Equity Transfer Agreement
Exhibit
2.3
Transferor
(hereinafter referred to as Party A): Shenzhen Zhaoheng Industrial Co.,
Ltd.
Address:
F/17, Unit A, Jinfengcheng Building, No. 5015, Shennan East Road, Shenzhen,
China
Legal
Representative: Xxxxxxxx Xx
Title:
Chairman of Board
Transferee
(hereinafter referred to as party B): Shenzhen Zhaoheng Hydropower Co.,
Ltd.
Address:
F/17, Unit A, Jinfengcheng Building, No. 5015, Shennan East Road, Shenzhen,
China
Legal
Representative: Xxxxxxxx Xx
Title:
Chairman of Board
In
accordance with the relevant PRC laws and regulations and adhering to the
principles of voluntariness, fairness and good faith, Party A and Party B sign
this Equity Transfer Agreement (this “Agreement”).
WHEREAS:
Hunan
Sanjiang Electric Power Co., Ltd. (hereinafter referred to as Hunan Sanjiang) is
a joint venture company and was founded in 2004. As of the signing date of this
Agreement, the registered capital of Hunan Sanjiang was RMB199.4 million, of
which Zhaoheng Holdings Limited contributed RMB49.85 million, or 25% equity
interest, Party A contributed RMB129.61 million, or 65% equity interest and
Party B contributed RMB19.94 million, or 10% equity interest.
1. The
Equity Transferred
Party A
agrees to sell, and Party B agrees to purchase from Party A a 65% equity
interest in Hunan Sanjiang, which is equivalent to RMB129.61 million (the
“Equity Transfer”).
2. Sales
Price and Payment Terms
2.1: The
price of this Equity Transfer is RMB129.61 million (the “total
amount”).
2.2:
Party A and Party B agree that within three working days from the date this
Agreement becomes effective, Party B shall pay Party A 20% of the total amount
as deposit. The deposit shall be offset against the total amount after Party A
and Party B fulfill their obligations under this Agreement. If this Agreement is
not fulfilled due to Party B’s default, Party B is not entitled to claim a
refund of the deposit. If this Agreement is not fulfilled due to Party A’s
default, Party A shall refund
twice the amount of the deposit.
2.3:
Party B shall pay Party A the balance of the total amount within five working
days from the date the registration of the Equity Transfer with the
Administration for Industry and Commerce is completed to the bank account
designated by Party A.
Account
Name: Shenzhen Zhaoheng Industrial Co., Ltd.
Bank
Name: Bank of China, Jingbei Branch in Shenzhen
Account
Number: 000000000000000000
3. Rights
and Obligations of Both Parties
3.1:
Party A shall obtain the approval of more than half of the other shareholders of
Hunan Sanjiang regarding this Equity Transfer. Once Party A receives the deposit
from Party B, Party A and Party B shall amend shareholder register, articles of
association and register the Equity Transfer with the Administration for
Industry and Commerce. Party A shall provide Party B with the relevant documents
and materials required by the aforementioned registration.
3.2: As
of the date of amendment of the shareholder register, Party A will no longer
enjoy any shareholder right, and Party B shall be the legitimate owner and enjoy
all rights and bear all obligations attached to the equity
transferred.
4. Taxes
and Fees for this Equity Transfer
Party A
and Party B each shall bear his corresponding liability concerning governmental
fees and taxes in relation to this Equity Transfer in accordance with relevant
PRC laws and regulations.
5. Breach
of Duties
5.1: If
Party B fails to pay Party A the consideration for the Equity Transfer in
accordance with Article 2.3 under this Agreement, Party B shall pay Party A
liquidated damages at a rate of 0.5% of the overdue payment per day. If the
payment is overdue for more than 30 days, Party A has the right to terminate
this Agreement.
5.2: If
this Agreement is terminated due to force majeure or upon reaching a consensus through
consultations by both parties, Party A shall, within three working days
after such termination, refund the amount paid to Party B with interest
according to the corresponding loan interest set by People’s Bank of China.
Party A shall pay Party B liquidated damages at a rate of 0.5% of the overdue
payment per day.
6.
Dispute Resolution
The two
parties may try to settle any dispute through amicable negotiation. If no
agreement can be reached, either party may submit the case to the People’s Court
of Shenzhen where this Agreement was signed.
7.
Modification and Termination of this Agreement
7.1: This
Agreement may be modified or terminated if:
7.1.1:
both parties agree to modify or terminate this Agreement due to change of
situation without any harm to national and social interests;
2
7.1.2:
all obligations under this Agreement may not be fulfilled due to force majeure;
or
7.1.3:
either party does not fulfill its obligations under this Agreement within the
period agreed upon by both parties and the other party recognizes such
non-fulfillment.
If both
parties agree to terminate this Agreement, Party A shall refund payment paid to
Party B.
7.2:
Either party may terminate this Agreement by written notice without bearing any
legal liabilities under any of the following situations:
7.2.1:
Either party makes false statement or warranty under this
Agreement.
7.2.2:
Either party materially violates the articles under this Agreement and causes
harm to the other party.
8. The
Effectiveness of this Agreement:
This
Agreement becomes effective after being signed and sealed by both
parties.
9.
Miscellaneous
9.1:
Party A and Party B may sign a supplemental agreement if there are other issues
not covered by this Agreement.
9.2: If the Agreement cannot be
fully performed due to an event of force majeure, liability is partially or
wholly exempted depending on the effect of the event of force majeure. An event
of force majeure occurring after a party has defaulted on his performance
does not exempt him from liability. If a party is unable to perform the
Agreement as a consequence of force majeure, he shall timely notify the
other party in order to mitigate the loss potentially incurred by that party,
and shall provide proof within a reasonable period of time.
9.3: This
Agreement is in six copies. Party A, Party B, Hunan Sanjiang, Administration for
Industry and Commerce of Changde City, Administration for Foreign Exchange of
Changde City, and Bureau of Commerce of Changde City shall each keep one
copy.
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Transferor
(Party A):
(Seal)
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Transferee
(Party B):
(Seal)
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|||
|
Legal
Representative
|
Legal
Representative
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|||
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or
Authorized Representative(Signature):
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or
Authorized Representative (Signature):
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Date:
April 25, 2008
3
Supplemental
Agreement
Transferor
(hereinafter referred to as Party A): Shenzhen Zhaoheng Industrial Co.,
Ltd.
Address:
F/17, Unit A, Jinfengcheng Building, No. 5015, Shennan East Road, Shenzhen,
China
Legal
Representative: Xxxxxxxx Xx
Title:
Chairman of Board
Transferee
(hereinafter referred to as party B): Shenzhen Zhaoheng Hydropower Co.,
Ltd.
Address:
F/17, Unit A, Jinfengcheng Building, No. 5015, Shennan East Road, Shenzhen,
China
Legal
Representative: Xxxxxxxx Xx
Title:
Chairman of Board
In
accordance with the relevant PRC laws and regulations and adhering to the
principles of voluntariness, fairness and good faith, Party A and Party B signed
the Equity Transfer Agreement dated April 25, 2008 (the “Equity Transfer
Agreement”), in which Party A agreed to sell and Party B agreed to purchase 65%
equity interest in Hunan Sanjiang Electric Power Co., Ltd., equivalent to
RMB129.61 million (this “Equity Transfer”). Now Party A and Party B agree to the
following terms in the Supplemental Agreement (this “Agreement”) after amicable
negotiations concerning this Equity Transfer.
1.
Effective Date of Equity Transfer:
Party A
and Party B agree that the effective date of this Equity Transfer shall be
December 31, 2007. After the effective date, Party A no longer enjoys any
shareholder right and Party B shall be the legitimate owner and enjoy
all rights and bear all obligations attached to the equity in Hunan Sanjiang
Electric Power Co., Ltd.
2. Party
A and Party B may negotiate if there are other issues not covered by this
Agreement.
3. This
Agreement is an integral part of the Equity Transfer Agreement. Should any
discrepancy arise between this Agreement and the Equity Transfer Agreement, this
Agreement shall prevail.
4. This
Agreement becomes effective after being signed and sealed by both
parties.
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Transferor
(Party A):
(Seal)
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Transferee
(Party B):
(Seal)
|
|||
|
Legal
Representative
|
Legal
Representative
|
|||
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or
Authorized Representative(Signature):
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or
Authorized Representative (Signature):
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Date:
April 25, 2008
4
