ASSIGNMENT AGREEMENT
EXHIBIT 99.1
AGREEMENT FOR ASSIGNMENT OF EQUITY INTEREST
IN
XXXXXXXX XXXXXX PROTECTION & CONTROL CO.,LTD
BETWEEN
HATHAWAY CORPORATION
AND
BEIJING SIFANG TONGCHUANG PROTECTION AND
CONTROL CO., LTD
ASSIGNMENT AGREEMENT
AGREEMENT FOR ASSIGNMENT OF EQUITY INTEREST
This Agreement is made this day of , 2001, in Beijing, People's Republic of
China ("China") by and between the following parties:
(1) Hathaway Corporation, a corporation lawfully organized and existing under
the laws of the State of Colorado, United State of America and with its
legal address at 0000 Xxxx Xxxxxxx Xxxxx, Xxxxxxxxx, Xxxxxxxx, XXX ("Party
A"); and
(2) Beijing Sifang Tongchuang Protection and Control Co., Ltd., a company
lawfully organized and existing under the laws of China and with its legal
address at 0xx Xxxxx, Xxxxxxxx 0, 0xx Xxxxxx, Xxxxxxx Information Industry
Base, Haidian District, Beijing ("Party B").
WHEREAS:
1. Party A legally holds a twenty percent (20%) interest in Xxxxxxxx Xxxxxx
Protection & Control Co., Ltd. (hereinafter referred to as "Xxxxxxxx
Xxxxxx");
2. Party B legally holds a twenty-two and one-tenth percent (22.10%) interest
in Xxxxxxxx Xxxxxx;
3. Xxxxxxxx Xxxxxx is a limited liability company lawfully organized and
existing under the laws of China and registered in Beijing, China; and
4. Party A is willing to assign its entire interest in Xxxxxxxx Xxxxxx to
Party B and Party B is willing to accept the assignment of such interest
upon the terms and conditions set out in this Agreement.
In order to set out the respective rights and obligations of both Party A and
Party B with respect to the assignment of Party A's twenty percent (20%)
interest in Xxxxxxxx Xxxxxx (the "Equity Interest"), Party A and Party B hereby
agree as follows:
ARTICLE 1. ASSIGNMENT OF EQUITY INTEREST
1.1 In accordance with the provisions of this Agreement, Party A agrees to
assign to Party B and Party B agrees to purchase from Party A the Equity
Interest, together with all rights, interests, profits, and obligations
relating thereto.
1.2 Legal title in the Equity Interest shall not pass from Party A to Party B
until each of the conditions precedent set out in Article 4.1 has been
satisfied or waived in writing by Party A.once legal title passes , Party A
undertakes to take all steps
ASSIGNMENT AGREEMENT
necessary to assist Party B in recording the change of shareholders in
Xxxxxxxx Xxxxxx, and completing other legal formalities in connection with
the assignment of the Equity Interest under this Agreement.
ARTICLE 2. PURCHASE PRICE AND TIME AND FORM OF PAYMENT
2.1 In consideration of the assignment from Party A to Party B of the Equity
Interest, Party B has agreed to pay Three Million and Twenty Thousand US
Dollars (US$3,020,000) to Party A (the "Purchase Price").
2.2 This Agreement is a fixed price agreement. The Purchase Price cannot be
amended except by the consent of both Party A and Party B, as evidenced by
a written agreement signed by the authorized representatives of Party A and
Party B.
2.3 Party A and Party B agree that as soon as practicable after the date both
Parties have signed this Agreement, Party B shall complete a formal written
application (to be filed in joint names with Party A) to the relevant
department of the State Administration of Foreign Exchange ("SAFE") in
order to obtain the SAFE's approval for Party B (i) to convert the Renminbi
equivalent of the Purchase Price from Renminbi into US Dollars, and (ii) to
remit the Purchase Price to the overseas bank account specified by Party A.
2.4 In connection with the application referred to in Article 2.3, Party B
agrees that it shall:
(i) obtain any documents, approvals, consents, etc., or copies thereof,
required by the SAFE in order for the SAFE to issue the approvals
referred to in Article 2.3; and
(ii) attend any meetings requested by the SAFE in connection with the
application described in Article 2.3 and use its best efforts to
overcome any objections raised by the SAFE in relation thereto.
2.5 Party B agrees that it shall bear all expenses incurred in connection with
the application to the SAFE described in Article 2.3.
2.6 Each Party shall be responsible for the payment of any taxes and fees
imposed against it under applicable Chinese laws and regulations in
connection with the payment and receipt of the Purchase Price. The Parties
agree that Party A's tax liability (which shall be imposed by withholding)
shall be calculated by Xxxxxx Xxxxxxxx. Party B shall provide Party A with
the original tax receipt issued by the relevant tax bureau in respect of
the amount withheld forthwith upon issue of the said receipt.
ASSIGNMENT AGREEMENT
ARTICLE 3. REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS
3.1 On the date this Agreement is signed and the date on which legal title to
the Equity Interest passes from Party A to Party B, Party A represents,
warrants and undertakes to Party B as follows:
(i) Party A, as the legal owner of the Equity Interest, has obtained all
internal consents, permissions and approvals required for the
assignment of the Equity Interest to Party B and to enter into this
Agreement;
(ii) there are no forms of pledge, lien or other forms of security right
encumbering the Equity Interest, nor does the assignment of the Equity
Interest contravene any agreement entered into by Party A; and
(iii) Party A has not entered into any form of assignment agreement or
arrangement with any third party other than Party B in relation to the
Equity Interest or any part thereof.
3.2 On the date this Agreement is signed and the date on which legal title to
the Equity Interest passes from Party A to Party B, Party B represents,
warrants and undertakes to Party A as follows:
(i) Party B has all rights, power and capacity to make and perform this
Agreement and has obtained all necessary consents, permissions and
approvals required to enter into this Agreement; and
(ii) Party B's acceptance of the Equity Interest does not and shall not
violate any legal documents binding Party B, such as Articles of
Association, signed contracts and agreements.
ARTICLE 4. EFFECTIVE DATE OF ASSIGNMENT OF EQUITY INTEREST
4.1 Legal title in the Equity Interest shall pass from Party A to Party B on
the date upon which the last of the following conditions precedent has been
satisfied or waived in writing by Party A:
(i) Party B provides Party A with copies of approvals issued by the SAFE
permitting (a) conversion by Party B of the Renminbi equivalent of the
Purchase Price into US Dollars and (b) the remittance by Party B of
the Purchase Price to the overseas bank account specified by Party A;
ASSIGNMENT AGREEMENT
(ii) Party B provides Party A with evidence in writing that Party B's bank
has remitted the Purchase Price (less applicable taxes withheld by
Party B in accordance with Article 2.6) to Party A's bank account and
Party A confirms receipt thereof;
(iii) Party B procures that Xxxxxxxx Xxxxxx changes its registered
enterprise name to a name that does not include the names "Hathaway"
or "/ / / /" or any other names identical or similar thereto;
(iv) Party B undertakes in writing to Party A not to use the names
"Hathaway" or "/ / / /" or any other names identical or similar
thereto in the course of Party B's business, whether as trademarks,
service marks or as part of an enterprise name, trade name or domain
name; and
(v) Party B procures that Xxxxxxxx Xxxxxx undertakes in writing to Party A
not to use the names "Hathaway" or "/ / / " or any other names
identical or similar thereto in the course of Hathaway Sifang's
business, whether as trademarks, service marks or as part of an
enterprise name, trade name or domain name.
4.2 In the event that the conditions precedent set out in Article 4.1 are not
satisfied within ninety (90) days from the date both Parties sign this
Agreement, then this Agreement shall terminate automatically and, except as
provided in Article 5.2, Party A and Party B shall not be liable to one
another in relation to the purchase and sale of the Equity Interest under
this Agreement.
4.3 After legal title in the Equity Interest has passed from Party A to Party
B, Party A shall no longer enjoy any rights nor be liable for any
obligations or responsibilities in connection with the Equity Interest.
ARTICLE 5. LIABILITY FOR BREACH
5.1 Breach of this Agreement shall arise when either Party violates its
representations, warranties or undertakings or any of the provisions of
this Agreement. The breaching party shall pay the aggrieved party complete
and sufficient compensation for losses.
5.2 The responsibilities of the Parties with regard to breaches of this
Agreement shall survive the termination of this Agreement.
ASSIGNMENT AGREEMENT
ARTICLE 6. APPLICABLE LAW
The formation, validity, interpretation and implementation of the Agreement and
the settlement of disputes hereunder are governed by the relevant laws of China.
ARTICLE 7. SETTLEMENT OF DISPUTES
7.1 In the event that any dispute arises between the Parties in relation to
this Agreement, including any dispute regarding its existence, validity,
breach or termination, the Parties shall attempt to settle such dispute
through friendly consultations. If no settlement has been reached within
thirty (30) days from the date one Party has served written notice on the
other Party requesting consultations, then either Party may apply to the
China International Economic and Trade Arbitration Commission ("CIETAC") in
Beijing for arbitration in accordance with its arbitration rules and
procedures then in effect. The Parties agree that the sole arbitrator to be
appointed by CIETAC shall be a national of a country other than the country
of origin of either Party. The arbitration award shall be final and binding
upon the Parties.
7.2 Pursuant to relevant laws of China, if any provision of this Agreement is
determined to be invalid or unenforceable, the offending provision shall be
stricken without affecting the continuing validity and implementation of
the other provisions of this Agreement.
ARTICLE 8. AGREEMENT RIGHTS
Without the written consent of the other Party, neither Party shall assign the
rights it enjoys under this Agreement. The successors and approved assignees of
the Parties shall be bound by this Agreement.
ARTICLE 9. EFFECTIVE DATE OF THE AGREEMENT
This Agreement shall enter into effect and shall bind the Parties from the date
it is signed by the authorized representatives of the Parties.
ARTICLE 10. MISCELLANEOUS
10.1 Any notice, demand or other communication given under this Agreement to a
Party shall be in writing and delivered or sent to that Party at its
address or fax number specified in this Article 10.1 (or such other address
or fax number as the addressee has by three (3) days' prior written notice
specified to the other Party). Any notice, demand or other communication
shall be deemed to have been
ASSIGNMENT AGREEMENT
delivered (i) if given or made by letter, fourteen (14) calendar days after
posting, and (ii) if given or made by fax, on the date of dispatch, as
evidenced by confirmed transmission report. The respective designated
addresses of Party A and Party B are as follows:
Party A's address: 0000 Xxxx Xxxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxx, XXX 00000
Contact person: Mr. Xxxxxxx Xxxxx
Telephone number: (0 000) 000 0000
Fax number: (0 000) 000 0000
Party B's address: 0xx Xxxxx, Xxxxxxxx 0, 0xx Xxxxxx,
Xxxxxxx Information Industry Base,
Haidian District, Beijing
Contact person: Xxxx Xxxxxx
Telephone number: (00 00) 0000 0000
Fax number: (00 00) 0000 0000
10.2 This Agreement constitutes the entire agreement between the Parties with
respect to the subject matter hereof, supersedes any prior expression of
intent or understanding relating hereto and may only be modified or amended
by written instrument signed by the authorized representatives of the
Parties.
10.3 This Agreement is made in Chinese and English languages, with both language
versions having equal validity. Each language version shall be concluded in
two (2) originals and two (2) duplicates. Each Party shall retain one (1)
original and the duplicates shall be used for handling government
procedures arising from the transactions contemplated by this Agreement.
10.4 Any expenses relating to recordal of the change of shareholders in Xxxxxxxx
Xxxxxx shall be borne by Party B.
ASSIGNMENT AGREEMENT
IN WITNESS WHEREOF, this Agreement has been signed by the authorized
representatives of the Parties on the date first above written.
Assignor: Hathaway Corporation
Representative: /s/ Xxxxxxx X. Xxxxx
Title: /s/ President, Chief Executive Officer and Chief Financial
Officer
Assignee: Beijing Sifang Tongchuang Protection and Control Co., Ltd.
Representative: /s/ Xxxx Xxxxxx
Title: /s/ President
