Exhibit 10.5
Dated this 18th day of August 2006
WUXI HUAY1 INVESTMENT COMPANY LIMITED
AND
FIRST SPACE HOLDINGS LIMITED
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EQUITY TRANSFER AGREEMENT
FOR
51% OF THE REGISTERED CAPITAL OF
WUXI SEAMLESS OIL PIPE CO., LTD.
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TABLE OF CONTENTS
CLAUSE HEADING PAGE NUMBER
------ ------- -----------
1. INTERPRETAT1ON .......................................................1
2. TRANSFER OF EQUITY INTEREST ..........................................2
3. TRANSFER PRICE .......................................................2
4. CONDITIONS PRECEDENT .................................................2
5. LIABILITY PRIOR TO CLOSING ...........................................2
6. CLOSING ..............................................................2
7. REPRESENTATIONS, UNDERTAKINGS AND WARRANTIES .........................2
8. NON-COMPETITION ......................................................2
9. CONFIDENTIALITY ......................................................2
10 INDEMNITIES ..........................................................2
11. DISPUTE RESOLUTION ...................................................2
12. GOVERNING LAW ........................................................2
13. NOTICES ..............................................................2
14. ENTIRE AGREEMENT .....................................................2
15. NO ASSIGNMENT ........................................................2
16. WAIVER ...............................................................2
17. SEVERABILITY .........................................................2
18. MISCELLANEOUS ........................................................2
SCHEDULE 1 ...................................................................2
SCHEDULE 2 ...................................................................2
SCHEDULE 3 ...................................................................2
SCHEDULE 4 ...................................................................2
SCHEDULE 5 ...................................................................2
EQUITY TRANSFER AGREEMENT
THIS EQUITY TRANSFER AGREEMENT is made on Aug. 18th, 2006 between:
(1) WUXI HUAYI INVESTMENT COMPANY LIMITED ("SELLER"), a corporation duly
incorporated and validly existing pursuant to the laws of the People's
Republic of China, with its registered address at ▇▇▇▇ ▇▇▇; ▇▇.▇, ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ (▇.), ▇▇▇▇, ▇▇▇▇▇▇'▇ ▇▇▇▇▇▇▇▇ of China.
Legal representative: PIAO Longhua
Title; chairman of the board or directors
Nationality: Chinese
and
(2) FIRST SPACE HOLDINGS LIMITED. (the "BUYER"), a company incorporated under
the laws of British Virgin Islands whose registered office is at
Authorised representative : ▇▇▇▇▇ ▇▇▇▇▇ bin Harun
Title : Director
Nationality : Malaysian
(The Seller and the Buyer are referred to collectively as "PARTIES" and
individually a "PARTY".)
WHEREAS:
(A) Wuxi Seamless Oil Pipe Co., Ltd. (the "JV COMPANY") is a sino-foregin
equity joint venture company duly established and validly existing under
the laws of the PRC. The particulars of the JV Company are set forth in
Schedule 1 of this agreement.
(B) Wuxi Huayi Investment Co., Ltd ("WUXI HUAYI") owns 49% of the registered
capital of the JV Company. The Seller owns 51% of the registered capital
of the JV Company ("EQUITY INTEREST") and is the sole legal and beneficial
owner of the Equity Interest as well as all the rights, interests and
benefits attached thereto. The registered capital of the JV Company has
been paid-up in full.
(C) The Seller desires to transfer in accordance with the terms and conditions
contain hereof and the Buyer, relying on the representations, warranties
and undertakings made by the Seller and the terms and conditions contained
hereof, desires to acquire the entire Equity Interest in the JV Company
and all the rights, interests and benefits attached thereto.
IT IS HEREBY AGREED as follows:
1. INTERPRETATION
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1.1 In this Agreement, the following words and expressions shall have the
following meanings
"ENCUMBRANCES" means any rights or interests (including,
without prejudice to the generality of the
foregoing, any right to purchase, option or
pre-emptive right) or any mortgage, charge,
pledge, lien, taxation, duty, assignment,
pawn, security interest, reserved right or
any other security agreement or arrangement
or any other security agreement or
arrangement or any obligation.
"AGREED FORM" means, in relation to any document, the form
agreed between the Parties and for the
purpose of identification only initialled by
or on behalf of the Parties.
"NEW ARTICLES" means the new article of association of the
JV Company to be signed by Buyer to reflect
the change of ownership of the
"JV CONTRACT" means the Equity JV Company Contract in
connection with the JV Company entered into
between the Seller and Wuxi Huayi on 20th
August 2005.
"BUSINESS DAY" means a day other than a Saturday or Sunday
or Hong Kong's statutory holidays on which
bank are open for business in Hong Kong.
"CLOSING" means the completion of the transfer of the
Equity Interest in accordance with CLAUSE 6.2
hereof.
"CLOSING DATE" means the date of the completion of the
transfer of the Equity Interest in accordance
with CLAUSE 6.1 hereof.
"HONG KONG" means Hong Kong Special Administrative
Region of the People's Republic of China.
"PRC" means the People's Republic of the China, for
the purpose of this Agreement, excluding Hong
Kong. Macao Special Administrative Region and
Taiwan.
"YEAR" means a calendar year.
"TRANSFER PRICE" means the transfer price to be paid to Seller
by Buyer to purchases the Equity Interest
pursuant to the terms and conditions hereof,
particulars of which are set forth in CLAUSE
3 of this Agreement.
"SHAREHOLDER'S LOAN" means the shareholder's loan amounted to
US$53,300,000 provided by the Seller to the
JV Company.
"EVALUATION REPORT" means, in respect of the JV Company, the
valid evaluation report in respect of the
value of the equity interests of the JV
Company as of 31 March, 2006 issued by Wuxi
Dazhong Accounting Company Limited.
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"REFERENCE DATE" means, in respect of this Agreement, 31
March, 2006.
"RMB" means the legal currency of the PRC.
"US$" means the legal currency of the United States
of America.
"COMMERECE DEPARTMENT" means the Department of Foreign Trade &
Economic Corporation of Jiangsu Province or
any lower local commerce department
authorized by it, or any other government
authority in PRC competent in examining and
approving the transfer of the Equity
Interest.
"APPROVAL LETTER" means the approval letter issued by the
Commerce Department approving the transfer of
the Equity Interest from the Seller to the
Buyer.
"APPROVAL CERTIFICATE" means "Approval Certificate of Foregin
Invested Enterprise" issued to the JV Company
by the Commerce Department evidencing that
the said Equity Interest has been transferred
to the Buyer.
"BOARD" means, in respect of the JV Company, the
board of directors existing on the date of
this Agreement.
"AFFILIATE" means, in relation to any person, any company
or legal entity directly or indirectly owns,
legally and benefically, at least 30% the
interests, and/or the optional right of
purchase of the equity and/or shares of the
said person; or any company or legal entity
directly or indirectly owns, legally and
beneficially, at least 30% the interests
and/or the optional right of purchase of the
equity and/or shares of the said person.
"TAXATION" means any form of taxes, customs tax, import
duty and tax collection (whether collected in
the PRC or in any other countries), including
but not limited to profit tax, income tax
(including the amount withhold or prepaid in
accordance with the provisions of the income
tax), company tax, capital gain tax, value
added tax, customs tax or other import and
export tax, consumption tax, stamp duty,
social insurance or any other similar
payments or any forms of taxation, interest,
penalties or additional charges in connection
with the JV Company and its subsidiaries.
1.2 Unless the context stipulates otherwise, in this Agreement:
1.2.1 any reference to preamble, clauses or schedules means the
preamble, clauses or schedules of this Agreement.
1.2.2 expressions in the singular form shall include the plural and vice
versa, and all references to the masculine gender shall include
the female and neuter genders and vice versa.
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1.2.3 writing or written shall include any legible and non-provisional
text reproduction;
1.2.4 the heading in this Agreement are for ease of reference only and
shall not affect its interpretation;
1.2.5 reference to "persons" shall include any individuals, enterprises
or other corporations, govenments, states or government
authorities or any JV Companys, association or partnerships,
labour union or employees' representing institution (whether
independent legal person or not);
1.2.6 reference to "companies" shall include any legal person
organisation established in any other place:
2. TRANSFER OF EQUITY INTEREST
2.1 Subject to the terms and conditions provided in this Agreement, at the
Closing Date, the Seller, as the only legal and benefical owner of the
Equity Interest as well as the rights, interests and benefits attached
thereto, shall tranfer free of encumbrances to the Buyer who shall
purchase the Equity Interest abd all the rights, interests and benefits
attached thereto from the Seller.
2.2 The Seller warrants with the Buyer that:
2.2.1 it has the right to sell and transfer the Equity Interest and all
the rights, interests and benefits attached thereto according to
the terms and conditions set in this Agreement to the Buyer;
2.2.2 the Equity Interest shall be sold free of all liens, charges,
pre-emptive rights and any other Encumbrances; and
2.2.3 after the Closing Date, it will, at its own cost, sign or make (or
procure any other necessary party to sign or make) all such
covenants, documents and things as the Buyer may from time to time
require in order to vest the Equity Interest in the Buyer or as
otherwise may be necessary to give full effect to this Agreement.
3. TRANSFER PRICE
3.1 Subject to the terms and conditions provided herein. The Parties have
agreed that the Transfer Price shall be the sum of US$ 22,746,805.82
(equivalent to RMB 182,361,142.25 yuan, calcuted at the middle exchange
rate of RMB published by the People's Bank of China on 31 March, 2006
(namely, US$1.00 : RMB 8.0170)) which shall be fully paid by the Buyer to
the Seller within three (3) months of the date on which the JV company's
new Business License is granted; or this amount can be paid in another way
by the Buyer to the Seller upon negotiations between the Buyer and Seller.
3.2 The amount payable pursuant to CLAUSE 3.1 above shall be paid by the Buyer
by way of wire transfer to such bank account as the Seller may inform the
Buyer by written notice at least three (3) Business Days prior to ther
Closing Date.
4. CONDITIONS PRECEDENT
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4.1 The Buyer's performance of its obligations under this Agreement shall be
subject to the following conditions precedent:
4.1.1 the representations, undertakings and warranties of Seller in
Schedule 5 of this Agreement shall be substantially true, accurate
and complete in all aspects and free of misleading and shall be
effective as at the Closing Date;
4.1.2 no action or other legal proceedings has been commenced or
threatened to be commenced against the Seller which may restrict
the transfer of Equity Interest hereunder or cause such transfer
to be impossible or illegal except for those instituted directly
or indirectly by the Buyer;
4.1.3 the Seller has provided the Buyer with a true copy certified by
its director or company secretary evidencing that its Board of
Directors has validly approved the Seller to execute and perform
this Agreement, to transfer the Equity Interest and the name and
signature of the person being authorised to sign this Agreement
and the related documents;
4.1.4 the Seller has provided the Buyer with a copy of the resolution
validly resolved by the Shareholders Meeting of Wuxi Huayi which
contains, including but without limitation, that (a) it has
approved the transfer of the Equity Interest by the Seller to the
Buyer; (b) it has agreed to waive its pre-emptive right to the
Equity Interest; and (c) it has agreed that Clause 10(d) of the JV
Contract shall not be applicable to the transaction contemplated
in this Agreement;
4.1.5 the Seller has provided the Buyer with a copy of the resolution
validly resolved by the Board of Directors of the JV Company which
contains, including but without limitation, that (a) it has
approved the transfer of the Equity Interest by the Seller to the
Buyer; (b) the JV Company shall adopt the New Articles and make
application to the relevant PRC government authorities for new
Approval Certificate and business licence; and (c) it has approved
the resignation of all directors appointed by the Seller and the
appointment of the persons nominated by the Buyer as the new
directors;
4.1.6 the transfer of the Equity Interest has been approved by the
Commerce Department or any other PRC government authorities and
the Approval and the Approval Certificate have been issued to the
JV company;
4.1.7 the JV Company has applied to the relevant administration for
industry and commerce in the PRC for change of its business
licence and such new business licence has been issued to the JV
Company;
4.1.8 the Seller has provided the Buyer with Resignation Letters in the
Agreed Form as provided in Schedule 2 hereof signed by all the
directors appointed by the Seller to the JV Company;
4.1.9 the Seller has sent to Wuxi Huayia a Notice of Equity Transfer in
the Agreed Form as provided in Schedule 3 hereof;
4.1.10 the Seller has provided the Buyer with a Letter of Consent to
Equity Transfer in the Agreed Form as provided in Schedule 4
hereof signed and delivered by Wuxi Huayi;
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4.1.11 the Seller has provided the Buyer with all relevant banks' consent
to or approval of the transfer of the Equity Interest required
under the JV Company's loans;
4.1.12 the Buyer is reasonably satisfied with the result of investigation
and verification in relation to the financial and legal aspects of
the JV Company; and
4.1.13 the Seller has provided all other documents reasonably requested
by the Buyer.
4.2 The Seller's performance of its obligations under this Agreement shall be
subject to the following conditions precedent:
4.2.1 the Buyer has provided the Seller with a true copy certified by
its directors or company secretary evidencing that its Board of
Director has validly approved the Buyer to execute and perform
this Agreement, to purchase the Equity Interest and the name and
signature of the person being authorised to sign this Agreement
and the related documents; and
4.2.2 the Buyer shall promptly prepare the New Articles after the
transfer of Equity Interest so as to file report to the Commerce
Department.
4.3 If the conditions set forth in CLAUSE 4.1 and/or CLAUSE 4.2 are not
satisfied or waived on or before 28 April, 2007, the Buyer shall be
entitled to withdraw from this Agreement or to set a new closing date. In
the event that the Buyer decides to withdraw from this Agreement, the
rights and obligations of both Parties under this Agreement shall be
invalidated from such date and this Agreement shall be forthwith
terminated and ceased to be effective and, save as provided otherwise, no
Party shall have any rights or obligations under this agreement.
5. LIABILITY PRIOR TO CLOSING
5.1 The Seller undertakes to the Buyer that it shall procure that the JV
Company shall, during the period from the date of this Agreement to the
Closing Date (inclusive), maintain its operation activities and carry on
its business (including nature and scope) in the same way as that before
the date of this Agreement and, without the written consent of the Buyer,
the Seller shall not procure or permit the JV Company to:
5.1.1 appoint or substitute any director, secretary or any other
officers;
5.1.2 announce, distribute or pay any dividend or other money, or do or
intentionally permit to do any act which shall make the financial
position of the JV Company worse than that AS of the date of this
Agreement, except for the dividend or other money in relation to
the JV Company's undistributed profits as of the Reference Date
announced by the Board of Directors of the JV Company before the
date of this Agreement but not yet distributed;
5.1.3 save as provided in this Agreement, amend the JV Contract or
articles of association of the JV Company, or do or permit to do
any conduct, act or thing which may cause such amendment;
5.1.4 save as provided in this Agreement, take over or acquire, out of
its ordinary course of business, any assets, or transfer or sell
any right of first refusal or pre-emptive right in relation to any
of its assets, or enter into any contract in connection therewith;
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5.1.5 create, redeem or knowingly permit to create any lien (except in
the course of ordinary transaction), mortgage, pledge, debt.
Encumbrances, pawn or any third party' interests over the JV
Company and its business, property or assets:
5.1.6 take any significant act or omission which may cause the JV
Company to cease operation, terminate or violate materially any
contract or arrangement to which the JV Company is a party;
5.1.7 increase substantially payment to any loan (including any
overdraft or debt under any lease or hire-purchase agreement,
whether actual or postponed) thus making it higher than that of
the date of this Agreement, except for those necessary for the
ordinary business of the JV Company;
5.1.8 enter into any extraordinary or abnormal contract or undertaking,
or out of its ordinary course of business or incurring a liability
in an amount exceeding USS 1,000,000:
(a) to process any loan (except for the loan acquired by the JV
Company by way of refinancing for the repayment of the
Shareholder's Loan); 0r
(b) to enter into any lease, hire-purchase or any other
agreements or make repayment arrangement in the form of
delayed payment (except the purchase made before and paid
after the date of this Agreement);
5.1.9 grant any lease or third party rights in connection with its
property or transfer or sell any asset;
5.1.10 make any proposal or announcement on any change to or increase of
the retirement/decease/disability welfare in respect of or in
connection with any of its directors, employees, former directors,
former employees (or any dependents of such persons) or grant or
create any additional retirement/decease/disability welfare;
5.1.11 make any of its insurances void or take any action which may cause
the insurance policy to be void or voidable;
5.1.12 agree with or upon conditions or otherwise agree to cany out any
of the aforesaid act; and/or
5.1.13 deviate substantially from the daily ordinary course of business.
5.2 Prior to the Closing, the Seller shall not:
5.2.1 sell any interest of the Equity Interest or any pari thereof or
create any privilege, pre-emptive right, mortgage or other
Encumbrances over the Equity Interest; and
5.2.2 take, omit to take, cause or permit to take or omit to take any
action or matter that results (or may result) in violation of any
representations, warranties or undertakings that it shall make on
the Closing Date.
5.3 In the event that the Seller, before the Closing, is aware and reasonably
believes that any mailer has happened or may happen which constitutes (or
may constitute later) a
7
misrepresentation or a breach of the its warranties, the liabilities on
its part or any other stipulations, it shall immediately inform the Buyer
of the same in writing.
5.4 On or before the Closing Date, upon the Buyer's written request, the
Seller shall procure that any agreement or arrangement (if any) between it
and the JV Company shall be terminated or discharged, and thereby shall
not impose any punishment on, or raise claim against, or cause any other
adverse consequences to the JV Company.
6. CLOSING
6.1 Subject to the terms and conditions hereof, transfer of the Equity
Interest shall take place at the office of the JV Company at or before
5:00 p.m. (Hong Kong time) five (5) Business Days after all conditions
precedent set out in CLAUSE 4 hereof have been fulfilled or waived
("Closing Date"), unless both Parties have agreed upon any other date and
venue in writing.
6.2 At the Closing:
6.2.1 The Seller shall deliver the following documents or handover the
following assets to the Buyer:
(a) the original capital verification report of the JV Company
issued by Wixi Dazhong Accounting Company Limited on 16th
February 2006;
(b) the Evaluation Report;
(c) the list of new directors of the JV Company provided by the
Buyer; and
(d) the original documents to be submitted in accordance with
CLAUSE 4.1 hereof.
6.2.2 The Buyer shall:
(a) provide the original documents to the Seller as required in
Clause 4.2 hereof; and
(b) pay the Transfer Price in accordance with CLAUSE 3 hereof
after the satisfaction of the requirements set out in CLAUSE
6.2.1.
6.3 After all requirements set out in CLAUSE 6.2 above have been fulfilled,
the Buyer shall obtain the Equity Interest and all the rights, interest
and benefits attached thereto in the JV Company free of any encumbrances.
6.4 The JV Company shall adopt the new Articles of Association, and submit
applications to the relevant government authorities for the purpose of
obtaining the new approval certificate and business license, etc.
6.5 After the Closing Date, the Seller and the Buyer shall procure and assist
the JV Company to apply to the relevant PRC government authorities for the
alternation in connection with tax, customs, foreign exchange and finance
issues.
6.6 After the Closing, when the Seller is still the registered holder of the
Equity Interest, it shall hold the Equity Interest and all rights,
interest and benefits attached thereto as a trustee for the
8
Buyer. The Seller shall follow the Buyer's instruction to deal with the
Equity Interest and all rights, interest and benefits attached thereto; in
particular the Seller shall follow the Buyer's instruction to exercise any
voting right or execute power of attorney or any other documents to enable
the Buyer or its representative to attend and vote at any meetings of the
JV Company.
6.7 In the event that this Agreement is terminated by the Seller or Buyer,
except for the rights and obligations of a Party which have existed as of
the date of the termination and shall not be affected thereby, any other
rights and obligations of each Party shall be immediately terminated upon
the termination of this Agreement.
6.8 All the warranties of the Seller are true, accurate and not misleading as
of the date of this Agreement. If the Buyer; finds out after the Closing
that any warranty is untrue, inaccurate or misleading, it shall have right
to make claim against the Seller.
7. REPRESENTATIONS, UNDERTAKINGS AND WARRANTIES
7.1 Upon the date of this Agreement and the Closing Date, the Seller shall
make representations. undertakings and warranties to the Buyer that:
7.1.1 it is the sole legal and beneficial owner of the Equity Interest
and all rights, interests and benefits attached thereto;
7.1.2 it is a company incorporated and validly existing under the laws
of Malaysia and is an independent legal person entity;
7.1.3 it has full power, capability, authorization and approval to (a)
enter into this Agreement; (b) transfer the Equity Interest; (c)
perform the obligations hereof; and (d) complete the transaction
contemplated in this Agreement;
7.1.4 its representative signing this Agreement has the full
authorization and power to do so without requiring any approval,
consent, licence or authorisation from any other government
authorities or third person except as provided otherwise in this
Agreement;
7.1.5 this Agreement once put into force, shall constitute a legal,
valid and binding agreement for the Seller which shall be
enforceable in accordance with the terms hereof;
7.1.6 neither the execution nor performance of this Agreement by the
Seller do or will conflict with or result in a breach of or
violate any provisions of its articles of association or other
constitutional documents or any laws, regulations, authorisation
and approval of government authorities or institutions, or any
contract or agreement signed by or binding the Seller;
7.1.7 no litigation, arbitration or legal, administrative or any other
proceedings or government investigations affecting the Seller's
capability to enter into or perform this Agreement has commenced
or been threatened; and
7.1.8 all material facts and information in connection with the Seller
and/or the JV Company which may affect the execution and
performance of tin's Agreement by the Seller or which are vital
for the Buyer to evaluate the JV Company, its business or assets
have been disclosed to the Buyer. Such disclosure is true,
complete. accurate and not misleading in all substantial aspects.
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7.2 The Seller's representations, warranties and undertakings in this
Agreement and Schedule 5 shall be treated independent from each other.
Except as expressly provided to the contrary in this Agreement, no such
representations, warranties and undertakings shall be restricted due to
the knowledge or constructive knowledge of the Buyer or its agent.
8. NON-COMPETITION
8.1 The Seller undertakes and warrants that, except with a prior written
consent from the Buyer, during the period from Closing Date to 31 December
2008 the Seller shall not:
8.1.1 be engaged or participate in any business or other activities in
the PRC in any manner, directly or indirectly, which is or may be
in competition with the business engaged in by the JV Company on
the Closing Date;
8.1.2 canvass or solicit any person who is a customer, supplier, agent
or business partner of the JV Company before the Closing Date for
orders, or solicit or endeavour to solicit any customer, supplier,
agent or business partner of the JV Company to cease seeking
service from the JV Company or to restrict or alter the service
terms.
8.1.3 solicit or entice away or endeavour to solicit or entice away in
any manners (for itself or any other person) any person who is or
has been a manager or employee of the JV Company;
8.1.4 use or (save as required by laws or the competent regulatory
authority) disclose or divulge to any third person any secret or
confidential information in connection with the JV Company's
business or affair or its customers or suppliers; and/or
8.1.5 using or to permit to use any shop name, trade name or trademark
used by the JV Company as of the Closing Date or any other name
which is similar to such trade name or trademark.
9. CONFIDENTIALITY
9.1 Each Party hereto shall ensure confidentiality of all the information and
documents (finance, technology or others) acquired in any form from the
other party, including but not limited to the information with regard to
the execution and contents of and the transaction negotiated under this
Agreement and the relevant documents ("Information"). Without prior
written consent from the other Party, neither Party shall for any purpose
disclose the Information to any third party or public, save as required by
laws or the relevant stock exchange or such disclosure is necessary for
the performance of this Agreement. Before disclosing the Information, a
Parly shall obtain a prior written consent from the other Party hereto who
shall not unreasonably refuse or delay in giving such consent.
9.2 Each Party hereto shall procure that the directors and employees of each
Party or its affiliates shall comply with the confidentiality obligation
in CLAUSE 9.1 and shall be responsible for the other Party against any
breach of this clause by such person.
9.3 The confidentiality obligation in this CLAUSE 9 shall survive the
termination of this Agreement.
10. INDEMNITIES
10.1 The Seller shall indemnify and hold the Buyer and/or the JV Company, their
respective subsidiaries and/or employees, managers and directors harmless
from, against and in respect
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of the action, damage, loss, liability and cost (including but not limited
to the reasonable costs of any action or legal proceedings' investigation
or the reasonable fees for retaining counsels or agents) arising from or
related to the following:
10.1.1 any Seller's representations, warranties and undertakings under
this Agreement are untrue, misleading or violated; and/or
10.1.2 the Seller is in breach of any provision of this Agreement.
10.2 The Buyer shall indemnify the Seller against any losses which may be
suffered by the Seller as a result of the Buyer's breach of any provision
of this Agreement.
11. DISPUTE RESOLUTION
11.1 In the event of any dispute arising out of or in connection with this
Agreement, including but not limited to the execution, performance,
interpretation, termination or validity dispute ("DISPUTE") in connection
with this Agreement, both Parties shall attempt to resolve such dispute
through amicable negotiation which shall be commenced immediately after a
Party's written notice to the other of the existing dispute.
11.2 If the Parties are unable to resolve such dispute within sixty (60) days
of a Party's first written notice to the other of the existing dispute,
then either Party may submit such dispute for arbitration.
11.3 Any dispute in relation to this Agreement should be submitted to the China
International Economic & Trade Arbitration Commission ("COMMISSION") for
arbitration which shall be conducted in accordance with the then effective
arbitration rules of the Commission. The arbitration shall take place in
Shanghai.
11.4 The arbitration tribunal shall consist of three (3) arbitrators, of which
one arbitrator shall be appointed by each party, and the third one shall
be appointed by the Commission in accordance with its applicable
arbitration rules.
11.5 The arbitral award shall be final and binding upon the Parties. Both
Parties agree to be bound by and shall proceed with such award. Either
Party may apply to any court with jurisdiction for judicial
acknowledgement and enforcement of the award.
11.6 Any arbitration fee shall be paid by the losing party except as otherwise
provided in the award.
11.7 During the period of arbitration, except to the extent of the part in
dispute and under arbitration, this Agreement shall remain effective and
the Parties shall in all other respects continue their implementation of
this Agreement.
12. GOVERNING LAW
This Agreement shall be governed by and construed in accordance with the
laws of the PRC.
13. NOTICES
13.1 Any notice or written communications ("NOTICE") issued by one Party to the
other, including but not limited to any written materials or notices,
shall be in Chinese writing, which shall be delivered to the recipient at
his address as set out in CLAUSE 13.3 in the following manners:
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13.1.1 delivered personally;
13.1.2 sent by prepaid registered mail;
13.1.3 sent by internationally recognised overnight courier service with
postage prepaid; and/or
13.1.4 sent by fax.
13.2 A notice shall be deemed to have been actually received:
13.2.1 if delivered personally, on the date of delivery;
13.2.2 in the case of prepaid registered mail, on the fifth (5th)
Business Day from the date of posting;
13.2.3 in the case of express courier, on the third (3rd) Business Day
from the date of posting;
13.2.4 in the case of a fax, on completion of the transmission provided
that the sender has received printed confirmation of
transmission.
13.3 Any notices to a Party shall bear such Party's name and be given to such
Party at its address or fax numbers set forth below or other address or
fax numbers informed from time to time by such Party.
13.3.1 Notice to WUXI HUAYI INVESTMENT COMPANY LIMITED:
Address: ▇▇▇▇ ▇▇▇, ▇▇.▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ (▇.), Wuxi, The
PRC, Post code:[*]
Recipient: PIAO Longhua
Facsimile:
13.3.2 Notice to FIRST SPACE HOLDINGS LIMITED:
Address: 44/F., Bank of China Tower, ▇ ▇▇▇▇▇▇ ▇▇▇▇. ▇▇▇▇▇▇▇,
▇▇▇▇ ▇▇▇▇
Recipient: ▇▇▇▇▇ ▇▇▇▇▇ bin Harun (c/o DLA ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇)
Facsimile: (▇▇▇)▇▇▇▇▇▇▇▇
Should any Party change its address set forth above or subsequently
provided, it shall inform the other Party of such change by no less than
fifteen (15) Business Days prior written notice.
14. ENTIRE AGREEMENT
14.1 This Agreement and the documents referred hereto contain the entire
agreement of the Parties in connection with the transaction under this
Agreement and Supersede all previous oral or written agreements,
contracts, understanding or communications between the Parties relating to
the subject matter hereof.
14.2 Each Party acknowledges to the other that, upon entering into this
Agreement, it has not been induced to enter into this Agreement by nor
relied upon any representation or warranty or
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undertaking other than the representations, warranties and/or undertakings
expressly set forth in this Agreement or in the documents referred hereto.
15. NO ASSIGNMENT
Neither Party hereto shall assign all or part of its rights and/or
obligations under this Agreement (whether willingly or by law) without
prior written consent from the other Party.
16. WAIVER
No waiver of any breach or default hereunder shall be considered valid
unless given in writing, and except as expressly provided otherwise, no
such waiver shall be deemed a waiver of any subsequent breach or default
of the same or similar nature.
17. SEVERABILITY
If any provision of this Agreement is found by an arbitration institution
or a court to be invalid, illegal or unenforceable, the validity and
enforceability of the remaining provisions hereof shall not be affected by
such invalid, illegal or unenforceable provision.
18. MISCELLANEOUS
18.1 Nothing contained or implied in this Agreement shall constitute or be
deemed to constitute a partnership or agency between the Parties and none
of the Parties shall have any authority to bind or make any warranty,
representation or undertaking on behalf of the other Party.
18.2 Any stamp duty, corporate income tax and other relevant taxes in
connection with this Agreement and the transaction hereunder shall be paid
the Parties in accordance with the applicable PRC laws. The Seller hereby
undertakes that it shall, pursuant to the applicable PRC laws, regulations
and rules, pay all the taxes in connection with the equity transfer under
this Agreement and shall indemnify the Buyer and/or the JV Company any
loss, damage, expense or any other liabilities of the Buyer and/or the JV
Company arising out of the Seller's failure to pay such taxes.
18.3 Time is of the essence in this Agreement.
18.4 This Agreement shall be signed and sealed by the Parties and shall come
into effect upon the approval of the Commerce Department.
18.5 This Agreement shall be in Chinese and shall be made in eight (8) copies,
each Party shall hold two (2) copies and the remaining copies shall be
filed with the relevant government authorities.
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IN WITNESS WHEREOF, the Parties have caused the Agreement to be executed by
their respective duly authorised representative on the date which appears in the
first page hereof.
SELLER:
WUXI HUAYI INVESTMENT COMPANY LIMITED
/s/ (seal)
-----------------------------------------
Legal representative or authorised represetative (Signature)
BUYER:
FIRST SPACE HOLDINGS LIMITED
/s/ (seal)
------------------------------------
Authorized representative (Signature)
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SCHEDULE 1
PARTICULARS OF THE JV COMPANY
Company Name : Wuxi Seamless Oil Pipe Co. Ltd.
Legal Address : ▇▇. ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, National Hi-Tech
Development Zone
Business Licence No. : Qihesuxizongzi No.004300
Date and Place of : 17th November 1999, Wuxi
Incorporation
Nature of Enterprise : Sino-Foreign Equity JV Company
Total Amount of Investment : US$ 88,300,000
Registered Capital : US$ 35,000,000
Directors : Dato' ▇▇ ▇▇▇▇▇ ▇▇▇▇▇ bin Harun, PIAO Longhua.
ZHANG Jun. Ooi Koe ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ Bin
Zakaria, Yus of Bin Hussin, XU Xizhong,
▇▇▇▇▇ ▇▇ and YE Zongdi
Shareholders and shareholding : Shareholders Capital Contribution Proportion
------------ -------------------------------
(1) Wuxi Huayi Investment Co., Ltd. 49%
(2) UMW ACE (L)LTD. 51%
Particulars of Subsidiaries of the JV Company:
1. Company Name : Jiangsu Fanli Steel Pipes Co. Ltd.
Legal Address : Gong Nine Road, Industry Development Zone,
Xuyu county, PRC
Business Licence No. : 3208301100946
Date and Place of : 16th April 2004, Xuyu
Incorporation
Nature of Enterprise : Limited Liability Company
Total Amount of : RMB 50,000,000
Investment
Registered Capital : RMB 50.000,000
Directors : Piao Longhua, ▇▇▇▇▇ ▇▇▇▇ and ▇▇▇▇▇▇▇▇
Bin Zakaria
Shareholders and shareholding : Shareholders Capital Contribution Proportion
------------ -------------------------------
(1) ▇▇▇▇▇ ▇▇▇▇ 24%
(2) ▇▇▇▇▇ ▇▇▇▇▇ 4%
(3) Gu Jianming 2%
(4) Wuxi Seamless Oil Pipes 70%
15
2. Subsidiary Name : Wuxi Seamless Oil Extraction
Equipment Co. Ltd.
Legal Address : Land No.25, Wuxi National Hi-tech Industrial
Development Zone, Wuxi city. Jiangsu
province, PRC
Business Licence No. : 3202131101765
Date and Place of
Incorporation : 10th November 2004, Wuxi
Nature of Enterprise : Limited Liability Company
Total Amount of Investment : RMB 10,000,000
Registered Capital : RMB 10,000,000
Directors : Piao Longhua, Encik ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and bin
Zakaria, Ooi Koe ▇▇▇▇▇, Zhu ▇▇▇ ▇▇▇▇▇▇
Shareholders and shareholding : Shareholders Capital Contribution Proportion
------------ -------------------------------
(1) Wuxi Seamless Oil Pipes 51%
(2) ▇▇▇ ▇▇▇▇▇▇▇▇ 49%
3. Subsidiary Name : Wuxi Seamless Drill Pipes Co. Ltd.
Legal Address : Land C, Chengnan Road, Wuxi New District,
Jiangsu province, PRC
Business Licence No. : ▇▇ ▇▇ ▇▇ ▇▇ ▇▇▇▇ ▇▇ ▇▇.▇▇▇▇▇▇
Date and Place of : 30th August 2005, Wuxi
Incorporation
Nature of Enterprise : Sino-foreign Joint Venture
Total Amount of : RMB 7,000,000
Investment
Registered Capital : RMB 3,600,000
Directors : Dato ▇▇ ▇▇▇▇▇ ▇▇▇▇▇ bin Haru, Piao Longhua,
Ooi Koe ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ Bin ▇▇▇▇▇▇▇,
Zhang Jun, ▇▇▇ ▇▇▇▇▇▇ and Zhao Rencun
16
Shareholders and shareholding : Shareholders Capital Contribution Proportion
------------ -------------------------------
(1) Wuxi Seamless Oil Pipes 51%
(2) Hallong International (L) Ltd. 40%
(3) Wuxi Wei Er De Technology Co. Ltd. 9%
4. Subsidiary Name : Daqing Yilang Site Oil Pipes Co. Ltd.
Legal Address : No.l, Yinlang Avenue. Ranghulu district,
Daqing city
Business Licence No. : 2306041100268 (1--1)
Date and Place of : 19th January 2005, Daqing
Incorporation
Nature of Enterprise : Limited Liability Company
Total Amount of Investment : RMB 30,000,000
Registered Capital : RMB 30.000,000
Directors : Gao Jingge, Zhao Yuehai, Piao Longhua,
Zhang Jianqi, Yin Qiming
Shareholders and shareholding : Shareholders Capital Contribution Proportion
------------ -------------------------------
(1) Wuxi Seamless Oil Pipes 33.33%
(2) Daqing Xingyi Industry Co. 66.67%
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SCHEDULE 2
AGREED FORM OF RESIGNATION LETTER FOR DIRECTORS
To : WUXI SEAMLESS OIL PIPE CO. LTD. ("JV COMPANY")
Address : ▇▇.▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇-▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
Attn. : XU Xizhong
Re: Resignation of Director
I,________________________hereby inform the JV Company that I formally
resign from the board of directors of the JV Company as of today.
I hereby confirm that:
(1) all claims (including but not limited to claims for salary) and
obligations, rights and benefits I shall be entitled to receive from
the JV Company have been satisfied; and
(2) I will not make any claim or have any other requirement against the
JV Company for any reason such as the loss of any position from the
JV Company.
Name of the director:
Signature: ________________________
Date: __________________, 2006
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SCHEDULE 3
AGREED FORM OF EQUITY TRANSFER NOTICE
To: UMW ACE (L) LTD.
Dear Sirs:
Re: Wuxi Seamless Oil Pipe Co. Ltd. ("JV COMPANY")
We have entered into an Equity JV Company Contract ("JV CONTRACT") and the
Articles of Association in connection with the JV Company with you on 20th
August 2005.
We are prepared to transfer the entire 49% Equity Interest in the JV Company
held by us to FIRST SPACE HOLDINGS LIMITED ("ASSIGNEE").
In accordance with CLAUSE 10(b) of the JV Contract and relevant provisions of
Sino-Foreign Equity Joint Venture Company Law of the PRC, before transferring
the said Equity Interest, you, as the other party of the JV Company, shall be
given a notice by us of such transfer. You shall have the pre-emptive right
over the Equity Interest that we proposed to transfer.
Please sign and deliver the Letter of Consent for Equity Transfer attached
hereto to confirm that you have agreed that:
(1) we can transfer all the 49% Equity Interest in the JV Company held by us
to the Assignee; and
(2) you have unconditionally and irrevocably waived your pre-emptive right
over the Equity Interest that we propose to transfer.
WUXI HUAYI INVESTMENT COMPANY LIMITED
Authorised Representative (Signature)
Seal: Wuxi Huayi Investment Company Limited
Date: Aug 2nd, 2006
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SCHEDULE 4
AGREED FORM OF LETTER OF CONSENT FOR EQUITY TRANSFER
To: Wuxi Huayi Investment Company Limited
Dear Sirs:
Re: Wuxi Seamless Oil Pipe Co., Ltd. ("JV COMPANY")
We have entered into an Equity JV Company Contract ("JV CONTRACT") and the
Articles of Association with you on 20th August 2005 in connection with the.JV
Company.
We are aware that you desire to transfer the 49% Equity Interest in the JV
Company held by you to FIRST SPACE HOLDINGS LIMITED ("ASSIGNEE").
We hereby confirm and agree that:
(1) you can transfer all the 49% Equity Interest in the JV Company held by you
to the Assignee; and
(2) we have unconditionally and irrevocably waived our pre-emptive right over
the Equity Interest that you proposed to transfer.
UMW ACE (L) LTD.
Authorised Representative (Signature):
Seal: UMW ACE (L) LTD.
Date: Aug 18th, 2006
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SCHEDULE 5
REPRESENTATIONS, UNDERTAKINGS AND WARRANTIES
A. ORGANISATION AND CURRENT STATUS OF THE JV COMPANY AND ITS AFFILIATES
(IF ANY)
(1) The JV Company and its affiliates (if any) are duly incorporated and
validly existing pursuant to the laws of China.
(2) The JV Company and its affiliates are entitled to continue to
operate all business operations it currently operates.
B SELLER'S OTHER RIGHTS AND INTERESTS IN THE JV COMPANY AND ITS AFFILIATES
(1) Except as disclosed in the Accounting Records, the JV Company and
its affiliates, upon their registration, have not operated any other
business or incurred any other obligations. The "Accounting Records"
described in this Annex shall mean the JV Company and its
affiliates' audited balance sheets, profit and loss statements and
relevant annotations hereto for the year ending 31 December 2005 and
the audited consolidated financial statements as of 31 March 2006.
(2) The Seller or any of its members do not have any rights or interests
in any business that is or may be competitive with that of the JV
Company and its affiliates.
C. FINANCIAL STATUS AND DEBTS
(1) The Accounting Records (as defined above) has provided a correct and
complete report in all specific aspects, sufficiently evidencing the
JV Company and its affiliates' financial status of each account as
at the respective closing dates and the performance of the business
operations during the accounting period. The Accounting Records are
21
compiled and audited according to the GAAP, conventions of China and
comply with all applicable laws and regulations.
(2) Except as disclosed in the Accounting Records, the JV Company and
its affiliates absolutely have no other known or anticipated debts
of whatever nature (incurred or not incurred, absolute, possible,
oral, or informal), including but not limited to any security or tax
liabilities..
(3) Upon the execution date of this Agreement, the Relevant Facilities
and Devices (as defined below), except for normal wear and tear, the
JV Company and its affiliates' financial status, properties, assets,
debts, and operation efficacy or prospectus, are free of any
material adverse change. The "Relevant Facilities and Devices" shall
mean all the buildings, facilities, machines, devices (including
office utilities and other devices), etc. owned by the JV Company
and its affiliates as of the execution date of this Agreement.
(4) The JV Company and its affiliates have submitted returns and
taxation reports required under the relevant local laws.
D. COMPLIANCE AND LAW SUITS
(1) The JV Company and its affiliates have been compliant with all laws,
regulations and rules applicable to its business, including but not
limited to the laws and regulations with respect to labour, fire
fighting and environmental protection.
(2) The JV Company and its affiliates has obtained all approvals,
certificates and permits, necessary or required for its corporation,
existing and operation.
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(3) As is known to The Seller, no individual, enterprise, association,
alliance, government agency or institution claims or threatens to
claim any law suit, claim, investigation, strike, claim by obligee,
or disputed issue against the JV Company and its affiliates, its
assets, products and services, or the transaction contemplated
hereunder, and the JV Company and its affiliates is not subject to
or in violation of any government order or any court judgment.
E. ASSETS
With respect to any Relevant Agreement (as defined below), lease
contract, franchise contract, or other covenant to which the JV
Company and its affiliates are a party or by which the JV Company
and its affiliates are bound, the JV Company and its affiliates have
fulfilled its obligations as required and has not breached any of
the same. As is known to the Seller, no such event (including the
execution and performance of this Agreement), at the moment or in
future, as time goes by or effected by notice, constitute or will
constitute any breach of such agreement, contract or covenant. The
"Relevant Agreement" referred to here shall mean all loan
agreements, customer contracts, lease contracts, permits and any
other oral or written contracts or agreements to which the JV
Company and its affiliates are a party or under which the JV Company
and its affiliates shall undertake obligations.
F. TAXATION
After the execution date of this Agreement, the JV Company and its
affiliates have not incurred any absolute or accidental obligation
or debt except those incurred in the ordinary and regular business
course or disclosed by this Agreement.
G. ACCURACY OF THE ANNEXES
All information and materials in connection with the JV Company and
its affiliates in this Annex are authentic, correct, complete and
not misleading.
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