EXHIBIT 10.3
Supplemental Agreement
DATED THE 27TH DAY OF JANUARY 2004
XXXX XXX ENVIRONMENTAL PROTECTION
SCIENCE AND TECHNOLOGY LIMITED
and
GOOD VIEW BUS MANUFACTURING (HOLDINGS) COMPANY LIMITED
and
EAGLE BUS DEVELOPMENT LIMITED
and
KOK SIN KEUNG
and
XXXXXX PO YIN
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SUPPLEMENTAL AGREEMENT FOR THE
SALE AND PURCHASE OF SHARES IN
GUANGZHOU CITY VIEW BUS INSTALLATION CO., LTD.
--------------------------------------------------------
XXXX & PARTNERS
SOLICITORS
10th Floor
Chiyu Bank Xxxxxxxx
00 Xxx Xxxxx Xxxx Xxxxxxx
Xxxx Xxxx
TEL: (000) 0000 0000
FAX: (000) 0000 0000
REF: 01/01/7203/01
(EY/jl)
THIS AGREEMENT is made the 27th day of January, Two Thousand and Four.
BETWEEN:-
1. XXXX XXX ENVIRONMENTAL PROTECTION SCIENCE AND TECHNOLOGY LIMITED, a
company incorporated in Hong Kong, whose registered office is situated at
Xxxx 000, 0xx Xxxxx, Xxxxxxx Xxxxx, 00 Xxxxx Xxxx, Xxxxxxx, Xxxx Xxxx (the
"PURCHASER").
2. GOOD VIEW BUS MANUFACTURING (HOLDINGS) COMPANY LIMITED, a company
incorporated in Hong Kong, whose registered office is situated at Flat C,
14th Floor, Block 3, Sheung Shui Centre, 3 Xxx Xxxxxx Road, Sheung Shui,
New Territories, Hong Kong (the "CO 1").
3. EAGLE BUS DEVELOPMENT LIMITED, a company incorporated in Hong Kong, whose
registered office is situated at Flat C, 14th Floor, Block 3, Sheung Shui
Centre, 3 Xxx Xxxxxx Road, Sheung Shui, New Territories, Hong Kong (the
"CO 2").
4. KOK SIN KEUNG, holder of Hong Kong Identity Card No.X000000(0) of No,15
1st Street River North, Fairview Park, Xxxx Xxxx, New Territories, Hong
Kong ("KOK")
5. XXXXXX PO YIN, holder of Hong Kong Identity Card No.X000000(0) of Flat 2,
11th Floor, Xxxxx Xxxx House, Tin Xxxxx Court, Tin Shui Wai, New
Territories, Hong Kong ("Xxxxxx").
WHEREAS:-
(A) GUANGZHOU CITY VIEW BUS INSTALLATION CO., LTD. is a private enterprises
incorporated in the People's Republic of China with registered number
0120823, whose registered office is situated at Xxxxx 000, 000 Xxxx Xxx Xx
Xxxx, Xxxxxxxxx, Xxxxx,xxx has at the date hereof an authorized capital of
US$1,471,000.00 (the "COMPANY").
(B) 23.8% of the Company capital is owned by CO 1 and 66% of the Company
capital is owned by CO 2.
(C) CO1 is a limited company with an authorised 10,000 fully paid-up shares of
HK$1.00 each whereby 4,000 shares are held by Kok and 6,000 shares are
held by Xxxxxx (collectively the "CO1 SHAREHOLDERS").
(D) CO2 is a limited company with an authorised 1,200,000 fully paid-up shares
of HK$1.00 each whereby 400,000 shares are held by Kok and 800,000 shares
are held by Xxxxxx (collectively the "CO2 SHAREHOLDERS").
(E) The Purchaser, CO1, CO2 and Kok have entered into an agreement on 13th
March 2003 for the sale and purchase of 23.8% ownership of the Company
owned by the CO 1 and 66% ownership of the Company owned by CO 2 to the
Purchaser for the consideration and on the terms and conditions therein
("the Agreement").
(F) The said sale and purchase is subject to approvals from the PRC authority
which has not been obtained.
(G) The parties have agreed to enter into this Supplemental Agreement to amend
and supplement the Agreement on the terms and conditions as set out herein
(H) The Vendor will retain the ownership of all the Excluded Assets after
Completion.
NOW IT IS HEREBY AGREED AND DECLARED AS FOLLOWS :-
1. INTERPRETATION
In this Agreement, words and expressions shall bear the same meaning as
defined in Clause 1 of the Agreement unless the context otherwise
requires.
2. CONDITION PRECEDENT
2.1 The parties acknowledge that the intended sale and purchase does not
require approval from the PRC authorities but it is a condition precedent
that a PRC legal opinion is delivered to the Purchaser prior to Completion
to certify that that CO1 and CO 2, being the shareholders of the Company,
are free to sell their respective shares.
2.2 The CO1 Shareholders and CO2 Shareholders hereby personally undertake to
execute a Deed of Undertaking in a form to be provided by the Purchaser,
to undertake that each of them shall be jointly and severally be fully
responsible and fully discharge all existing debts, liabilities of CO1 and
CO2 and whatsoever amount due from CO1 and CO2 respectively to any third
parties, including any directors' and/or shareholders' loans, up to and
including the Completion Date.
3. SALE AND PURCHASE OF -9,999- SHARES OF CO1
The Purchaser shall purchase and the CO1 Shareholders shall sell, -9,999-
shares of the authorised share capital of CO1 free from all charges,
mortgages, equities, liens, hypothecation, incumbrances, and any other
adverse claims and interests with all the right to all dividends hereafter
paid declared or made in respect thereof.
4. SALE AND PURCHASE OF -1,199,999- SHARES OF CO2
The Purchaser shall purchase and the CO2 Shareholders shall sell,
-1,199,999- shares of the authorised share capital of CO2 free from all
charges, mortgages, equities, liens, hypothecation, incumbrances, and any
other adverse claims and interests with all the right to all dividends
hereafter paid declared or made in respect thereof.
5. CONSIDERATION
The consideration for the purchase of entire share capital of CO1 and CO2
shall be in the following order:-
(i) Renminbi (RMB) 8,000,000.00 will be paid in cash upon Completion as
follows:-
CO1 Shareholders - XXX 0,000,000.00
XX0 Xxxxxxxxxxxx - XXX 6,000,000.00
(ii) 43% of all issued and outstanding shares of the Purchaser to Kok.
6. TIME TO BE OF ESSENCE
Time in every respect shall be of essence of this Agreement.
7. COMPLETION
7.1 Subject as hereinafter provided completion shall take place at the Hong
Kong Special Administrative Region on a date to be agreed between the
parties herto ("COMPLETION DATE") between the hours of 9:00 a.m. to 5.00
p.m. or at such other place and between such other hours as may be agreed
between the parties hereto.
7.2 On Completion the CO1 Shareholders and CO2 Shareholders shall respectively
deliver and produce to the Purchaser :-
(a) duly executed documents to effect the transfer of shareholding in
favour of the Purchaser and such person(s) as the Purchaser may
direct or nominate;
(b) such waivers and/or consents and/or resolutions (whether members' or
directors') as the Purchaser may require duly signed by members
and/or directors;
(c) such any documents of CO1 and CO2 as the Purchaser may require to
enable the Purchaser and/or its representative or nominee to be
registered as holders of the CO1 and CO2;
(d) written resolutions of the members and/or of the directors of CO1
and CO2 (as the Purchaser may require) approving and/or ratifying
the entering into of this Agreement and the due performance thereof;
(e) such written evidence as may be reasonably satisfactory to the
Purchaser to prove that the directors of CO1 and CO2 have, before
the signing of this Agreement duly made, and will, before and on
completion, duly make full disclosure of their respective interests
in, of or in relation to this Agreement or the transaction herein
contemplated pursuant to the Law, the Articles of Association of CO1
and CO2, and otherwise;
(f) the originals as well as duly certified copies of the board
resolutions of the then existing directors :-
(i) revoking all existing authorities in respect of foreign
investors to bankers in respect of the operation of its bank
accounts and giving authority in favour of such persons as the
Purchaser may nominate to operate such accounts;
(ii) appointing LUAN Yundong or such persons (within the maximum
number permitted by the Articles of Association) as the
Purchaser may nominate as directors; and
(iii) approving the registration of the said share transfers subject
to the same being duly stamped;
(g) the Existing Management Accounts which must show full compliance
with the terms and conditions of this Agreement;
(h) the statutory books of CO1 and CO2 which must be duly completed and
written up to date;
(i) all books, accounts, papers and records of CO1 and CO2;
(j) the written resignations of Xxxxxx as the director of CO1 and CO2
with acknowledgements signed by her in a form annexed as APPENDIX 1
to the effect that she has no claim against the CO1 and CO2 for
compensation for loss of office, fees or disbursements or otherwise
whatsoever;
(k) the written resignations of the then existing Secretary of CO1 and
CO2 if any to take effect on the date of completion with
acknowledgements signed by each of them in a form annexed hereto as
APPENDIX 1 to the effect that they have no claim against CO1 and CO2
for compensation for loss of office, fees or disbursements or
otherwise whatsoever; and
8. PROPER LAW
This Agreement for all purposes shall be governed by and construed in
accordance with the laws of Hong Kong.
9. SEVERABILITY
Any part of this Agreement which may be held illegal, invalid or
unenforceable shall be deemed to be severed from this Agreement and does
not affect the legality, validity or enforceability of the rest of this
Agreement.
10. FURTHER ASSURANCE
Each party hereto shall execute and perform, or procure the execution and
performance of, such further documents and acts as may from time to time
be required to make this Agreement fully and legally effective, binding
and enforceable, or to perfect the intention of the parties hereto.
11. NO WAIVER
No failure by any party hereto to insist upon the strict performance of
any term or condition of this Agreement or to exercise any right or remedy
consequent upon the breach thereof shall constitute a waiver of such
breach or any subsequent breach of such term and condition of this
Agreement. A breach, default, alteration or modification under or of this
Agreement shall only be waived or effected in writing by the party against
whom such alleged waiver, alteration or modification is sought to be
enforced.
12. CUMULATIVE RIGHTS
All rights and remedies of the parties hereto under this Agreement are in
addition to and without prejudice to each other and to all other rights
and remedies available to them under any statute, at law or in equity.
13. CONFIDENTIALITY
Each of parties hereto undertake to each other that they will not at any
time hereafter use or divulge or communicate to any person other than to
their respective officers or employees or solicitors/accountants whose
province it is to know the same or on the instructions of the board of
directors of CO1 and CO2 any confidential information concerning the
business, accounts, finance or contractual arrangement or other dealings,
transactions or affairs of CO1 and CO2 which may come to their knowledge
and they shall use their best endeavors to prevent the publication or
disclosure of any confidential information concerning such matters.
14. SURVIVAL OF THE PROVISIONS OF THIS AGREEMENT
All provisions of this Agreement shall, so far as they are capable of
being performed or observed, continue in full force and effect
notwithstanding completion except in respect of those matters then already
performed or observed.
15. ASSIGNABILITY
This Agreement is personal to the parties hereto, and accordingly, unless
the parties hereto shall otherwise agree in writing, none of the benefits
or rights hereunder may be assigned.
16. COSTS AND EXPENSES
16.1 Each party shall bear its own costs and expenses in connection with this
Agreement and the transactions contemplated hereby except as otherwise
provided herein.
16.2 All stamp duty and additional stamp duty chargeable on the instruments of
transfer and contract notes mentioned in Clause 6 shall be borne by the
Purchaser.
17. NOTICES
Any notice required to be given hereunder may, without prejudice to other
means of service, be given by telex or facsimile transmission or by
sending the same through the post via pre-paid envelope (airmail in the
case of an overseas address) addressed to the party concerned at his
address above stated or any other address notified (and expressed to be so
notified) to the other parties for the purposes of this Clause and any
notice so given shall be deemed to have been served on the second (2nd)
day after the day on which it is posted in the case of local mail or on
the day of transmission if given by telex or facsimile transmission and on
the fifth (5th) day after the day on which it is posted in the case of
airmail. In proving service by mail it will be sufficient to prove that
the envelope containing the notice was duly stamped, addressed and posted
as aforesaid.
18. INDEPENDENT LEGAL ADVICE
All parties expressly acknowledge that Messrs. Xxxx & Partners is acting
for the Purchaser only. All parties, except the Purchaser has been fully
advised to seek independent legal advice and to seek independent
professional advice to verify all matters set out in this Agreement.
19. INTERPRETATION AND CONSTRUCTION
19.1 The Schedules and Annexures (if any) hereto form part of this Agreement
and shall have the same force and effect as if expressly set out in the
body of this Agreement and any reference to this Agreement shall include
the Schedules and Annexures hereto and any variation or supplement hereof.
19.2 Unless the context otherwise requires, in this Agreement :-
(a) reference to any legislation or subordinate legislation shall
include any legislation or subordinate legislation which amends or
replaces it;
(b) a body corporate shall be deemed to be associated with another body
corporate if it is a holding company or a subsidiary of that other
body corporate or a subsidiary of a holding company of that other
body corporate; and
(c) words importing the singular number shall include the plural number
and vice versa and words importing one gender shall include every
other gender.
19.3 References to Recitals, Clauses, Schedules and Appendixes are to Recitals,
Clauses, Schedules and Appendixes of this Agreement.
19.4 Headings and the index or table of contents are for convenience only and
shall not affect the interpretation or construction of this Agreement in
any way.
19.5 In construing this Agreement:-
(a) the rule known as the ejusdem generis rule shall not apply and
accordingly general words introduced by the word "other" shall not
be given a restrictive meaning by reason of the fact that they are
preceded by words indicating a particular class of acts, matters or
things; and
(b) general words shall not be given a restrictive meaning by reason of
the fact that they are followed by particular examples intended to
be embraced by the general words.
19.6 If any of the date or dates stipulated for payment herein or if the
Completion Date shall otherwise fall on a day which is not a business day
(defined as a day on which licensed banks are opened for business in Hong
Kong) or shall fall on a day on which typhoon signal No.8 or above or
Black rainstorm signal is hoisted in Hong Kong at any time during business
hours such date or dates for payment or the Completion Date (as the case
may be) shall automatically be postponed to the next business day.
19.7 The expression "the Purchaser" wherever used shall (if the context so
permits or requires) in the case of individuals include the persons
specifically named and their executors and administrators and in the case
of a company or corporation include the company or corporation
specifically named and its successors and in the case of persons holding
as tenants in common include the persons specifically named and any of
them and their respective executors and administrators and in the case of
the persons holding as joint tenants include the persons specifically
named and the survivors or survivor of them and the executors and
administrators of such survivor.
APPENDIX 1
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RESIGNATION AS DIRECTOR
-----------------------
Date:
To: The Directors
[GOOD VIEW BUS MANUFACTURING (HOLDINGS) COMPANY LIMITED / EAGLE BUS
DEVELOPMENT LIMITED]
I hereby resign with effect from the date hereof as a director of [[GOOD VIEW
BUS MANUFACTURING (HOLDINGS) COMPANY LIMITED / EAGLE BUS DEVELOPMENT LIMITED]
(the "Company") and confirm that:
1. I have no claim outstanding against the Company, whether for compensation
for loss of office or otherwise howsoever; and
2. there is no agreement or arrangement outstanding under which the Company
has or could have any obligation to me.
SIGNED BY XXXXXX PO YIN )
(Holder of Hong Kong Identity Card )
No.X000000(0) in the presence of :- )
********************************************************************************
RESIGNATION AS SECRETARY
------------------------
Date:
To : The Directors
[GOOD VIEW BUS MANUFACTURING (HOLDINGS) COMPANY LIMITED / EAGLE BUS
DEVELOPMENT LIMITED]
I /We hereby resign with effect from the date hereof as a Secretary of [[GOOD
VIEW BUS MANUFACTURING (HOLDINGS) COMPANY LIMITED / EAGLE BUS DEVELOPMENT
LIMITED] (the "Company") and confirm that:
1. I / We have no claim outstanding against the Company, whether for
compensation for loss of office or otherwise howsoever; and
2. there is no agreement or arrangement outstanding under which the Company
has or could have any obligation to me us.
SIGNED By )
/s/ )
in the presence of: )
As witness the hands of the parties hereto the day and year first above written.
SIGNED BY XXXX XXX ENVIRONMENTAL )
PROTECTION SCIENCE AND TECHNOLOGY )
LIMITED by its director )
/s/ )
(Holder of )
No. ) in the presence of :- )
SIGNED BY GOOD VIEW BUS )
MANUFACTURING (HOLDINGS) COMPANY )
LIMITED by its director, KOK SIN KEUNG )
(Holder of Hong Kong Identity Card )
No.X000000(0)) in the presence of :- )
/s/
SIGNED BY EAGLE BUS DEVELOPMENT )
LIMITED by its director, KOK SIN KEUNG )
(Holder of Hong Kong Identity Card )
No.X000000(0)) in the presence of :- )
/s/
SIGNED BY KOK SIN KEUNG )
(Holder of Hong Kong Identity Card )
No.X000000(0)) in the presence of :- )
/s/
SIGNED BY XXXXXX PO YIN )
(Holder of Hong Kong Identity Card )
No.X000000(0) in the presence of :- )
/s/
RECEIVED on or before the day and )
year first above written of and ) RMB 8,000,000.00
from the Purchaser the )
Consideration in the sum of )
RMB8,000,000.00 above-mentioned.
SIGNED BY KOK SIN KEUNG )
(Holder of Hong Kong Identity Card )
No.X000000(0)) in the presence of :- )
SIGNED BY XXXXXX PO YIN )
(Holder of Hong Kong Identity Card )
No. X000000(0) in the presence of :- )
