Exhibit 10.40
Share Transfer Agreement
This Share Transfer Agreement (hereinafter referred to as "This
Agreement") is made on December 31 , 2005 in Tai'an City, Shandong Province, the
People's Republic of China (hereinafter referred to as "PRC")
BETWEEN:
THE ASSIGNOR: Singapore Eastern Nanomaterials Holdings Pte (hereinafter
referred to as the "Party A"), is legally registered under the laws of Singapore
Registered office: Singapore
Legal Person: Chen Xiangzhi
AND
THE ASSIGNEE: Xxxxx Xxxxx Limited (hereinafter referred to as "Party B"),
is registered under the laws of British Virgin Islands.
Registered office: British Virgin Islands
Authorized representative: Zhang Xueyi
WHEREAS:
1. Shandong Haize Nanomaterials Co., Ltd (hereinafter referred to as
"Haize Nanomaterials") is a company duly organized, validly existing and in good
standing as a wholly foreign funded enterprise under the laws of the P.R.C, with
its registered office at Tai'an Youth Development Zone, registered capital RMB
46,530,000 yuan.
2. Party A legally owned 100% registered capital of Haize Nanomaterials,
that is RMB 46,530,000 yuan.
3. Party A intends to transfer the 100% registered capital of Haize
Nanomaterials owned by Party A to Party B. ("Share transfer" the 100% registered
capital of Haize Nanomaterials and all relevant rights, interests and
obligations). Party B intends to accept the shares. After the completion date of
the shares transfer, Party B will possess the 100% registered capital of Haize
Nanomaterials.
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4. Through friendly consultation, both parties jointly agreed to cooperate
and promote the sale and purchase of shares smoothly.
Regarding the sale and purchase of shares, both Party A and Party B enjoy
the rights and assume the obligations thereunder, and enter into the agreement
as follows:
Article 1 Shares Transfer
1. According to provisions of this Agreement, Party A agrees to
transfer the shares owned by Party A to Party B after the completion
date of the shares transfer.
2. Party B agrees to accept the shares transferred by Party A according
to the stipulations of this Agreement.
3. Upon the Agreement becoming effective, Party B would be entitled to
exercise the rights of the shareholders as well as take full
obligations. Party A shall not enjoy any rights and assume any
obligations and responsibilities relating to the transferred shares,
unless this Agreement otherwise stipulates.
Article 2 Price of the Shares and Payment Terms
1. Party A and Party B jointly confirm that Party B accepts the
consideration of transferred shares in This Agreement, and Party B
pays Party A in cash. The consideration of transferred shares is USD
5,765,200 after consultation between Party A and Party B.
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2. After the completion date of shares transfer, Party B invests RMB
46,530,000 yuan, and will possess 100% registered capital of Haize
Nanomaterials. Party A will not own any shares of Haize
Nanomaterials.
3. Party A and Party B jointly agree that Party B shall pay in full
within [30] days to Party B after the completion date of shares
transfer.
Article 3 Representations, Warranties and Undertakings of Party A Party A hereby
represents warrants and undertakes that:
1. Party A has full power and authority to enter into this Agreement
and perform all rights and obligations to this Agreement, and this
Agreement constitutes valid and binding obligations on it.
2. Party A represents and warrants to Party B that it legally owns the
Transferred Shares, as w ell as the right to deal with all or any
part of the shares entirely and effectively; and that prior to any
transfer it will obtain all necessary consents such that the Shares
can be transferred to Party B at the effective time of the transfer,
free and clear of all liens and encumbrances whatsoever.
3. There are no original meaning changes of this Agreement regarding
Haize Nanomaterials which will effect the signing of this Agreement
that will not disclose to Party B.
4. Party A shall deal with other matters that this Agreement has not
stipulated according to the laws and regulations of Singapore and
the P.R.C along with Party B.
Article 4 Representations, Warranties and Undertakings of Party B Party B hereby
represents, warrants and undertakes that:
1. Party B has full power and authority to enter into this Agreement
and perform all rights and obligations to this Agreement, and this
Agreement constitutes valid and binding obligations on it.
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2. Party B agrees that he shall pay the consideration of the
transferred shares to Party A in full on time.
3. Party B shall deal with other matters that this Agreement has not
stipulated according to the laws and regulations of the P.R.C along
with Party A.
Article 5 the Completion Date of Shares Transfer
The shares transfer should be completed on the date that all following terms and
conditions fulfilled. The date is the completion date.
1. This Agreement is signed by the authorized representatives of Party
A and Party B.
2. The Shares transfer of this Agreement is approved by the
Shareholders meeting and Board of directors of Party A.
3. This Agreement is approved the authority of Haize Nanomaterials, the
contents shall include:
(1) The approval to this agreement and relevant matters;
(2) Fully authorize and let the General Manager of Haize
Nanomaterials handle the shares transfer matters and apply to
relevant Administration for Industry and Commerce, Foreign
Investment Administration.
4. The shares transfer to this Agreement has been approved by Foreign
Investment Administration and finished the change of Industrial and
Commercial Registration.
Article 6 Confidentiality
No party herein shall disclose to any third party any information included in
the Agreement. In case any information is released and results in damages to the
benefits of the Company or the other party, the party whose confidentiality is
breached has the right to terminate the Agreement, as well as to compensation
due to the breach of the confidentiality obligation.
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Article 7 Miscellaneous
Both Parties mutually agree that anything not covered in this Agreement will be
friendly discussed separately by both parties, and supplemental agreements shall
be established before the completion date of shares transfer. Supplemental
agreements shall be inseparate parts of this Agreement.
Article 8 Liabilities for Breach of this Agreement
Should either Party A or Party B breach any clause, or break any representation,
warranty or undertaking made in this Agreement, the party in breach shall
compensate the observant party for all the losses, including but not being
limited to the fees paid, or the expenses spent by the observant party as a
direct or indirect result of the breach of this agreement by the party in breach
(including but not being limited to reasonable court fees, arbitration fees and
attorney fees etc paid by the other party).
Article 9 Settlement of Disputes
1. Any disputes arising from the execution of, or in connection with this
Agreement shall be settled through friendly negotiation between both parties
hereto. In case no settlement to disputes can be reached through friendly
negotiation, the disputes shall be submitted to the Arbitration.
2. Any disputes arising from the execution of,or in connection with this
Agreement shall be submitted to the China International Economic and Trade
Arbitration Commission for arbitration in accordance with the Arbitration Rules
and the Procedures for the said Commission. The arbitral award is final and
binding upon both parties. Arbitration location is Beijing.
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3. If any clause of this Agreement is invalid according to arbitration, it
shall in no manner affect performance of other clauses of this Agreement.
Article 10 Applicable Law
The formation, validity, interpretation, execution and settlement of
disputes in respect of this Agreement shall be governed by the relevant laws of
the PRC.
Article 11 Rights
Not being agreed by the other party in writing, any party should not
transfer the rights enjoyed according to this Agreement. Each party's
successors, authorized assignees are bound to this Agreement.
Article 12 Force Majeure
1. Force majeure means any unforeseeable events beyond the parties' control
which prevent the performance of any obligation under this Agreement. Force
majeure includes, but is not limited to, earthquake, typhoon, flood, war, acts
of Gods, strike, riots etc(pound)(R)
2. Should either of the parties to this Agreement be prevented from executing
the Agreement by Force majeure, the prevented party shall notify the other party
by telegram without any delay, and within 15 days thereafter provide detailed
information of the events and a valid document for evidence issued by the
relevant public notary organization explaining the reason of its inability to
execute or delay the execution of all or part of the Agreement. Both parties
shall, through consultations, decide whether to terminate the contract or to
exempt part of the obligations for implementation of the contract or whether to
delay the execution of the contract according to the effects of the events on
the performance of the contract.
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Article 13 Text
This Agreement is made in sextuplicate in Chinese, and each Party shall
keep two copies. The other two copies are for handling approval and change of
Industrial and Commercial Registration.
Every original copy is equally valid. This Agreement becomes effective
from the date that Party A and Party B signed and relevant Authorities approved
this Agreement.
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Party A: Eastern Nanomaterials Holdings Pte Ltd
Authorized Representative: /s/ Xxxxxxxx Xxxx
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Party B: Xxxxx Xxxxx Limited
Authorized Representative: /s/ Zhang Xueyi
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