete, Nanguang shall obtain the
complete and clean title to the Longtan Facility and the LUR to the Longtan Land. |
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Β | 5.1.22 | Β | Environmental Matters. The Company is not in violation of any PRC Laws
regarding environmental protection (the βEnvironmental Lawsβ), does not own or
lease or operate on any real property contaminated with any substance that is
subject to any Environmental Laws, and is not liable for any off-site disposal or
contamination pursuant to any Environmental Laws; the Company is not subject to
any claim relating to any Environmental Laws, and there is no pending or, to the
knowledge of the Transferors, threatened investigation that might lead to such a
claim; the Company has acquired all the approvals, permits, certificates and
license, as required under the PRC Laws regarding the environmental protection
issues, for the construction of the Longtan Facility at the current stage. |
Β | |||
Β | 5.1.23 | Β | Affiliated Transactions. SectionΒ 5.1.23 of the Disclosure Schedule sets
forth a true, accurate and complete list of affiliated transactions of the
Company. All affiliated transactions of the Company have been conducted in
compliance with PRC Laws. |
Β | |||
Β | 5.1.24 | Β | Compliance with Laws. The Company is not in violation of any PRC Laws,
including, without limitation, any law relating to the operation of the Company,
or the taxation of the company or its employees. |
5.2 | Β | The Transferee hereby represents and warrants to the Transferors on the Execution
Date of this Agreement and Initial Closing Date as follows: |
Β | 5.2.1 | Β | Organizations and Credit Standing. The Transferee is an
entity duly organized, validly existing and in good standing under the laws of the
jurisdiction where it is incorporated. The Transferee is duly qualified to
conduct its businesses pursuant to the laws of the jurisdiction where it obtains
its operation qualification. |
Β | |||
Β | 5.2.2 | Β | Authority; Effectiveness. The Transferee owns all necessary
power and right to execute this Agreement and to perform its obligations
hereunder. The Transfereeβs executing and performing this Agreement have gained
all necessary company authorization. Upon execution, this Agreement shall
constitute a legal, valid and binding obligation of the Transferee and enforceable
against it in accordance with its terms. |
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Β | 5.2.3 | Β | No conflict. The execution and delivery by the Transferee of
this
Agreement, and the performance by the Transferee of its obligations hereunder will
not result in (1)Β violation of any organization documents of the Transferee; (2)
breach of any applicable laws of the jurisdiction where the Transferee is
registered; or (3)Β breach of any contracts or documents to which the Transferee is
a party or is otherwise bound. |
Β | |||
Β | 5.2.4 | Β | Operation of Twin Peak. The Transferee warrants that between the
issuance date of the New Business License and the Third Closing Date, unless otherwise
set forth in this Agreement, it will cause the Company to be operated in the normal
course of business, and it will not arbitrarily or unduly restrain the operations of
the Company. For such purpose, the Transferee shall provide to the Company sufficient
capital to ensure the normal operation of the Company, and shall provide to the Company
the parts and raw materials required for the production of the accelerator tubes in
compliance with the components and specifications identified in the Procurement
Specification β Twin Peak Linac 102085 provided by the Transferee (the βProcurement
Specificationβ) (hereinafter the βSF6 Linacβ). The Transferee specifically warrants
that, it shall not take any action that would reasonably be expected to cause any of
the conditions to the payment of the Second Installment set forth in SectionΒ 7.3 or any
conditions to the payment of the Third Installment set forth in SectionΒ 7.4 not to be
satisfied. In addition, until the Third Closing Date the Transferee will not
manufacture the SF6 Linacs in a facility other than the Longtan Facility, unless actual
or anticipated interruptions or obstructions impede its ability to efficiently and
effectively manufacture the SF6 Linacs in a cost-effective manner at the Longtan
Facility. Such interruptions or obstructions could include unavailability of or
substantial damage to the Longtan Facility, prolonged labor strike, unavailability
and/or loss of key employees of the Company at the Longtan Facility, failure of the
Transferors to provide technical training as required herein, infringement of the
Companyβs IPRs or the Intellectual Property Rights of others, prolonged suspension of
the operation of the Company at the Longtan Facility due to reasons not attributable to
the Company. However, notwithstanding the foregoing and anything to the contrary in
this Agreement, after the Second Closing Date, if the Transferee, in its sole
discretion, determines that the Longtan Facility is not appropriate for the Company to
manufacture the SF6 Linacs, the Transferee shall be entitled to cause
the Company to move from the Longtan Facility and manufacture the SF6 Linacs at
any other place. |
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5.3 | Β | Continuance of Representations and Warranties. Any provision regarding
representations and warranties prescribed or presented hereunder shall continue to be
effective after the execution of this Agreement and the completion of the transfer of the
Target Equity contemplated hereunder. |
ArticleΒ 6 Covenants of the Transferors
6.1 | Β | Covenants through the issuance date of the Business License. The Transferors
jointly and respectively covenants to the Transferee from the Execution Date of this
Agreement to the issuance date of the Business License as follows: |
Β | 6.1.1 | Β | Unless otherwise expressly contemplated in this Agreement or as
agreed to by the Transferee in writing, the Transferors shall cause the Company
to: (1)Β operate the business in the ordinary course consistent with past practice
and prudent business practice, including but not limited to, continue the
manufacturing of Linac with components and specifications identified in the
Procurement Specifications which may be amended from time to time by the
Transferee in writing; (2)Β have sufficient working capital to maintain its
operations; (3)Β preserve, for the benefit of the Company, all of the assets,
except for the transfer of the Longtan Project to Nanguang pursuant to the terms
hereof; and (4)Β keep all relationships with suppliers, customers, employees and
other persons relating to the business unless as otherwise instructed by the
Transferee in writing. |
Β | |||
Β | 6.1.2 | Β | Without limiting the foregoing, without obtaining the Transfereeβs
prior written consent, the Transferors shall cause the Company not to: |
Β | 6.1.2.1 | Β | take any action that would reasonably be expected to cause any of
the conditions to the Initial Closing set forth in SectionΒ 7.1 not to
be satisfied as of the Initial Closing Date; |
Β | |||
Β | 6.1.2.2 | Β | commit any act or omit to do any act which could have an adverse
effect on its operation and/or assets value; |
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Β | 6.1.2.3 | Β | sell, transfer, pledge or otherwise dispose of any legal or
beneficial interest in any of the Companyβs assets (including both
tangible and intangible assets), business or earnings, or impose or
permit to impose any other Encumbrances on the assets, except for the
transfer of the Longtan Project to Nanguang pursuant to the terms
hereof; |
Β | |||
Β | 6.1.2.4 | Β | merge with any other party, acquire assets from any other party or
invest in any other party; |
Β | |||
Β | 6.1.2.5 | Β | make, incur or otherwise become responsible for any liabilities,
except for (1)Β liabilities arising in the ordinary course of business
excluding liabilities arising from advancing of loans and contingent
liabilities arising from the provision of any guarantee to any third
party and/or any Transferor by the Company; and (2)Β liabilities
disclosed to and consented in writing by the Transferee; |
Β | |||
Β | 6.1.2.6 | Β | enter into any material contract (for the purpose of this Section, a
contract with a value exceeding RMB 100,000 or relating to any Company
IPRs shall be regarded as a material contract); |
Β | |||
Β | 6.1.2.7 | Β | hire or dismiss any employee in the Company, increase the
compensation of any employee, establish or adopt any new benefit plan,
or grant any bonuses, benefits or other direct or indirect compensation
to any employee; or |
Β | |||
Β | 6.1.2.8 | Β | pay dividends in any form to any shareholder of the Company. |
6.2 | Β | Further Covenants. The Transferors agree to take such action and to execute
such documents and instruments as may be necessary to carry out any of the provisions of
this Agreement including without limitation, fulfillment of the conditions to all the
closings contemplated hereunder. The Transferors agree to cause the Company to take such
action and to execute such documents and instruments as may be necessary to carry out any
of the provisions of this Agreement including without limitation, fulfillment of the
conditions to the Initial Closing. |
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6.3 | Β | Rights of Inquiry and Information. Before the issuance date of the Business
License, the Transferors shall cause the Company to provide the Transferee (and its legal and
financial advisors) with access to its lenders, financial advisors, accountants and other
advisors, and shall assist the Transferee in obtaining any information in connection with any
aspect of the finance, operation and/or business of the Company as reasonably requested. The
Transferors shall promptly inform the Transferee with any existing or threatened litigation,
arbitration or administrative proceedings in connection with the Target Equity or the
Companyβs assets, business and/or earnings. No access provided to, or review undertaken by
the Transferee hereunder shall, however, affect or limit in any respect the representations
and warranties of the Transferors set forth herein or provided hereunder. |
Β | ||
6.4 | Β | Approvals; Assistance. The Transferors shall make his/its best efforts to
obtain and/or cause the Company to obtain such approvals as may be necessary or
appropriate to consummate the transactions contemplated hereby within the shortest time as
practicable. The Transferors agree to promptly notify the Transferee of any written or
oral communication which the Company may receive from a governmental authority relating to
any such approval, registration and/or filing, and, in case of any such written
communication, to promptly provide the Transferee with the written communication. |
Β | ||
6.5 | Β | Public Announcement. Unless otherwise required by applicable law or
applicable stock exchange listing rules, no press release or other public announcement or
filing pertaining to the transactions contemplated by this Agreement will be made by or on
behalf of any Party without the prior written approval of all the other Parties. The
Transferors shall cause the Company not to make any press release or other public
announcement or filing pertaining to the transactions prior to the issuance date of the
Business License. Notwithstanding the forgoing, the Transferee may, at its sole
discretion, make any filing with U.S. Securities and Exchange Commission and issue any
press release pertaining to the transaction contemplated by this Agreement after the
Execution Date as required by applicable law or applicable stock exchange listing rules. |
Β | ||
6.6 | Β | No negotiation allowed. Other than discussions regarding the transactions
contemplated hereunder, the Transferors may not directly or indirectly, through any
affiliate, advisor, representative, officer, director, agent or otherwise, make, solicit,
initiate or encourage submission of any proposal or offer from any person (including any
of its officers or employees) relating to any merger,
consolidation, acquisition, or purchase of any material asset of, or any equity interest in
the Company (the βTransaction Proposalβ). In addition, they shall terminate or cause any
other person to terminate any contract or negotiation in process in connection with the
Transaction Proposal. |
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6.7 | Β | Discussion with the Transferee. Through the issuance date of the Business
License, the Transferors shall, and shall cause the Company to inform the Transferee of
the following in a timely manner, and shall discuss with the Transferee on a regular and
ongoing basis: (1)Β any material developments or decisions with respect to the management
of the business and assets of the Company, including, without limitation, any significant
new agreements or transactions proposed to be entered into, any persons proposed to be
employed or terminated, and any other important developments relating to the business of
the Company; and (2)Β the status with respect to obtaining all requisite approvals as may
be necessary in order for the Parties to consummate the transactions contemplated
hereunder. |
Β | ||
6.8 | Β | Non Competition. Each Transferor covenants to the Transferee that, the
Transferor himself/itself, any his/its existing or prospective Affiliate and employees
(each, a βNon-Competition Personβ) shall not separately or along with any other party
engage in the same or similar business with the Company and/or the Transferee, and, in
case that the Transferee elects the option set forth in SectionΒ 7.6.2 hereof, shall not
separately or along with any other party engage in the SF6 Linacs business, for a period
ending upon the third (3rd) anniversary of the Initial Closing Date, including
but not limited to: (1)Β directly or indirectly design, produce, promote, sell, distribute
or provide services for any product or similar product developed or manufactured by the
Company and/or the Transferee and/or the SF6 Linacs (as the case may be); (2)Β assist or
permit in any form the acts of any other party that is competing with the business of the
Company and/or the Transferee and/or the SF6 Linacs business (as the case may be); or (3)
intervene in any form with the relationship between the Company and/or the Transferee,
and/or such other entity regarding the manufacturing of the SF6 Linacs (as the case may
be) and its clients, customers or suppliers, or solicit in any form any employee of the
Company and/or the Transferee, and/or such other entity regarding the manufacturing of
the SF6 Linacs (as the case may be). The provisions under this SectionΒ 6.8 shall continue
to be effective after the Initial Closing Date. |
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6.9 | Β | Confidentiality. Each Party shall, and shall cause its agents, employees and
representatives (the βRepresentativesβ) to strictly maintain the confidentiality of the
Confidential Information of any other Party, and without obtaining the written consent of the
other Parties, it shall not disclose any such Confidential Information. Confidential
Information refers to the provisions of this Agreement and the appendixes to this Agreement,
any information regarding the business, future planning, financial conditions, future
projections, clients, and/or intellectual property, etc. of a Party as disclosed by such
Party or its Representative. Confidential Information particularly includes the existence of
this Agreement and other various agreements specified hereunder, the contents thereof, the
transaction contemplated hereunder and the negotiations among the Parties. Confidential
Information shall not include the following information: (1)Β information in the public domain
(provided that this is not the result of the undue acts of the receiving Party); (2)
information acquired by the receiving Party through an appropriate way from a third party;
and (3)Β the information independently developed by the receiving Party, as can be
demonstrated by documentation in existence prior to the date of this Agreement. However, any
Party may disclose the transaction contemplated herein to its legal or financial advisors, or
pursuant to any applicable law or stock exchange listing rules. |
Β | ||
6.10 | Β | Transfer of Longtan Project. The Transferors covenant to cause the Company
to transfer the Longtan Project to Nanguang in exchange for RMB1,658,000. The Transferors
covenant to take such action and to execute such documents and instruments and cause the
Company to take such action and to execute such documents and instruments as may be
necessary to effect the transfer and assignment of the Longtan Project from the Company to
Nanguang to the satisfaction of the Transferee, including without limitation: (1)
execution of any agreements among the Company, Nanguang and the Longtan Commission
regarding transfer and assignment by the Company to Nanguang of the LUR to the Longtan
Land and the entrusted construction contract under the Longtan Project (and based on the
transfer of the aforementioned contracts, the competent PRC governmental authorities shall
change the registered transferee of the LUR to the Longtan Land and the registered
property owner regarding the project planning and project construction to Nanguang); (2)
execution of agreements among the Company, Nanguang and any third party that is the party
to any outstanding contracts or agreements related to the Longtan Project as requested by
the Transferee in writing; (3)Β issuance of an undertaking letter by Nanguang to the
Company regarding Nanguangβs assumption of any and all obligations, liabilities and
responsibilities in connection with or arising from the Longtan Project. Nanguang further
covenants to pay the transfer price of the
Longtan Project equal to RMB1,658,000 to the Company immediately upon Nanguangβs receipt of
the First Installment. |
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6.11 | Β | Test Land and Construction of Test Bunkers. The Transferors covenant to
cause the certain land use right transfer agreement between the Company and the Longtan
Commission dated AugustΒ 1, 2006 regarding the Test Land to be transferred from the Company
to Nanguang. Nanguang covenants to obtain any required approvals, permits, license and
certificates to build and construct test bunkers (βTest Bunkersβ) on the Test Land up to
1000 square meters and commence the construction of the Test Bunkers as soon as possible.
Nanguang covenants to lease the Test Bunkers to the Company no later than December, 2008.
The purchase price for the LUR to the Test Land (the βTest Land Priceβ) shall be financed
to Nanguang through certain loan arrangement without charging interest to Nanguang and the
costs for the construction of the Test Bunkers (the βTest Bunkers Construction Costsβ)
shall be arranged through down payment of rent for the Test Bunkers to Nanguang, which
loan arrangement and rent arrangement will be carried out by the Transferee, subject that
such Test Land Price and Test Bunkers Construction Costs shall have been confirmed by the
Transferee in advance. Nanguang guarantees that it shall repay the loan equal to the Test
Land Price immediately upon Nanguangβs receipt of the Actually Paid Second Installment of
the Purchase Price. The down payment of rent equal to the Test Bunkers Construction Costs
shall be used as the rent for the Companyβs use of the Test Bunkers for seven (7)Β years. |
Β | ||
6.12 | Β | Use of Longtan Facility and Test Bunkers by the Company. The Transferors
covenant to ensure the Companyβs use of the Longtan Facility and the Test Bunkers pursuant
to the Lease Agreement described in SectionΒ 7.1.9 hereof, and covenant that Nanguang shall
possess all necessary authority to lease the Longtan Facility and Test Bunkers to the
Company during the term of the Lease Agreement and any extension thereto in compliance
with all PRC Laws. The Transferors guarantees that the Companyβs use of the Longtan
Facility and the Test Bunkers will not encounter any interruptions or obstructions due to
(1)Β that the Companyβs occupation, use or operation of the Longtan Land, the Longtan
Facility or the Test Land prior to issuance date of the New Business License, does not
comply with any PRC Laws; (2)Β any defect in the title of the Longtan Land, the Longtan
Facility, the Test Land or the Test Bunkers; or (3)Β any legal defect in project filing and
construction project procedures during the construction of the Longtan Facility or the
Test Bunkers, nor will the Company suffer any losses or damages caused thereby. The
Transferors further covenant
that Nanguang shall fully comply with all terms and conditions set forth under the Lease
Agreement. |
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6.13 | Β | Title Certificates. Nanguang covenants to obtain any and all governmental
approvals, licenses, registrations and filings, and pay all considerations, taxes and
other fees, to legally own the Longtan Facility and the LURs to the Longtan Land and the
Test Land. |
Β | ||
6.14 | Β | Technology Training. The Transferors covenant that immediately upon the
execution of this Agreement, Yao Chongguo shall commence to educate and train relevant
employees of the Company, which shall be at least two (2)Β Company employees, in order that
all Company IPRs can be fully grasped and utilized by such employees. Immediately after
the Initial Closing, Yao Chongguo shall train such other persons designated by Transferee
in order that such IPRs can be fully grasped and utilized by such persons, that is such
persons can independently manufacture accelerator tubes and proficiently identify errors
and problems with accelerator tubes in compliance with requirements set forth in the
design drawings for the SF6 Linacs. |
Β | ||
6.15 | Β | Continuous Employment. The Transferors covenant that Yao Chongguo shall
continuously work for the Company for the entire three (3)Β year term of the employment
contract described in SectionΒ 7.1.10 hereof; Yao Chongguo and Xxx Xxxxxx shall comply with
all the provisions specified under the agreements to be entered into with the Company
pursuant to SectionΒ 7.1.10 and 7.1.11. Notwithstanding any provision hereunder to the
contrary, the Parties agree that Yao Chongguo shall have the right to transfer, at any
time, to any person that is not an Affiliate of Yao Chongguo the title to the intellectual
property rights to the Prior Works (defined as in the confidentiality, invention
assignment and non-competition agreement to be executed by Yao Chongguo and the Company)
disclosed in such confidentiality, invention assignment and non-competition agreement; the
Parties further agree that the patent application(s) submitted by Yao Chongguo or Mianyang
High & New District Twin-Peak Technology Development Co., Ltd. (the βMianyang Companyβ)
prior to the Initial Closing Date related to a PRC patent obtained by Mianyang Company
numbered ZL 2004 1 0021763.0 shall belong to Yao Chongguo or Mianyang Company, no matter
whether Yao Chongguo is the employee of the Company at the time that Yao Chongguo or
Mianyang Company actually obtains such patent(s). |
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ArticleΒ 7 Conditions Precedent to the Closings
7.1 | Β | Preconditions to the obligation of the Transferee at the Initial Closing.
The obligation of the Transferee to pay the First Installment of the Purchase Price at the
Initial Closing is subject to the fulfillment of each of the following conditions (any of
which except for those specified in SectionsΒ 7.1.6 and 7.1.7 may be waived by the
Transferee in writing): |
Β | 7.1.1 | Β | The accuracy of the representations and warranties. The
representations and warranties made by the Transferors hereunder shall be true and
correct as of the date on which they were made (unless they speak as of a
specific, earlier date, in which case they shall be so true and correct as of such
date) and as of the Initial Closing Date. |
Β | |||
Β | 7.1.2 | Β | Performance of obligations. The Transferors shall have
performed or complied with their covenants and agreements contained in this
Agreement required to be performed or complied with on or prior to the Initial
Closing Date. |
Β | |||
Β | 7.1.3 | Β | No legal proceedings. In the reasonable opinion of the
Transferee, no legal, regulatory, or governmental proceeding shall be pending or
threatened by any person which creates a reasonable possibility that the
completion of the transaction at the Initial Closing will be enjoined, restrained
or otherwise prevented in whole or material part or that otherwise challenges or
seeks damages or other relief in connection with the transaction or that may have
the effect of imposing limitations or conditions or otherwise interfering with the
transactions. |
Β | |||
Β | 7.1.4 | Β | No legal restrictions. No law shall be in effect which
prohibits or restricts the consummation of the transaction hereunder, or which
otherwise adversely affects the right or ability of the Company to own, operate or
control the principal business or assets, in whole or material part. |
Β | |||
Β | 7.1.5 | Β | Due diligence. The Transferee shall have completed and be
satisfied with the results of all business, legal and financial due diligence on
the Company and the Target Equity, and any items requiring correction identified
by the Transferee shall have been corrected to Transfereeβs satisfaction. |
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Β | 7.1.6 | Β | Governmental Approvals. The Transfereeβs receipt of
satisfactory evidence that approval from the Approving Authority for this
Agreement and the transaction hereunder has been obtained. |
Β | |||
Β | 7.1.7 | Β | Articles of Association. The new Articles of Association of
the Company has been formulated by the Company, and has been approved by the
Approving Authority. |
Β | |||
Β | 7.1.8 | Β | Transfer of Longtan Project. All relevant parties have
taken necessary actions and executed necessary documents and instruments for the
purpose of transfer of the Longtan Project in accordance with SectionΒ 6.10 hereof. |
Β | |||
Β | 7.1.9 | Β | Lease of the Longtan Facility and Test Bunkers. A lease
agreement to the satisfaction of the Transferee (the βLease Agreementβ) shall have
been executed by and between the Company and Nanguang, which shall entitle the
Company to lawfully lease part of the Longtan Facility sufficient for the
operation of the Company at a monthly rent of RMB12 per square meter for the
first two years during the term of the Lease Agreement, and thereafter the rent
shall be further determined by Nanguang and the Company through consultations
based on the market price. Any changes to the rent shall be determined at least
three (3)Β months prior to the new rent amount effective date. The Lease Agreement
shall also entitle the Company to lawfully use the Test Bunkers once the
construction thereof is completed. As Nanguang receives a down payment of rent
equal to the Test Bunkers Construction Costs, such down payment of rent will be
regarded as the rent for the Companyβs use of the Test Bunkers for the first seven
(7)Β years and the Company does not need to pay any additional rent for the Test
Bunkers within such period. Thereafter, the rent for the Test Bunkers shall be
further determined by Nanguang and the Company through consultations based on the
market price at the time being. |
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Β | 7.1.10 | Β | Employment Contract with Yao Chongguo. Yao Chongguo shall have executed
with the Company a three (3)Β year employment contract and a confidentiality,
invention assignment and non-competition agreement to the satisfaction of the
Transferee. The confidentiality, invention assignment and non-competition
agreement shall provide that Yao Chongguo shall undertake two (2)Β years of
non-competition
obligations. The Company shall have completed all procedures required by PRC Laws
on employment of expatriate employees. Xx.Β Xxx shall also have provided such
evidence as Transferee deems reasonably sufficient to establish that he has all
necessary and desirable permits, visas, and other approvals required to permit him
to work for the Company during the term of his employment agreement. |
Β | |||
Β | 7.1.11 | Β | Board Member Service Agreement with Xxx Xxxxxx. Xxx Xxxxxx shall have
executed with the Company a one (1)Β year board member service agreement and a
confidentiality, invention assignment and non-competition agreement providing for
one (1)Β yearβ post-service non-competition obligations to the satisfaction of the
Transferee. |
Β | |||
Β | 7.1.12 | Β | Employees. Each of the key employees of the Company as determined by
the Transferee shall have executed with the Company a confidentiality, invention
assignment and non-competition agreement to the satisfaction of the Transferee.
The Company shall have paid all required taxes, social benefit contributions, and
other fees and costs associated with conducting its business. |
Β | |||
Β | 7.1.13 | Β | Technology Training. Yao Chongguo shall have commenced to educate and
train relevant employees of the Company, which shall be at least two (2)Β Company
employees on process of tuning the XX0 Xxxxx. The Transferors allow to a
representative from the Transferee to observe the tuning process for SF6 Linac
prototype number (βP6β) and to document each tuning step. . |
Β | |||
Β | 7.1.14 | Β | Compliance Certificate. The Transferee shall have received a
certificate executed and delivered by each of the Transferors in the form attached
as AppendixΒ II-A. |
Β | |||
Β | 7.1.15 | Β | Board Approval. This Agreement shall have been approved by the Board of
Directors of the Transferee. |
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7.2 | Β | Satisfaction of the initial production requirements. Following the Initial Closing,
the precondition to proceeding with the Second Closing and the Third Closing is that by
the end of 31st JanuaryΒ 2009, the Company shall have delivered to the
Transferee the first Linac product meeting the requirements set forth in the Procurement
Specification; the supplier audit conducted by the Transferee shall be
completed to the satisfaction of the Transferee; and all corresponding manufacturing
processes and procedures of the Linac production by the Company shall have been in place
pursuant to the requirements further described in AppendixΒ III (all the above production
requirements shall be collectively referred to as βInitial Production Requirementsβ). The
Transferee shall have received a certificate executed and delivered by each of the
Transferors in the form attached as AppendixΒ II-B. As soon as the Initial Production
Requirements are met, the Company will immediately continue efforts to meet the production
milestones set for the Second Closing and the Third Closing. |
Β | ||
7.3 | Β | Preconditions to the obligation of the Transferee at the Second Closing. The
obligation of the Transferee to pay the Actually Paid Second Installment of the Purchase
Price at the Second Closing is subject to the fulfillment of each of the following
conditions (any of which may be waived by the Transferee in writing) no later than
31st JulyΒ 2009: |
Β | 7.3.1 | Β | Initial Closing. The Initial Closing shall have taken
place. |
Β | |||
Β | 7.3.2 | Β | Initial Production Requirements. The Initial Production
Requirements shall have been met by the end of 31st JanuaryΒ 2009, and
each Transferor shall have executed and delivered the certificate in the form as
attached as AppendixΒ II-B. |
Β | |||
Β | 7.3.3 | Β | Production. The Company shall have produced at least [ * ]
SF6 Linacs that meet the requirements set forth in the Procurement Specification
per month for [ * ] consecutive months after the first SF6 Linacs has passed the
inspection. |
Β | |||
Β | 7.3.4 | Β | The accuracy of the representations and warranties. The
representations and warranties made by the Transferors hereunder shall be true and
correct, and no violations of such representations and warranties by the
Transferors shall have been found as of the Second Closing Date. |
Β | |||
Β | 7.3.5 | Β | Performance of obligations and compliance of covenants. The
Transferors shall have performed or complied with their covenants and agreements
contained in this Agreement required to be performed or complied with on or prior
to the Second Closing Date. |
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Β | 7.3.6 | Β | Transfer of Longtan Project. Nanguang shall have fully paid
to the Company the transfer price of the Longtan Project equal to RMB1,658,000. |
Β | |||
Β | 7.3.7 | Β | Compliance Certificate. The Transferee shall have received
a certificate executed and delivered by each of the Transferors in the form
attached as AppendixΒ II-C. |
Β | |||
Β | 7.3.8 | Β | Governmental Approvals. The Transfereeβs receipt of
satisfactory evidence that all required approvals, consents and filings for this
Agreement and the transaction hereunder have been obtained from the relevant PRC
government authorities, except for those governmental approvals, consents and
filings which are not obtained due to the reason of the Transferee. |
7.4 | Β | Preconditions to the obligation of the Transferee at the Third Closing. The
obligation of the Transferee to pay the Third Installment of the Purchase Price at the
Third Closing is subject to the fulfillment of each of the following conditions (any of
which may be waived by the Transferee in writing) no later than 31st JulyΒ 2010: |
Β | 7.4.1 | Β | Initial Closing and Second Closing. The Initial Closing and
the Second Closing shall have taken place. |
Β | |||
Β | 7.4.2 | Β | Production. The first [ * ] Linacs produced by the Company
after the completion of the supplier audit conducted by the Transferee shall have
achieved an average life of [ * ] hours in the field. |
Β | |||
Β | 7.4.3 | Β | The accuracy of the representations and warranties. The
representations and warranties made by the Transferors hereunder shall be true and
correct, and no violations of such representations and warranties by the
Transferors shall have been found as of the Third Closing Date. |
Β | |||
Β | 7.4.4 | Β | Performance of obligations and compliance of covenants. The
Transferors shall have performed or complied with their covenants and agreements
contained in this Agreement required to be performed or complied with on or prior
to the Third Closing Date. |
Β
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Β | 7.4.5 | Β | Compliance Certificate. The Transferee shall have received
a certificate executed and delivered by each of the Transferors in the form
attached as AppendixΒ II-D. |
7.5 | Β | Preconditions to the obligations of the Transferors. The obligations of the
Transferors to take the actions required to be taken by them at the Initial Closing are
subject to the fulfillment of each of the following conditions (any of which except for
those specified in SectionsΒ 7.5.3 and 7.5.4 may be waived by the Transferors in writing): |
Β | 7.5.1 | Β | Accuracy of the representations and warranties. The
representations and warranties made by the Transferee hereunder shall be true and
correct as of the date on which they were made (unless they speak as of a
specific, earlier date, in which case they shall be so true and correct as of such
date) and as of the Initial Closing Date. |
Β | |||
Β | 7.5.2 | Β | Performance of obligations. The Transferee shall have
performed or complied with its covenants and agreements contained in this
Agreement required to be performed or complied with on or prior to the Initial
Closing Date. |
Β | |||
Β | 7.5.3 | Β | Governmental Approvals. Approval from the Approving
Authority for this Agreement and the transaction hereunder has been obtained. |
Β | |||
Β | 7.5.4 | Β | Articles of Association. The new Articles of Association of
the Company has been formulated by the Company and has been approved by the
Approving Authority. The new Articles of Association of the Company shall delete
βspecial vacuum equipment and special electronic equipmentβ from the Companyβs
business scope. |
7.6 | Β | Failure of meeting the Initial Production Requirements. If the Initial
Production Requirements set forth under SectionΒ 7.2 are not met by 31st
January, 2009, notwithstanding any other provision set forth herein, the Transferee shall
be entitled to choose either of the following options and shall notify the Transferors of
such option in writing: |
Β | 7.6.1 | Β | Ceasing all further development efforts in connection with the Linac
product, and closing the facility and/or operations of the Company, under which
circumstances the Transferee shall not utilize any
intellectual property rights and know-how of the Company to manufacture the SF6
Linacs on its own or through any other entity in any other location; or |
Β
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Β | 7.6.2 | Β | Closing the facility and/or operations of the Company, and
manufacturing the SF6 Linacs on its own or through any other entity in any other
location in the sole discretion of the Transferee by utilizing any intellectual
property rights and/or know-how of the Company without any restriction, under
which circumstances the Transferee shall pay RMB [ * ] (the βAdditional Purchase
Priceβ) to the Transferors within 15Β days after the receipt of the written notices
by the Transferors pro rata between Nanguang and Yao Chongguo as additional
purchase price for the transfer of the Target Equity; |
Β | |||
Β | 7.6.3 | Β | In either of the options set forth in SectionΒ 7.6.1 or SectionΒ 7.6.2
above: i) the Transferee shall have no obligation to make any additional payment
under the Purchase Price to any of the Transferors; ii) Nanguang shall agree to
the early termination of the Lease Agreement set forth under SectionΒ 7.1.9 at the
request of the Transferee at any time; and iii) Yao Chongguoβs employment contract
and confidentiality, invention assignment and non-competition agreement mentioned
in SectionΒ 7.1.10 and Liu Shuweiβs board member service agreement and
confidentiality, invention assignment and non-competition agreement shall be
terminated. |
Β | |||
Β | 7.6.4 | Β | If the Transferee elects the option set forth in SectionΒ 7.6.1, this
Agreement shall be terminated upon the election of such option made by the
Transferee in writing. |
Β | |||
Β | 7.6.5 | Β | If the Transferee elects the option set forth in SectionΒ 7.6.2, this
Agreement shall be terminated upon the payment of the Additional Purchase Price by
the Transferee. Under such circumstances, SectionΒ 6.8 shall survive the
termination of this Agreement, provided that if Yao Chongguo engages in the
design, manufacturing of any accelerator tubes by utilizing Phase (Energy)
Switcher-Standing Wave Linac patent under the Chinese Patent Number ZL 2004 1
0021763.0 and/or the Ceramic Sealed Side Coupler β Standing Wave Electron Linear
Accelerator patent under the Chinese Patent Application Number 200810044297.6
(βPatent under Prior Worksβ), and conducts sales and
provide relevant services regarding any accelerator tubes manufactured by
utilizing the Patent under Prior Works, such acts shall not be regarded as
constituting any competition for the purpose of SectionΒ 6.8. |
Β
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ArticleΒ 8 Indemnification
8.1 | Β | In case any Party breaches any warranties, covenants or any other provision hereof,
or if any representation made by any Party hereunder is untrue, which causes the other
Party/Parties to assume any expenses, liabilities or suffer any losses (including without
limitation, any loss of profit that the other Party/Parties have specific and reasonable
evidence to prove that it/they expect to obtain), the breaching Party or the Party that
makes any untrue representation shall indemnify the other Party/Parties against any such
expenses, liabilities or losses (including without limitation any interests and legal fees
paid by the other Party due to the activities of the breaching Party or the Party that
makes untrue representation). Such indemnification shall be equivalent to the actual
losses suffered by the other Party/Parties as well as all the interest deprived of from
the other Party/Parties due to the occurrence of any such breaching activities or untrue
representations. However, if the aforementioned breach of contract is due to negligence
of the Transferors, the amount payable by the Transferors for indemnification hereunder
may not exceed the portion of the Purchase Price that has already been paid by the
Transferee to the Transferors. Notwithstanding any provision hereunder to the contrary,
the Transferors and the Transferee agree not to claim for indemnification prior to the
Initial Closing Date. |
Β | ||
8.2 | Β | In the event that the Company (1)Β encounters any interruptions or obstructions during
occupation or use of the Longtan Facility or the Test Bunkers; or (2)Β suffer any losses or
damages, due to (1)Β that the Companyβs occupation, use or operation of the Longtan Land,
the Longtan Facility or the Test Land prior to issuance date of the New Business License,
does not comply with any PRC Laws; (2)Β any defect in the title of the Longtan Land, the
Longtan Facility, the Test Land or the Test Bunkers; or (3)Β any legal defect in project
filing and construction filing during the construction of the Longtan Facility or the Test
Bunkers, nor will the Company , the Transferors shall bear indemnification liabilities to
the Transferee in accordance with SectionΒ 8.1 hereof, including but without limitation
indemnifying the Transferee against (1)Β the Companyβs losses of profit due to that the
Company cannot maintain normal operations at the Longtan Facility or Test Bunkers; and (2)
any fees incurred from change of operation place by the Company. |
Β
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8.3 | Β | In the event that the Company suffers any losses or damages due to any fact or
activity of the Company that does not comply with any labor related PRC Laws prior to
issuance date of the New Business License, the Transferors shall indemnify the Transferee
against such losses or damages in accordance with SectionΒ 8.1 hereof. |
Β | ||
8.4 | Β | Without exclusion of or limit to any of the Transfereeβs other right under this
Agreement or available under any applicable laws, should Nanguang fail to pay the transfer
price of the Longtan Project equal to RMB1,658,000 to the Company in full immediately upon
receipt of the First Installment, the Purchase Price shall be reduced by RMB1,658,000.
Under such circumstances, the amount of RMB1,658,000 shall be deducted from the portion of
the First Installment paid to Nanguang, and Nanguang shall repay RMB1,658,000 to the
Transferee immediately. |
Β | ||
8.5 | Β | The Parties acknowledge that Yao Chongguoβs commitment of continuously working for
the Company for three (3)Β years after the completion of the transaction contemplated
herein is part of the consideration for the Transfereeβs valuation of and payment for the
Target Equity, and any breach of such commitment by Yao Chongguo would cause damages to
the value of the Target Equity. Without exclusion of or limit to any of the Transfereeβs
other right under this Agreement or available under any applicable laws, in the event that
Yao Chongguo fails to work for the Company for one (1)Β year following the Initial Closing
Date, Yao Chongguo shall pay liquidated damages in an amount of US$400,000 to the
Transferee; if the employment relationship between Yao Chongguo and the Company terminates
after the first anniversary following the Initial Closing Date and prior to
18th month following the Initial Closing Date due to Yao Chongguoβs own
reasons, Yao Chongguo shall pay liquidated damages in an amount of US$200,000 to the
Transferee. Notwithstanding the foregoing, Yao Chongguo will not be required to pay the
liquidated damages if he is unable to continue to work for the Company due to his health
problems prohibiting him from undertaking current work and any similar type of work. |
Β
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ArticleΒ 9 Termination
9.1 | Β | This Agreement shall immediately terminate under the following circumstances: |
Β | 9.1.1 | Β | When all the Parties hereto agree to terminate the Agreement in
writing; |
Β | |||
Β | 9.1.2 | Β | If the Transferee materially breaches or does not perform any clause
of this Agreement, the Transferors may send a written notice to the Transferee and
request it to remedy and rectify its breaching actions immediately. If the
Transferee cannot take measures satisfied to the Transferors to remedy and rectify
its breaching actions within sixty (60)Β days of issuance of the above notice, the
Transferors may terminate this Agreement immediately. |
Β | |||
Β | 9.1.3 | Β | If any of the Transferors materially breaches or does not perform
any clause of this Agreement, the Transferee may send written notices to the
Transferors to request the Transferor(s) to remedy and rectify its/his/their
breaching actions immediately. If the Transferor(s) cannot take measures
satisfied to the Transferee to remedy and rectify the breaching actions within
sixty (60)Β days of issuance of the above notice, the Transferee may terminate this
Agreement immediately. |
9.2 | Β | This Agreement may be terminated pursuant to SectionΒ 7.6.4 and SectionΒ 7.6.5. |
Β | ||
9.3 | Β | If this Agreement is terminated, no Party may request restitution. |
Β | ||
9.4 | Β | The indemnity responsibilities for breach of contract shall not be released due to
the termination of this Agreement. |
ArticleΒ 10 Assumption of Taxes and Other Fees
10.1 | Β | Taxes. Each Party hereof shall respectively bear any taxes and tax payments
such Party shall be obligated to pay relating to the transaction hereunder pursuant to the
provisions of the applicable laws. |
Β | ||
10.2 | Β | Other Fees. In addition to the taxes prescribed in SectionΒ 10.1, each Party
shall bear on its/his own all the fees for legal, accounting, investment and consulting
advisors spent by such Party arising from this transaction. Except for the fees expressly
stated above, any other fees arising from the performance of their respective obligations
pursuant to the requirements hereunder by the Parties, including without limitation, all
the fees arising from the submission of the equity transfer contemplated hereof to the
government authorities for approvals, and all governmental approvals involved concerning
the
transformation of the Company into a wholly foreign-owned enterprise (βApproval Feesβ) shall
be assumed by the Transferors and Transferee in a proportion of 50% to 50%. |
Β
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ArticleΒ 11 Force Majeure
In the case of any force majeure events (βForce Majeureβ) such as earthquake, typhoon, flood, fire,
flu, war, strikes or any other events that cannot be predicted and which are unpreventable and
unavoidable by the affected Party, which directly or indirectly causes the failure of any Party to
perform or completely perform this Agreement, then the Party affected by such Force Majeure shall
give the other Parties written notices without any delay, and shall provide details of such event
within 15Β days after sending out such notice, explaining the reasons for such failure of, partial
or delay of performance.
If such Party claiming Force Majeure fails to notify the other Party and furnish it with proof
pursuant to the above provision, such Party shall not be excused from the non-performance of its
obligations hereunder. The Party so affected by the event of Force Majeure shall use reasonable
efforts to minimize the consequences of such Force Majeure and to promptly resume performance
hereunder whenever the causes of such excuse are cured. Should the Party so affected by the event
of Force Majeure fail to resume performance hereunder when the causes of such excuse are cured,
such Party shall be liable to the other Party/Parties.
In the event of Force Majeure, the Parties shall immediately consult with each other in order to
find an equitable solution and shall use all reasonable endeavours to minimize the consequences of
such Force Majeure.
ArticleΒ 12 Miscellaneous
12.1 | Β | Effective Date. This Agreement shall become effective on the day of approval
by the Approving Authority, and shall constitute legal, effective and binding rights and
obligations to the Parties and enforceable against them in accordance with the terms and
conditions hereof. |
Β | ||
12.2 | Β | Governing law. The execution, effectiveness, performance, interpretation,
termination of this Agreement and the resolution of disputes hereunder shall be governed
by the PRC Laws. |
Β
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12.3 | Β | Disputes resolution. |
Β | 12.3.1 | Β | Any disputes, controversy or claim arising out of or relating to this Agreement,
or the interpretation, breach, termination or validity hereof shall be resolved
through consultations. Such consultations shall immediately commence at the time
when a Party gives the other Parties a written request for such consultations. In
case such dispute cannot be resolved within thirty (30)Β days after the delivery of
such request, then such dispute shall be submitted to arbitration when any Party
gives other Parties a notice. |
Β | |||
Β | 12.3.2 | Β | The dispute shall be submitted to arbitration by the Hong Kong International
Arbitration Centre in Hong Kong. There shall be a board of arbitration consisting
of three arbitrators. The Transferors as one party and the Transferee as the
other party shall be respectively entitled to select one (1)Β member within thirty
(30)Β days after being given or receiving the arbitration notice. The Parties may
freely select such members without being restricted to any list of arbitrators.
The third member shall be selected by the Chairman of Hong Kong International
Arbitration Centre. In case any Party fails to select a member thirty (30)Β days
after the first member is selected, then the Chairman of the Hong Kong
International Arbitration Centre shall make such selection. |
Β | |||
Β | 12.3.3 | Β | All arbitration proceedings shall be conducted in English and Chinese languages.
The arbitral tribunal shall apply then effective arbitration rules of the Hong
Kong International Arbitration Center for conducting the arbitration. However, in
case such rules conflict with SectionΒ 12.3 hereof, including the provision
regarding the selection of the members, SectionΒ 12.3 shall prevail. |
Β | |||
Β | 12.3.4 | Β | The arbitrators shall strictly apply the PRC Laws as the substantive law for
arbitration on any dispute submitted by the Parties, and shall not apply any other
substantive law. |
Β | |||
Β | 12.3.5 | Β | The judgment of the arbitration shall be final and shall have binding forth on
all the Parties. Each Party shall be entitled to enforce such judgment with a
court with jurisdiction. |
Β
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12.4 | Β | Entire agreement. This Agreement constitute the entire agreement between the
Parties and supersede all prior agreements, covenants, representations and conditions,
oral or written, express or implied, between the Parties with respect to the subject
matter hereof and thereof. |
Β | ||
12.5 | Β | Waiver. The failure or the delay to exercise any rights or remedies
prescribed under this Agreement or any amendment or supplement hereof by any Party shall
not be deemed as waiving of any his/its rights; any partial exercise of the aforementioned
rights or remedies by a Party shall not prevent such Party from further exercising such
rights or remedies. |
Β | ||
12.6 | Β | Severability. In the event that any provision of this Agreement is found to
be illegal, invalid or unenforceable, then all the Parties agree that such provision shall
be enforced to the greatest extent as practicable in order to achieve the intentions of
the Parties, and the validity, legality or enforceability of the remaining provisions of
this Agreement shall not be affected or compromised. If necessary and in order to
accomplish the intentions of the Parties, the Parties shall strive in good faith to amend
this Agreement and replace such invalid, illegal or unenforceable provisions with
enforceable provisions that shall be as close as possible to the those replaced
provisions. |
Β | ||
12.7 | Β | Notices. Any and all notices, inquiries, requests, consents and other
communications required or authorized by this Agreement shall be in writing, and shall be
deemed to be duly given through one or more methods as follows: (a)Β for notices delivered
in person, the date of delivery shall be deemed as having been duly given or made; (b)Β for
notices by fax, shall be deemed effectively given on the date of successful transmission
(as evidenced by an automatically generated confirmation of transmission); and (c)Β for
notices by express delivery, the fourth business day after the express mail delivery date
shall be deemed as having been duly given or made. All such notices, inquiries, requests,
consents and other communications shall be sent to the following addresses: |
To Nanguang:
Address: Longtan City Industry Zone, Second Section of East Third Ring Road, Chengdu, PRC
Telephone: 00 00 0000 0000
Fax: 00 00 0000 0000
Telephone: 00 00 0000 0000
Fax: 00 00 0000 0000
Β
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Attention: Xx.Β Xxx Shuwei
To Yao Chongguo:
Address: 1419, Tower A, Xxxxx Xxxxx, Xx.0, Xxxxxxxx Xxxx, Xxxxxxx
Telephone: 00 0000 000 0000
Fax: 00 00 0000 0000
Attention: Xx.Β Xxx Chongguo
Telephone: 00 0000 000 0000
Fax: 00 00 0000 0000
Attention: Xx.Β Xxx Chongguo
To the Transferee:
Address: 0000 Xxxxxx Xxx, Xxxxxxx, Xxxxxxxxx 00000
Telephone: x0 (000)Β 000-0000
Fax: x0 (000)Β 000-0000
Attention: Xxxxx Xxxx
Telephone: x0 (000)Β 000-0000
Fax: x0 (000)Β 000-0000
Attention: Xxxxx Xxxx
12.8 | Β | Further Warranties. In order to finish the equity transfer agreed upon
herein, each Transferor agrees to take appropriate actions, to execute and deliver
instruments and documents, and to complete other actions reasonably necessary. |
Β | ||
12.9 | Β | Amendment and Supplement. The amendment and supplement of this Agreement
shall be subject to the written agreement executed by each Party. All executed amendment
agreements and supplemental agreements are part of this Agreement, and shall be equally
effective and valid with this Agreement. |
Β | ||
12.10 | Β | The appendixes hereof have the same legal effect with this Agreement. The appendixes
include: |
Β | 12.10.1 | Β | AppendixΒ I: Disclosure Schedule |
Β | |||
Β | 12.10.2 | Β | AppendixΒ II: Form of Compliance Certificates |
Β | |||
Β | 12.10.3 | Β | AppendixΒ III: The Requirements for Manufacturing Processes and Procedures |
12.11 | Β | Languages and Counterparts. This Agreement is made in both English and
Chinese languages. The original of this Agreement is in eight (8)Β copies. Each Party
holds one copy, and other copies are for the submission to the relevant approval
authorities. All the copies are equally valid. |
Β | ||
12.12 | Β | Survival. Articles 6.9, 7.6, 8, 10 and 12 hereof shall survive the Initial Closing
and the termination of this Agreement for any reason. |
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.
Β
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Execution Version
Each Party has signed this Equity Interest Transfer Agreement in person or through his/its duly
authorized representative as of the date first written above.
Β | Β | Β | Β | Β |
Β | Sichuan Nanguang Vacuum Technology Incorporated Ltd. Β |
Β | ||
Β | By:Β Β | /s/Β Xxx Xxxxxx | Β | |
Β | Β | Name:Β Β | Xxx Xxxxxx | Β |
Β | Β | Position: Legal RepresentativeΒ | Β | |
Β | ||||
Β | Yao Chongguo Β |
Β | ||
Β | By:Β Β | /s/Β Yao Chongguo | Β | |
Β | Β | Β | Β | |
Β | TomoTherapy Incorporated Β |
Β | ||
Β | By:Β Β | /s/Β Xxxxx Books | Β | |
Β | Β | Name:Β Β | Xxxxx Books | Β |
Β | Β | Position: Chief Operating OfficerΒ | Β |
Β
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AppendixΒ II-A
FORM OF COMPLIANCE CERTIFICATE
Date: [β’]
Capitalized terms used herein without definition have the meanings assigned to such terms in
that certain Equity Interest Transfer Agreement (the βAgreementβ), dated SeptemberΒ 11, 2008, by and
among TomoTherapy Incorporated (the βTransfereeβ), Sichuan Nanguang Vacuum Technology Incorporated
Ltd. (βNanguangβ) and Yao Chongguo (βYao Chongguoβ, together with βNanguangβ, the βTransferorsβ).
THE UNDERSIGNED, each a Transferor as defined in the Agreement, hereby certifies that
(i) | Β | the conditions specified in SectionΒ 7.1 of the Agreement (except for SectionΒ 7.1.6) have been
fulfilled as of the date hereof, except for those conditions waived by the Transferee in
writing attached hereto. |
Β | ||
(ii) | Β | The representations and warranties made by the Transferors in the Agreement are true and
correct as of the date hereof. |
IN WITNESS WHEREOF, the undersigned have set forth their signatures on this Compliance
Certificate as of the date first set forth above.
Β | Β | Β | Β | Β |
Β | Sichuan Nanguang Vacuum Technology Incorporated Ltd. Β |
Β | ||
Β | By:Β Β | Β | Β | |
Β | Β | Name:Β Β | Xxx XxxxxxΒ | Β |
Β | Β | Position: Legal RepresentativeΒ | Β | |
Β | ||||
Β | Yao Chongguo Β |
Β | ||
Β | By:Β Β | Β | Β | |
Β | Β | Β | Β | |
Β | Β | Β | Β |
Β
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AppendixΒ II-B
FORM OF COMPLIANCE CERTIFICATE
Date: [β’]
Capitalized terms used herein without definition have the meanings assigned to such terms in
that certain Equity Interest Transfer Agreement (the βAgreementβ), dated SeptemberΒ 11, 2008, by and
among TomoTherapy Incorporated (the βTransfereeβ), Sichuan Nanguang Vacuum Technology Incorporated
Ltd. (βNanguangβ) and Yao Chongguo (βYao Chongguoβ, together with βNanguangβ, the βTransferorsβ).
THE UNDERSIGNED, each a Transferor as defined in the Agreement, hereby certifies that the
Initial Production Requirements specified in SectionΒ 7.2 of the Agreement have been satisfied as of
the date hereof.
IN WITNESS WHEREOF, the undersigned have set forth their signatures on this Compliance
Certificate as of the date first set forth above.
Β | Β | Β | Β | Β |
Β | Sichuan Nanguang Vacuum Technology Incorporated Ltd. Β |
Β | ||
Β | By:Β Β | Β | Β | |
Β | Β | Name:Β Β | Xxx XxxxxxΒ | Β |
Β | Β | Position: Legal RepresentativeΒ | Β | |
Β | ||||
Β | Yao Chongguo Β |
Β | ||
Β | By:Β Β | Β | Β | |
Β | Β | Β | Β | |
Β | Β | Β | Β |
Β
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AppendixΒ II-C
FORM OF COMPLIANCE CERTIFICATE
Date: [β’]
Capitalized terms used herein without definition have the meanings assigned to such terms in
that certain Equity Interest Transfer Agreement (the βAgreementβ), dated SeptemberΒ 11, 2008, by and
among TomoTherapy Incorporated (the βTransfereeβ), Sichuan Nanguang Vacuum Technology Incorporated
Ltd. (βNanguangβ) and Yao Chongguo (βYao Chongguoβ, together with βNanguangβ, the βTransferorsβ).
THE UNDERSIGNED, each a Transferor as defined in the Agreement, hereby certifies that the
conditions specified in SectionΒ 7.3 of the Agreement have been fulfilled as of the date hereof,
except for those conditions waived by the Transferee in writing attached hereto.
IN WITNESS WHEREOF, the undersigned have set forth their signatures on this Compliance
Certificate as of the date first set forth above.
Β | Β | Β | Β | Β |
Β | Sichuan Nanguang Vacuum Technology Incorporated Ltd. Β |
Β | ||
Β | By:Β Β | Β | Β | |
Β | Β | Name:Β Β | Xxx XxxxxxΒ | Β |
Β | Β | Position: Legal RepresentativeΒ | Β | |
Β | ||||
Β | Yao Chongguo Β |
Β | ||
Β | By:Β Β | Β | Β | |
Β | Β | Β | Β |
Β
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AppendixΒ II-D
FORM OF COMPLIANCE CERTIFICATE
FORM OF COMPLIANCE CERTIFICATE
Date: [β’]
Capitalized terms used herein without definition have the meanings assigned to such terms in
that certain Equity Interest Transfer Agreement (the βAgreementβ), dated SeptemberΒ 11, 2008, by and
among TomoTherapy Incorporated (the βTransfereeβ), Sichuan Nanguang Vacuum Technology Incorporated
Ltd. (βNanguangβ) and Yao Chongguo (βYao Chongguoβ, together with βNanguangβ, the βTransferorsβ).
THE UNDERSIGNED, each a Transferor as defined in the Agreement, hereby certifies that the
conditions specified in SectionΒ 7.4 of the Agreement have been fulfilled as of the date hereof,
except for those conditions waived by the Transferee in writing attached hereto.
IN WITNESS WHEREOF, the undersigned have set forth their signatures on this Compliance
Certificate as of the date first set forth above.
Β | Β | Β | Β | Β |
Β | Sichuan Nanguang Vacuum Technology Incorporated Ltd. Β |
Β | ||
Β | By:Β Β | Β | Β | |
Β | Β | Name:Β Β | Xxx XxxxxxΒ | Β |
Β | Β | Position: Legal RepresentativeΒ | Β | |
Β | ||||
Β | Yao Chongguo Β |
Β | ||
Β | By:Β Β | Β | Β | |
Β | Β | Β | Β | |
Β | Β | Β | Β |
Β
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Execution Version
AppendixΒ III
The Requirements for Manufacturing Processes and Procedures
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