Exhibit 4.12
(English Translation)
Ningbo Yuming Machinery Industrial Co., Ltd.
EQUITY INTEREST TRANSFER AGREEMENT
TRANSFEROR: Xx. Xxxx Qiuling
TRANSFEREE: Beston Asia Investment Ltd.
October 19, 2004
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This Agreement is entered into between the following Parties on
October 19, 2004 in Ningbo City, Zhejiang Province:
Transferor: Xx. Xxxx Qiuling
Address: Hsinchu City, Taiwan
Transferee: Beston Asia Investment Ltd.
Address: Akara bldg, 00 Xx Xxxxxx Xxxxxx, Xxxxxxxx Cay I, Road Town, Tortola,
British Virgin Islands
WHEREAS:
1. The Transferor owns 49% equity interest in Ningbo Yuming Machinery
Industrial Co., Ltd. ("Ningbo Yuming").
2. The Transferee is a limited liability company lawfully incorporated
and validly existing under the laws of the British Virgin Islands.
3. The Transferor has agreed to transfer 49% equity interest in Ningbo
Yuming owned by the Transferor to the Transferee, and the Transferee has agreed
to accept transfer of such equity interest, upon the terms of this Agreement.
After the transfer becomes effective, the Transferee shall own 100% equity
interest in Ningbo Yuming.
Therefore, the Parties agree, adhering to the principles of
faithfulness, equality and mutual benefit, through friendly consultations and in
accordance with the relevant laws and regulations of the People's Republic of
China, upon the following terms to be complied with.
ARTICLE 1 SUBJECT MATTER OF AGREEMENT
1.0 The subject matter of the agreed transfer under this Agreement is the 49%
equity interest in Ningbo Yuming owned by Xx. Xxxx Qiuling.
ARTICLE 2 SHARE OF EQUITY INTEREST TO BE TRANSFERRED
2.1 The share of equity interest to be transferred from the Transferor to the
Transferee shall be the 49% equity interest in Ningbo Yuming owned by the
Transferor. From the date on which the transfer becomes effective, the
Transferee shall enjoy the rights and bear the obligations in respect of
the transferred equity interest under the laws, and the Transferor shall
no longer enjoy the rights nor bear the obligations in respect of the
transferred equity interest.
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2.2 The original equity interest in Ningbo Yuming Machinery Industrial Co.,
Ltd. was allocated as follows:
Beston Asia Investment Ltd. 51%
Xx. Xxxx Qiuling 49%
The equity interest after completion of the equity interest transfer
hereunder shall be:
Beston Asia Investment Ltd. 100%
ARTICLE 3 PRICE FOR EQUITY INTEREST TRANSFER
3.1 The Transferee has agreed to accept transfer of the 49% equity interest in
Ningbo Yuming owned by the Transferor by payment in cash.
3.2 The Transferee shall pay a total amount of Renminbi 10,000,000 for
transfer of the above-mentioned equity interest.
ARTICLE 4 PAYMENT METHOD
4.1 As agreed between the Parties, the Transferee shall pay in cash for
transfer of the 49% equity interest in Ningbo Yuming owned by the
Transferor.
4.2 Prior to November 30, 2004, the Transferee shall pay to the Transferor the
total price for the equity interest transfer in the amount of Renminbi
10,000,000 or an equivalent in U.S. dollars by a lump sum payment. In case
the procedures for transfer of the equity interest are not completed
within fifteen days after payment, the Transferor shall return the payment
to the Transferee within seven days upon receipt of written notice from
the Transferee.
ARTICLE 5 REPRESENTATIONS AND WARRANTIES
Each Party represents and warrants to the other Party as follows:
5.1 Each Party has the full civil rights and civil capacity to execute this
Agreement, and the signatory of this Agreement is the legal representative
duly authorized by the Transferor (or the Transferee) who has the
authority to represent the Transferor (or the Transferee) to execute this
Agreement.
5.2 The Transferor warrants that the Transferor's ownership of the 49% equity
interest in Ningbo Yuming is in compliance with the laws of the People's
Republic of China and is lawful and valid, that the Transferor is the
lawful and actual owner of the 49% equity interest, that no third party's
interest, such as a lien or other encumbrance, has been created against
the transferred equity interest, and that there is no contradictory
rights, whether present or future, in the transferred equity interest.
5.3 The Transferor warrants that it has the power to possess, use, benefit
from and dispose of the equity interest referred to in Article 1 of this
Agreement under the laws of the
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People's Republic of China. All consents, permits, approvals,
registrations, exemptions and notices in relation to the equity interest
to be transferred have been obtained or completed.
5.4 The provisions in this Agreement represent the actual intentions of the
Parties and are binding upon the Parties.
5.5 The performance of this Agreement shall not violate the laws which the
Parties must abide by, and shall not be in breach of any agreement or
obligation to be complied with by the Parties.
5.6 On or after the execution of this Agreement, each Party shall provide the
other Party with the legally valid documents in relation to this equity
interest transfer, including, but not limited to, Shareholders'
Resolutions, Board Resolutions, Business Licenses, etc.
ARTICLE 6 THE RELEVANT OBLIGATIONS OF THE PARTIES
6.1 The Obligations of the Transferor
6.1.1 Complete the procedures for transfer of the equity interest in accordance
with Articles 3 and 4 of this Agreement.
6.1.2 Provide the Transferee with all documents in relation to transfer and
change of registration of the equity interest, and assist the Transferee
with the relevant procedures.
6.2 The Obligations of the Transferee
6.2.1 Deliver the approval documents of its Board of Directors to the Transferee
within 7 days from the date of execution of this Agreement.
6.2.2 Make payment on schedule in accordance with Article 5 of this Agreement.
6.2.3 Provide the Transferor with all documents in relation to transfer and
change of registration of the equity interest.
ARTICLE 7 LIABILITIES FOR BREACH
7.0 If any Party breaches this Agreement and, as a result, the other Party is
unable to perform or unable to fully perform this Agreement, the losses
caused thereby shall be borne by the defaulting Party. If both Parties
breach this Agreement, each Party shall bear the liabilities arising from
its own defaults.
ARTICLE 8 FORCE MAJEURE
8.1 Force Majeure shall mean an event that is beyond the control of, and
unforeseeable or unavoidable by, the Parties and that prevents any Party
from fully performing or partially performing this Agreement, such as
earthquake, extremely serious natural disaster, war and any event which is
generally accepted as `Force Majeure" in international practice.
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8.2 If an event of Force Majeure occurs, a Party's obligations affected by
such event shall be suspended during the period when the Force Majeure
occurs and shall be automatically extended for a period equal to such
suspension, and such Party shall not bear any liabilities for breach of
contract.
8.3 The Party claiming Force Majeure shall promptly notify the other Party in
writing upon occurrence of such event, and shall furnish sufficient proof
of the occurrence and duration of such Force Majeure within 30 days of
such occurrence issued by the Notary Office at the place where such event
occurs. The Party claiming Force Majeure shall make its best efforts to
minimize the effects of the Force Majeure.
8.4 If an event of Force Majeure occurs, the Parties shall promptly conduct
consultations to seek for a fair resolution and shall make their best
efforts to minimize the effects of Force Majeure.
ARTICLE 9 SETTLEMENT OF DISPUTES
9.0 Any dispute arising from or in relation to this Agreement shall be settled
through friendly consultations between the Parties. If no settlement can
be reached through consultations, either Party shall have the right to
take legal action at a court with jurisdiction.
ARTICLE 10 MISCELLANEOUS
10.1 This Agreement is executed in four copies, with one copy to be retained by
each Party, and one copy each to be retained by Ningbo Yuming and the
Administration for Industry and Commerce for filing.
10.2 This Agreement shall be made after it is signed and sealed by the legal
representatives (or authorized representatives) of the Parties, and shall
become effective from the date of approval by the competent authorities.
10.3 Any matters not covered under this Agreement shall be supplemented by
appendix.
Transferor: Transferee:
Xx. Xxxx Xxxxxxx Xxxxxx Asia Investment Ltd.
(Seal) (Seal)
Legal Representative/Authorized Legal Representative/Authorized
Representative: Representative:
(signed) (signed)
[Signature of Legal Representative] [Stamp and Signature of Authorized
Representative]
October 19, 2004
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