Malipo County Runhong Hydropower Co., Ltd. Equity Transfer Agreement
Exhibit
10.2
Malipo
County Runhong Hydropower Co., Ltd.
Party A:
Wenshan Malipo Zijin Tungsten Group Co., Ltd. (Transferor)
Address:
Zijin Tungsten Group Co., Ltd., Nanfeng Village, Malipo County, Wenshan State,
Yunnan Province
Legal
Representative: Lin Qinquan; Title: Vice Chairman of Board and General
Manager
Party B:
Shenzhen Zhaoheng Hydropower Co., Ltd. (Transferee)
Address:
F/19, Unit A, JinFengCheng Building, 0000 Xxxxxxx Xxxx, Xxxxxxxx XXX
000000
Legal
Representative: Xxxxxxxx Xx; Title: Chairman of Board
WHEREAS:
Party A
is currently the only shareholder of Yunnan Province, Malipo County Runhong
Hydropower Co., Ltd. (“Runhong”), holding 100% of the shares of Runhong, which
is a limited liability company established in accordance with the PRC laws and
regulations. Runhong has a registered capital of 10.5 million RMB and is
primarily engaged in the development and operation of hydropower stations at
Nawang River with total designed installed capacity of 6.6MW. The installed
capacity of Cascade I station is 1.6 MW and the installed capacity of Cascade II
station is 5 MW.
Party A
agreed to transfer 90% of all of its equity interest in Runhong to Party B and
Party B agreed to purchase 90% of Party A’s equity interest in Runhong. Party A
retains 10% of all of its equity interest.
Under the
principles of fairness and honesty, and after amicable negotiations, Party A and
Party B agreed on the following terms regarding the rights and duties of both
parties in relation to the transfer of equity of Runhong:
1: Party
A guarantees its ownership of 100% equity interest in Runhong and has paid off
relevant registered capital. Party A further guarantees that it has the
legitimate right to dispose such equity interest, and during its ownership of
such equity interest, Party A has never disposed of its equity interest in any
forms, including but not limited to transfer, encumbered, mortgage such equity
interest or provide guarantee to any third party with such equity as the
underlining asset.
2: Transfer
Price and Payment Terms
2.1:
Party A and Party B agree that the base date of the transfer of equity as May
31, 2009 (“Base Date”). The consideration for the transfer of equity from Party
A to Party B is 25.81 million RMB (including the loan of 6.36 million RMB as
working capital by Party A to Runhong).
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2.2:
Party A and Party B agree that on the following day this agreement is signed by
both parties, Party A and Party B shall register the change in equity ownership
with the Administration for Industry and Commerce. Party B guarantees that
within 15 days from the third year since this agreement is signed by both
parties and no later than July 10, 2012, Party B shall pay Party A 2 million
RMB; on the fourth year since this agreement is signed by both parties and no
later than July 10, 2013, Party B shall pay Party A 2 million RMB; and on the
fifth year since this agreement is signed by both parties and no later than July
10, 2014, Party B shall pay Party A the balance of 21.81 million RMB. At the
time of each payment, Party A shall inform Party B its bank account name, bank
name and account number and other relevant information in writing, and provide
legitimate invoice to Party B.
2.3:
Party A and Party B agree that within 15 days of the fifth year since this
agreement is signed by both parties and no later than July 10, 2014, Party A
shall transfer the remaining 10% equity interest in Runhong to Party B at a
consideration of 1.05 million RMB. Party B guarantees the purchase of such
equity interest at the agreed price.
3. Rights
and Duties of Both Parties
3.1
Rights and Duties of Party A
3.1.1:
Party A guarantees that the financial statements as of May 31, 2009 it provided
to Party B reflects the true and correct financial positions of Runhong (total
liabilities amounted to 6,597,854.27 RMB; total shareholder’s equity amounted to
10,498,520.02 RMB, total assets amounted to 17,096,374.29 RMB, see financial
statements of Runhong as of May 31, 2009 for more detailed information). Party A
further guarantees that other than the disclosures in the financial statements,
Runhong does not have any other liabilities or obligations.
3.1.2:
After Party B has amended the articles of association Party A shall assist Party
B in the registration of the change in equity ownership with the Administration
for Industry and Commerce as a result of the equity transfer.
3.1.3:
Within 3 days after the registration of the change in equity ownership with the
Administration for Industry and Commerce, Party A shall provide Party B with all
Runhong’s operating materials including all seals, financials, sales, property,
human resources, management and engineering information. Party A shall be
responsible for the completeness and truthfulness of all materials provided to
Party B.
3.1.4:
Party A shall be responsible for the portion of the relevant fees and taxes
related to this equity transfer that shall be paid by Party A under the PRC laws
and regulations.
3.2.
Rights and Duties of Party B
3.2.1:
Party B should pay full price for this equity transfer in accordance with the
terms of this agreement.
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3.2.2:
After this equity transfer, Party B shall be the legitimate owner of the equity
and enjoy all rights and obligations attaching to the equity, and assume all
liabilities disclosed in the financial statement as of the Base Date. Party A
shall be responsible for all undisclosed liabilities, and Party B has the right
to deduct the equity consideration to pay off any liabilities not included in
the financial statements.
3.2.3:
Party B shall be responsible for the portion of relevant fees and taxes related
to this equity transfer that shall be paid by Party B under the PRC laws and
regulations.
3.3: Once
the equity transfer is completed and registered, Party A shall assist Party B in
the equipment installation and construction management to assure that the
project is completed as early as possible.
3.4: From
the date the equity transfer is registered with the Administration for Industry
and Commerce, Party B shall be responsible for the operation and construction
work of Runhong, Party A shall not be responsible for any capital
expenditure.
4.
Liabilities of the Breach of Contract
4.1:
After this agreement becomes effective, either part shall be liable for the
other party’s loss if it breaches its duties under this agreement.
4.2: If
Party B fails to make payment to Party A in accordance to this agreement, Party
B shall pay interest of overdue balance at 0.5% per day to Party A. If the
payment is overdue for more than 60 days, this agreement shall be canceled and
Party B shall pay Party A all interest loss from the balance of equity
consideration at bench xxxx rate of People’s Bank of China. In addition, Party A
shall recover equity interest in Runhong without further
consideration.
5: This
Agreement may be modified or terminated if any of the following events
occurs:
5.1: all
obligations under this Agreement may not be fulfilled due to force
majeure;
5.2: both
parties agree to modify or terminate this Agreement without any harm to national
and social interests;
5.3:
other than the situation as stipulated under article 5.2, either party has the
right to inform the other party in writing and terminate this agreement if the
other party does not fulfill its obligations under this Agreement within 30 days
of the due date of performing the obligation.
5.4:
either party provided false guarantees or statements under this
agreement.
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5.5:
either party provided false material or cannot provide relevant materials for
the purpose of the equity transfer, and as a result, the equity transfer cannot
be executed and the contract cannot be fulfilled within the period agreed upon
by both parties.
The
termination of this agreement does not exclude the liabilities under article 5.
Either party shall compensate the other party if it breaches obligations under
this agreement the deposit is not enough to cover the loss. If the agreement is
terminated without any party’s default, Party A shall return the deposit,
together with any interest received from the bank, to Party B
within three days the agreement is terminated. Party A shall pay
interest of overdue balance at 0.5% per day to Party B.
6: Party
A and Party B can sign supplementary agreement if there are issues not covered
in this agreement. The supplementary agreement has the same legal effect as this
agreement.
7: Both
parties shall try to settle any dispute through amicable negotiations first, and
if no agreement can be reached, the case shall be submitted to local People’s
Court where this agreement is signed in accordance with relevant law. This
agreement is signed in Malipo County of Yunnan Province.
8: This
agreement is in six copies, Party A and Party B will each keep two copies;
Runhong and the Administration for Industry and Commerce will each keep one
copy. All copies have the same legal effect.
Party A
(seal): Wenshan Malipo Zijin Tungsten Group Co., Ltd.
Legal
Representative (or representative duly authorized):
Party B
(sealed): Shenzhen Zhaoheng Hydropower Co., Ltd.
Legal
Representative (or representative duly authorized):
Signed:
June 23, 2009
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