English Translation of Equity Transfer Agreement
Exhibit
10.1
English
Translation of
This
Equity Transfer Agreement (the “Agreement”) was
executed in Beijing on January 4, 2009 by the following parties:
MAGIC ERA
GROUP LIMITED, a limited partnership which was legally established and exists
under the British Virgin Islands law, with its principal business operation at
Palm Grove House, P.O. Box 438, Road Town, Tortola, British Virgin Islands (the
“Seller”);
and
Jinzhou
Halla Electrical Equipment Co. Ltd., a limited company which was established and
exists under the laws of the People’s Republic of China, with its principal
business operation at 00 Xxxx Xxxxxx, Xxxxxxx Xxxx, Xxxxx (the “Buyer”).
(The
above-mentioned Seller and Buyer are hereinafter collectively referred to as the
“Parties,” and
each as a “Party”)
Whereas:
A. Jinan
Worldwide Auto Accessory Limited is a limited company established and exists
under the laws of the People’s Republic of China with its principal business
operation at Xx. 0 Xxxxxxxxx Xxxx, Xxxxxxxx & Xxxxxxxxxxx Xxxx of Jinan (the
“Company”). Its
main business is the development and manufacture of valve and tappets;
and
B. The
Seller holds 35% equity interest of Yearcity Limited (“Year City”) which
holds 100% equity of the Company. Yearcity does not have any assets and business
operations other than 100% ownership of the Company; and
C. The
Seller desires to sell to the Buyer and the Buyer desires to buy from the Seller
the 35% equity interest of Yearcity subject to the terms and conditions of the
Agreement, whereby the Buyer will acquire the 35% equity interest of the Company
indirectly through the acquisition of the 35% interest of Yearcity;
and
D. On
January 4, 2009, the board of directors of Yearcity approved the sale of its 35%
equity interest by the Seller to the Buyer; and
E. On
January 4, 2009, the board of directors of the Buyer approved its purchase of
the 35% equity interest of Yearcity from the Seller and authorized Xxxxxxx Xxxx
to sign this Agreement; and
F. On
January 4, 2009, the board of directors of the Seller approved its sale of the
35% equity interest of Yearcity to the Buyer.
Therefore,
the Parties agree as follows:
Section
1. The Purchase and Sale of Equity Interest
Section
1.1. Purchase and Sale
The Buyer
hereby agrees to purchase from the Seller and the Seller hereby agrees to sell
to the Buyer 35% of equity interest in Yearcity held by the Seller (“the Transferred
Shares”) (such transaction is hereinafter referred to as the “Transaction”).
Section
1.2. The Purchase Price
The Buyer
shall pay a total cash consideration (the “Purchase Price”) of
XXX 00 million to the Seller.
If the
audited net income (including tax return, all references to “audited net income”
include tax return unless otherwise specified) of the Company for the 12 months
ended December 31, 2008 (the “2008 Audited Net
Income”) is between RMB 19.48 million and XXX 00.00 xxxxxxx (xxxxxxxxx
XXX 19.48 million and RMB 22.88 million), the Purchase Price will not be
adjusted. If the 2008 Audited Net Income is less than RMB 19.48 million, then
the Purchase Price will be reduced to an amount equal to the product of (i) XXX
00 million and (ii) the quotient of the 2008 Audited Net Income divided by RMB
19.48 million. If the 2008 Audited Net Income is more than RMB 22.88 million,
then the Purchase Price will be increased to an amount equal to the product of
(i) XXX 00 million and (ii) the quotient of the 2008 Audited Net Income divided
by RMB 22.88 million.
Section
1.3. The Payment Schedule
The Buyer
shall pay the Purchase Price to the Seller in US dollar before May 31, 2009,
based on the exchange rate for the conversion of RMB to U.S. dollar published by
the China People’s Bank on the payment date.
Section
1.4. The Payment Method
The
Parties agree that the Buyer shall pay the Purchase Price to the Seller at the
time and amount as specified in Section 1.3 above. Under the circumstances that
the Seller deems necessary, the Seller may request the Buyer to pay the Purchase
Price to its designated individual, corporation or other
organizations.
Section
2. The Effective Date and Closing
Section
2.1 Effective date
This
Agreement will become effective upon execution by the authorized representatives
of the Parties, that is, the Buyer shall obtain all of the Seller’s equity
ownership of the Company.
Section
2.2 Documents Must Be Delivered by the Seller Before the Execution of the
Agreement
|
a) board
resolutions of the Seller;
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b) copies
of the Seller’s qualification documents (the Business Registration
Certificate and the Commercial Registration Certificate);
and
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c) copies
of the ID or passport of the authorized representatives of the
Seller.
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Section
2.3. Documents Must Be Delivered by the Buyer before the Execution of the
Agreement
|
a) board
resolutions of the Buyer;
|
|
b) copies
of the Buyer’s qualification documents (the Business Registration
Certificate and the Commercial Registration Certificate);
and
|
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c) copies
of the ID or passport of the authorized representatives of the
Buyer
|
Section
2.4. Closing
The
closing of the transactions contemplated hereby shall take place on the date
hereof.
Section
3. Representations, Warranties and Covenants
Section
3.1 The Buyer and the Seller each represents and warrants to the other Party the
following:
A. It is
duly organized, validly and effectively existing under the laws of its place of
incorporation, and is in good standing;
B. It has
the requisite corporate power and authority to deliver and execute the Agreement
and perform its obligations thereunder;
C. It has
adopted all the necessary corporate actions to authorize it to execute the
agreement;
D. Upon
execution by the Parties’ authorized representatives, this Agreement will be
effective and legally binding on the Parties;
E. The
execution of the Agreement and performance of the obligations thereunder will
not conflict with, violate or contradict with its charter documents, any
applicable laws, regulations or government approvals or authorization, or any
agreements to which it is a party;
F. Such
Party is in compliance with the applicable laws and regulations and there are no
material lawsuits, arbitration, administrative penalty, bankruptcy,
restructuring, close down and any other legal proceedings that may affect the
execution and performance of this Agreement; and
G. All
the information provided by such Party in connection with this Transaction is
valid, accurate and complete, and not misleading in any aspect. All
representations and warranties made by such Party are valid, accurate and
complete in all material aspects as of the date of execution of the
Agreement.
Section
3.2. The Seller represents and warrants the following:
A. The
Seller has disclosed all important information about the Company in the
Company’s financial reports. If the Seller intentionally omitted any material
information that should have been disclosed, the Seller shall be liable to the
Buyer; and
B. After
the completion of the transfer of the Transferred Shares, the Seller shall
assist the Buyer in the transition of the Company and dealing with third parties
including the government and banks.
Section
3.3. The Buyer represents and warrants the following:
A. The
Buyer’s capital is legal;
B. The
Buyer shall develop the Company and its products based on the Company’s
long-term development; and
C. The
Buyer shall adjust the Company’s current management team based the Company’s
development needs.
Section
4. Confidentiality
Section
4.1 Confidentiality obligations
Except
disclosures as required by the applicable laws and regulations (including
disclosures as required by the rules of United States Securities and Exchange
Commission), each Party shall keep confidential the contents of this Agreement
and the Confidential Information of the Other Party, shall not use such
information for purposes other than for this Agreement, and shall not disclose
such information to any cooperative manufacturers.
Notwithstanding
the above, the Parties may disclose the contents of this Agreement and the other
Party’s Confidential Information to its employees, directors and professional
consultants, restricted to the reasonable needs to fulfill the purpose of this
Agreement. The Parties shall assure that such employees, directors and
professional consultants understand and comply with the confidentiality
obligation hereunder.
Section
4.2 Confidential information
For the
purpose of Section 4, a Party’s “Confidential Information” refers to such
Party’s business operation, business strategy, business plan, investment plans,
products, sales, customers, employees, marketing, technology, accounting or
other related aspects or anything related information, in oral or written, which
includes, but is not limited to, all reports and records and all copies
(electronic copies are included), copies, translations of such
information.
Section
4.3 Term of the confidentiality obligations
This
Section 4 survives the term of the Agreement indefinitely.
Section
5. Force
majeure
Section
5.1. “Force majeure”
refers to all events that are unforeseeable at the signing of the Agreement and
prevents the Party from carrying our all or partial of its obligations under the
Agreement after the signing of the Agreement, the occurrence and consequence of
which is unavoidable. Such events include earthquakes, typhoon,
flood, fire, war, domestic and international traffic trouble, government or
public actions, infectious diseases, civil unrest, strikes, and any other
unforeseeable, unavoidable situations.
Section
5.2 Postpone the Performance
If any
force majeure event
happens, the obligation of the affected Party should be postponed and
automatically extended and such Party will not be deemed as breaching the
Agreement.
Section
5.3 Notice of Force
Majeure
The Party
who claims Force
Majeure should notify the other Party in writing immediately and provide
sufficient evidence of the existence and continuance of the Force Majeure
event.
Section
5.4 Resolution
In the
event of Force Majeure,
both Parties should negotiate immediately for a fair resolution and try their
best to minimize the impact.
Section
6. Liability for breach of contract
Section
6.1 Any Party who breaches its representations, warranties, covenants and
obligations under the Agreement shall be liable for all the losses incurred by
the non-breaching Party resulting from such breach.
Section
7. Governing Law
Section
7.1 Governing Law
This
Agreement shall be governed by and construed in accordance with the laws of Hong
Kong.
Section
8. Dispute Resolution.
Section
8.1 Negotiation and Arbitration
If any
dispute arises between the Parties relating to this Agreement, they should
submit the dispute to China International Economic and Trade Arbitration
Commission in accordance with the then applicable arbitration rules. Mediation
or arbitration shall take place in Beijing. In the event of arbitration, the
Parties agree that the arbitration shall be final and binding to the Parties.
The Parties hereby agree that judgment on the arbitration award may be enforced
by any court with jurisdiction.
Section
8.2 Effect of Arbitration procedure
The
commencement of the arbitration procedures should NOT lead to the termination of
the Agreement. This Agreement shall have full legal effect until the arbitration
award is given.
Section
9. Reserved
Section
10. Fees and Expenses
Each
Party shall be responsible for its own expenses related to this
Agreement.
Section
11. Miscellaneous
Section
11.1 Non-waivers.
Failure
to exercise and or delay in exercising any right, remedy, power or privilege
shall be construed or deemed as a waiver of any underlying rights. Failure to
exercise or partial exercise of any right, remedy, power or privilege shall not
affect any future exercise of the right, remedy, power or
privilege.
Section
11.2 Amendments.
This
Agreement is entered into for the benefits of the Parties in the Agreement and
their lawful assignees. Any amendment of the Agreement should be made by the
written consent of both Parties.
Section
11.3 Severability.
The
invalidity or unenforceability of any provision of this Agreement shall not
affect the validity or enforceability of any other provision of the
Agreement.
Section
11.4 Counterparts.
Four
original copies of the Agreement should be signed in Chinese, with the Seller
and the Buyer holding two copies each.
Section
11.5 Entire Agreement.
This
Agreement embodies the entire agreement and understanding between the Parties
with respect to the subject matter hereof and supersedes all prior agreements
and understandings relating to such subject matter.
Section
11.6 Expenses, Fees and Taxes.
The
Parties agree that each Party shall be responsible for its own expenses, fees,
or taxes incident to the preparation, negotiation, subscription and delivery of
the Agreement.
Authorized
Representative (signature)
Jinzhou
Halla Electrical Equipment Co., Ltd.
Authorized
Representative: /s/
Xxxxxxx Xxxx
