Exhibit 4.1
Agreement of Transfer of Capital Contributions and Profit Sharing Right
This Agreement of Transfer of Capital Contributions and Profit Sharing Right
(the "Agreement") is made by and among:
Party A: China Tailong Holdings Company Limited
Address: Xxxx/XX 000 0/X Xxxx Xxxx Xxxx 000 Xxxxxx Xx, Xxxx Xxx Xxxx XX
Legal representative: Xx Xxxxx
Position: Board Chairman
Nationality: China
Party B: Xxxxx-Pacific Enterprises Ltd.
Address: Xxxxx000-00000 Xxxxxxxx, Xxx. Xxxxx Xxxxx, X.X. Xxxxxx X0X 0X0
Legal representative: Xxxxx Xxxxxx
Position: Board Chairman
Nationality: Canada
Party C: Beijing Taiming Applied Technology Institute
Address: Xx.00, Xxxxxxx Xxxx, Xxxxxxx Xxxxxxxx, Xxxxxxx, Xxxxx
Legal representative: Xxxx Xx
Position: Board Chairman
Nationality: China
Party D: Xxxxxx Xxxx Long Industrial Ltd.
Address: West side of Dalian Road, Jizhong District, Haping Road,
Development Zone, Harbin, China
Legal representative: Xx Xxxxx
Position: Board Chairman
Nationality: China
Whereas:
1. The PACIFIC DRAGON FERTILIZERS LTD., HARBIN (hereinafter referred as to
"Tailong Company") is a Chinese-Foreign contractual joint venture company
established under the Law of the People's Republic of China on Chinese-Foreign
Contractual Joint Venture, and its business scope includes research,
development, production, and distribution of fertilizers. Moreover, Tailong
Company holds the Business License for Enterprises as Legal Persons of PRC
(No.00059) issued by the State Administration for Industry and Commerce. And its
registered capital is RMB 4350,000 (USD500,000);
2. Party A is a limited company established under the Company Law of Hong Kong,
which is the transferee of capital contribution and profit sharing right in
Tailong Company;
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3. Party B is a limited company established under the Company Law of Canada,
which are both the foreign party and the transferor of capital contribution and
profit sharing right in Tailong Company;
4. Party C is a collectively owned corporation, which holds the Business License
for Enterprises as Legal Persons issued by the Administration for Industry and
Commerce of Fengtai District, Beijing, and its business scope covers fertilizers
productions, and whole set of technology equipment, biology engineering, refined
chemical productions, and new type of high-energy fuel and related equipments,
medical apparatus, development of optical engineering productions, transfer and
sale of technology. Further, it is Chinese party and transferor of capital
contribution and profit sharing right in Tailong Company;
5. Party D is a limited company established under the Company Law of China,
which holds the Business License for Enterprises as Legal Persons issued by the
Administration for Industry and Commerce of Harbin city, and its business scope
covers wholesale and retail of construction material, automobile parts,
mechanical equipments, and xxxxx. Further, it is Chinese party and transferor of
capital contribution and profit sharing right in Tailong Company;
6. Party B consents to transfer all its 30% capital contribution, i.e.
USD1,500,000 (equivalent to RMB 1,305,000) and 49% profit sharing right in
Tailong Company to Party A; Party C consents to transfer all its 27% capital
contribution, i.e. RMB 1160,000 and 10% profit sharing right in Tailong Company
to Party A; Party D consents to transfer 33% of its capital contribution, i.e.
RMB 1,435,500, and 31% of its profit sharing right in Tailong Company to Party
A; And Party A accepts the above transfer of capital contribution and profit
sharing rights in Tailong Company.
Therefore, in accordance with the Law of the People's Republic of China on
Chinese-Foreign Contractual Joint Venture and the Contract Law of PRC, this
Agreement is entered into by and among the Parties mentioned above:
Article 1. This Agreement is entered into in accordance with the Law of the
People's Republic of China on Chinese-Foreign Contractual Joint Venture and the
Contract Law of PRC.
Article 2. Party B consents to transfer all its 30% capital contribution, i.e.
USD1,500,000 (equivalent to RMB 1,305,000) and 49% profit sharing right in
Tailong Company to Party A; Party C consents to transfer all its 27% capital
contribution, i.e. RMB 1160,000 and 10% profit sharing right in Tailong Company
to Party A; Party D consents to transfer 33% of its capital contribution, i.e.
RMB 1,435,500, and 31% of its profit sharing right in Tailong Company to Party
A; And Party A accepts the above transfer of capital contribution and profit
sharing rights in Tailong Company. All other parties except for Party A forfeit
their rights of first refusal to purchase the above capital contribution and
profit sharing rights.
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Article 3. After these transfers, Party A owns 90% capital contribution and 90%
profit sharing right of Tailong Company, and Party D owns 10% capital
contribution and 10% profit sharing right of Tailong Company. Neither Party B
nor Party C has any capital contribution or interest in Tailong Company.
Article 4. Party A shall remit $50,000.00 (USD fifty thousand only), which is
the outstanding of Party B's capital contribution to Tailong Company, into
Tailong Company's account in 30 days after the transfer contemplated herein is
approved by the relevant examination and approval authority of China.
Since Party C's capital contribution to Tailong Company was a patent appraised
to be worth RMB1,160,000, after the transfer contemplated herein, Party C will
withdraw its patent. Accordingly, Party A shall contribute RMB 1,160, 000 to
Tailong Company's account within 30 days after the examination and approval
authority issued the approval documents concerning the transfer
Party A shall remit RMB 1,450,000.00, which is transfer price of the Party D's
capital contribution and profit sharing right in Tailong Company (33% and 31%
respectively), into Party D's bank account, in 30 days after the transfer is
approved by the examination and approval authority of China.
Article 5. Except as otherwise provided for in this Agreement, no Party shall
claim any right or interest against Tailong Company after this Agreement becomes
effective.
Article 6. After the Agreement becomes effective, Tailong Company's former Joint
Venture Contract and Articles of Association should be terminated immediately.
Party A and Party D shall draft a new joint venture contract and Articles of
Association.
Article 7. Both the Party A and Party D shall enjoy rights and perform duties as
prescribed by the Joint Venture Contract and Articles of Association after they
accept the transfers.
Article 8. Neither Party of this Agreement shall unilaterally modify or rescind
the Agreement. Failure to perform this Agreement by any Party shall constitute
breach of this Agreement. The Defaulting Party shall pay 10% of total transfer
price to the non-defaulting party as a penalty for breach of this Agreement, and
compensate the loss of non-defaulting party. Where a Party breaches this
Agreement, the other Party may terminate this Agreement without any liability,
or demand the Defaulting Party to continue performing this Agreement. Continuing
to perform this Agreement will not release the breaching Party's liability to
compensate for breaching this Agreement. Should both Parties breach the
Agreement, each shall bear its respective share of the responsibility for
breaching this Agreement.
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Article 9. All issues concerning the establishment and management of Tailong
Company in this Agreement shall be governed by the Law of the People's Republic
of China on Chinese-Foreign Contractual Joint Venture and relevant laws of the
PRC; the clauses concerning Party A and Party B shall be governed by general
international practices; the clauses concerning Parties A, C, and D shall be
governed by the Contract Law of PRC.
Article 10. During the term of this Agreement, if any disaster, such as
earthquake, flood and so on, or other relevant material accident occurs, which
may make the purpose of the Agreement impossible to be realized, then, the
Parties of this Agreement may delay or terminate to perform this Agreement on
the basis of the principles of equality and mutual benefit.
Article 11. In the event that any dispute arises out of, under or in connection
with this Agreement, it shall be first settled through negotiation among the
Parties. In the event that the Parties are unable to settle the dispute, the
Parties may enter into an arbitration agreement and submit the dispute to an
arbitration body or bring a lawsuit in a competent court.
Article 12. The issues that are not provided for in this Agreement may be
provided for in a supplemental agreement upon both Parties' agreement. Such
supplemental agreement shall be an integral part of this Agreement and of the
same legal force.
Article 13. This Agreement shall become effective upon execution by both Parties
and approval by government authority in charge of foreign investment. This
Agreement may be modified, rescinded, and terminated in advance on the basis of
the principles of equality and mutual benefit.
Article 14. This Agreement is written in both Chinese and English. Should any
provisions in this Agreement be susceptible to several interpretations, they
shall be interpreted in accordance with the Chinese version of this Agreement.
Article 15. This Agreement has four original copies, and each Party holds one of
them, the rest shall be sent to government authority in charge of foreign
investment to apply for the changes provided herein.
Article 16. This Agreement is signed on Xxxx 0, 0000 xx Xxxx Xxxx, Xxxxx.
Party A: China Tailong Holdings Company Limited
The authorized representative: /s/Xxxx Xxxx Yong
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Party B: Xxxxx-Pacific Enterprises Ltd.
The authorized representative: /s/Xxxxx Xxxxxx
Party C: Beijing Taiming Applied Technology Institute
The authorized representative:/s/ Xxxx Xx
Party D: Xxxxxx Xxxx Long Industrial Ltd.
The authorized representative: /s/ Xxxxx Xx
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