Exhibit 10.19
Assets Purchase Agreement
Date: November 24, 2004
1
Assets Purchase Agreement
This Agreement is made and entered into on November 24, 2004 in Tai'an City,
People's Republic of China (hereinafter referred to as "PRC"), by and between
the following parties:
Seller: Shandong Shengda Nanomaterials Co., Ltd (hereinafter referred to
as "Party A")
Legal address: Daiyue Economic Zone, Tai'an City;
Purchaser: Singapore Eastern Nanomaterials Holdings Pte Ltd (hereinafter
referred to as "Party B")
Legal address: ▇▇.▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇
WHEREAS:
1. Party A is a limited liability company duly organized, validly existing
and in good standing under the laws of the P.R.C, which legally holds all
the property rights of the transferred assets;
2. Party B is a private limited liability company duly organized, validly
existing and in good standing under the laws of Singapore;
3. The shareholders' meeting of Party A has passed a resolution, approving
the transfer of assets under this Agreement; 4. After friendly
negotiation, Party A and Party B reach a common agreement to cooperate and
coordinate with each other to guarantee the successful and smooth transfer
of the assets.
In consideration of the recitals and of the respective covenants,
representations, warranties and agreements herein contained, and intending to be
legally bound hereby, the parties hereto hereby agree as follows:
Article 1: Definition
Except as otherwise referred to, the following terms in this Agreement have the
meanings as follows:
1. Transferred Assets: Assets of Party A used for business operation. For the
detailed list, see Attachment 1 of the Agreement for the Assets Appraisal
Report.
2. Effective Date of the Transfer: Date when all the conditions for
effectiveness listed in Article 5 of the Agreement have been fulfilled.
3. Base Appraisal Date: September 30, 2004
4. Assets Appraisal Report: Appraisal Statement made on the base appraisal
date for the transferred assets listed in Attachment 1, which is produced
2
by Tai'an Zhongcheng Limited Liability Certified Public Accounts' Firm and
confirmed by ▇▇. ▇▇▇ Yingchun, a Certified Assets Appraiser in China.
Article 2 Transfer of Assets
1. According to the terms of this Agreement, Party A agrees to transfer the
transferred assets to Party B in accordance with the terms in the
Agreement on the Effective Date of the Transfer.
2. Party B agrees to acquire the transferred assets from Party A pursuant to
the terms and conditions set forth in this Agreement.
3. Starting from the Effective Date of the Transfer set forth in this
Agreement, Party B shall become the legal owner of the transferred assets,
enjoying all the rights and assuming all the obligations related to the
transferred assets, while Party A shall not enjoy any right nor assume any
obligation related to the transferred assets, except as otherwise
prescribed in this Agreement. Party A shall guarantee to go through all
the legal formalities, including the change of certificates of ownership
of the relevant equipment and automobiles, insurance contracts and other
matters, within thirty days from the Effective Date of the Transfer of
this Agreement.
4. From the Effective Date of the Transfer of this Agreement, Party B and its
authorized persons shall have the full power and authority to take over
the transferred assets and to use them to do business operation or dispose
of them in a lawful manner.
Article 3 Transferred Assets
The parties hereby agree that, on the Base Appraisal Date, all the assets under
this Agreement that shall be transferred to Party B on the Effective Date of the
Transfer are listed in the Assets Appraisal Report in Attachment 1 of this
Agreement. The parties hereby confirm that, on the Effective Date of the
Transfer, Party A shall transfer all the aforementioned assets to Party B,
including all the movable facilities, factory workshops and other buildings used
for production, as well as all the documents and materials related to or
attached to the transferred assets, including all the business records,
accounting and financial records, operation records, statistics materials,
instruction manuals, maintenance instructions handbooks, training manual, and so
on, that are related to or subordinate to the transferred assets, no matter
which form they are recorded, being in a written form or computer software,
hardware, or other forms.
If the relevant business requires the approval from governmental agencies or the
consent of a third party, the parties shall cooperate to obtain such approval or
consent. If such consent cannot be obtained, all the contracts or agreements
signed by Party A with customers before the Effective Date of the Transfer
3
("customer contracts") shall be performed by Party A. If Party A cannot perform
such obligations set forth in the customer contracts as the relevant business
has been transferred to Party B, Party A shall entrust these obligations to
Party B, and pay corresponding costs and fees to Party B.
Article 4 Transfer Price, Time and Mode of Payment
1. The parties hereby agree that, according to the appraisal value of the
transferred assets recorded in the Assets Appraisal Report, the Transfer
Price for the transferred assets in this Agreement amounts to RMB
forty-six million six hundred forty-six thousand (46,646,000) yuan.
2. Party B shall pay the Transfer Price to Party A according to the former
item of this Agreement within ten working days from the Effective Date of
the Transfer set forth in Article 5 of this Agreement.
3. The parties hereby agree that, if, from the Base Appraisal Date to the
Effective Date of the Transfer, the value of the transferred assets
increases or decreases as a result of the constant business operation of
Party A, Party A shall take possession of the increased value or make up
for the decreased value.
Article 5 Conditions for the Effectiveness
1. The transfer of the transferred assets under this Agreement shall become
effective when the following conditions are fully fulfilled: both parties
put official seals on this Agreement, together with the signatures of the
legal representatives or authorized representatives of both parties.
2. The aforementioned date when all the conditions are fulfilled is the
Effective Date of the Transfer of this Agreement unless both parties agree
otherwise.
Article 6 Representations, Warranties and Promises of Party A
Party A hereby makes the following Representations, Warranties and Promises to
Party B:
1. Party A is a limited liability company duly organized, validly existing
and in good standing under the laws of the P.R.C and has all the necessary
power and authority to establish and perform all the responsibilities and
obligations under this Agreement. Once signed, this Agreement has lawful
and effective bounding effect on Party A. Party A's action of entering
into this Agreement with Party B shall not lead to breach of any other
contracts, its Articles of association and founding documents as well as
any applicable Chinese law and regulation.
2. Party A has the lawful and absolute ownership and controlling right to the
4
transferred assets, and has the power to sign this Agreement and to
transfer all or any part of the transferred assets, whereas such assets or
any right related to such assets are free from the restrictions of any
priority rights or the rights of a third party. After transfer of the
assets under this Agreement, Party B shall enjoy all the rights as the
owner of the transferred assets and can transfer or dispose of such assets
in a lawful manner, and shall not be restricted by any detain, mortgage or
the rights claimed by a third party.
3. On the signing date and the Effective Date of the Transfer under this
Agreement, there is no ongoing litigations, arbitrations or administrative
actions in which Party A is involved as one party, or with any part of the
transferred assets as object, or may involve Party A into any
disadvantageous verdict or award, that is, actions that may independently
or jointly cause any grave negative impact on the transferred assets or
business operation.
4. Party A has obtained all the certificates, documents, licenses, consent,
authorization related to the transfer of assets, shall affect the legality
of the transferred assets or the ownership of Party A, and do not have any
default stipulated in law.
5. All the property contained in the transferred assets that shall be insured
according to Chinese law and common practice of the trade have been
insured by Party A on the signing date of this Agreement. Such insurance
shall be still effective until the Effective Date of the Transfer, and
Party A has not claimed any compensation for damages for such insurance.
Party A promises that it shall neither take nor ignore any actions that
induce or may induce the invalidity of such insurance.
6. Until the Effective Date of the Transfer, Party A is not involved in any
production and operation contract or arrangement involving unusual
business terms and conditions that may cause grave negative impact on the
conditions of the transferred assets.
7. Before the Effective Date of the Transfer, Party A's use of the land where
the transferred assets occupy has been lawful and there is no need to pay
any overdue taxes or fees, Besides, there is no responsibility or
liability on the part of Party B as a result of Party A's use of the land
before the Effective Date of the Transfer which has not been formally
disclosed to Party B.
8. All the taxes and fees related to the transferred assets which have
bearings on the validity or completeness of the transferred assets have
been paid off, and there are no overdue taxes or fees.
9. No facts about the transferred assets have not been disclosed to Party B
by Party A, which might affect the establishment of this Agreement and
change the original meaning of any clause of this Agreement once being
disclosed.
10. On the Effective Date of the Transfer, the factory workshops, machines,
5
tools and other equipment included in the transferred assets are all under
good operational conditions and regular maintenance and repairs have been
done to them.
11. The high-level management or relevant persons in charge shall have the
confidentiality obligations for the business secrets or technical know-how
about the transferred assets before the Effective Date of the Transfer,
and shall not disclose any of them to the outside or use them for business
purpose.
12. After the Effective Date of the Transfer, Party A shall not, within or
outside the Chinese territory in any forms (including operation on its own
or through joint ventures) participate in any business or action which
shall bring actual or possible competition to the business operation of
Party B in a direct or indirect manner.
13. Until the Effective Date of the Transfer, Party A shall use, maintain and
manage the transferred assets in the same way as usual.
14. Until the Effective Date of the Transfer, Party A shall not dispose of any
part of the assets in any unusual manner. Compared with the condition on
the Base Appraisal Date, the value and composition of the transferred
assets shall not be subject to any obvious change which shall put Party B
in disadvantage.
Article 7 Representations, Warranties and Promises of Party B
Party B hereby makes the following representations, warranties and promises to
Party A:
1. Party B is a limited liability company duly organized, validly existing
and in good standing as a wholly foreign funded enterprise under the laws
of Singapore, properly owns its lawful assets and operates its ongoing
business.
2. Party B has full power and authority to acquire the transferred assets,
and has obtained all the lawful authorization for signing and performing
this Agreement.
3. Party B shall cooperate with Party A to deal with all the issues during
the process of transfer of assets that are not discussed in this Agreement
in line with the spirit of the laws and regulations of the state.
4. Party B shall pay the Transfer Price to Party A pursuant to the
stipulations set forth in this Agreement.
Article 9 Confidentiality
Except as otherwise clearly prescribed by the applicable Chinese laws or
regulations, or relevant Articles of association of the company and stipulations
or requirements clearly set forth in applicable Chinese laws and regulations,
6
any party, without the consent of the other party, shall not disclose any
information about this Agreement to any third party not involved in this
transfer before such transfer has been completed.
Article 10 Miscellaneous
Both Parties mutually agree that anything not covered in this Agreement will be
friendly discussed separately by both parties, and supplemental agreements shall
be established before the completion date of shares transfer. Supplemental
agreements shall be inseparate parts of this Agreement.
Article 11 Liabilities for Breach of Agreement
Any party breaks any representation, warranty or promise made in this Agreement,
or fails to abide by any clause of this Agreement, it shall be deemed as being
in breach of this agreement. The party in breach shall compensate the observant
party for all the losses, and the observant party has the right to decide
whether to go on performing or terminate this Agreement.
Article 12 Settlement of Disputes
1. Any disputes arising from the execution of, or in connection with this
Agreement shall be settled through friendly negotiation between both
parties hereto. In case no settlement to disputes can be reached through
friendly negotiation, any party can submit the dispute to the China
International Economic and Trade Arbitration Commission for arbitration in
accordance with the Arbitration Rules and the Procedures for the said
Commission. The arbitral award shall be final and have binding effect upon
both parties.
2. According to applicable Chinese laws, in the event that any provision
contained in this Agreement shall be determined to be invalid by the
arbitration court, the validity, legality and enforceability of any such
provision in every other respect and the remaining provisions of this
Agreement shall be in no matter impaired.
Article 13 Applicable Law
The formation, validity, interpretation, execution and settlement of disputes in
respect of this Agreement shall be governed by the relevant laws of the PRC.
7
Article 14 Assignment of Rights
Without the written consent from the other party, any party shall not assign its
rights under this Agreement. The successors and approved assignees of each party
shall all be bound by this Agreement.
Article 15 Force majeure
1. "Force majeure" means any unforeseeable event beyond the parties'
reasonable control, or any predictable event which cannot be prevented
which prevent any party from performing any obligation under this
Agreement. Force majeure includes, but is not limited to, earthquake,
typhoon, flood, fire or other natural disasters, war, riots, strike or any
other similar incident.
2. In the event of force majeure, the prevented party shall notify the other
party by quickest means without any delay, and within 15 days thereafter
provide detailed information of the events and a valid document for
evidence explaining the reason of its inability to execute or delay the
execution of all or part of the Agreement. Both parties shall, through
consultations, decide whether to delay the performance of this Agreement
or to terminate this Agreement.
Article 16 Appendices
All the appendices of this Agreement constitute integral parts of the Agreement,
which have the same legal effect.
Article 17 Text
This Agreement is written in Chinese and is made into four original copies, and
each party shall keep two copies. Each copy has the same legal effect.
8
Signatures of the Parties
IN WITNESS WHEREOF, the undersigned have hereunto set their hands to this
Agreement in Tai'an City, PRC as of the day and year first above written.
Shandong Shengda Nanomaterials Co. Ltd
Legal representative: Shan Chuanpo
Name: /s/ Shan Chuanpo
------------------
Title: Executive Director
November 24, 2004
Singapore Eastern Nanomaterials Holdings Pte Ltd
Authorized representative: Chen Xiangzhi
Name: /s/ Chen Xiangzhi
-------------------
Title: President
November 24, 2004
9
Assets Purchase Supplemental Agreement
This Assets Purchase Supplemental Agreement (hereinafter referred to as "this
Supplemental Agreement") is entered into on February 20, 2005 in Tai'an City,
Shandong Province, People's Republic of China (hereinafter referred to as "PRC")
by the following parties:
Seller: Shandong Shengda Nanomaterials Co., Ltd (hereinafter referred to as
"Party A")
Legal address: Daiyue Economic Zone, Tai'an City;
Purchaser: Singapore Eastern Nanomaterials Holdings Pte Ltd (hereinafter
referred to as "Party B")
Legal address: ▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇
WHEREAS:
1. Party A is a limited liability company duly organized, validly existing
and in good standing under the laws of the P.R.C, which legally holds all
the property rights of the transferred assets;
2. Party B is a private limited liability company duly organized, validly
existing and in good standing under the laws of Singapore;
3. Party A and Party B entered into an Assets Purchase Agreement (hereinafter
referred to as "Assets Purchase Agreement") on November 24, 2004, and have
finished the transfer of relevant assets. Party B has set up Shandong
Haize Nanomaterials Co., Ltd (hereinafter referred to as "Haize
Nanomaterials") in Tai'an City, Shandong Province, PRC to operate the
transferred assets.
4. After friendly negotiations, Party A and Party B agree to collaborate and
cooperate with each other. In order to guarantee the assets can be
successfully transferred from Party A to Party B, further make clear the
respective rights and obligations, with regard to the relevant issues of
the transfer of assets, Party A and Party B hereby make this Supplemental
Agreement as follows:
Article 1 Definition
For all terms that are not specially defined in this Supplemental Agreement, the
meaning thereof is the same as those in the Assets Purchase Agreement entered
into on November 24, 2004 by and between the two parties.
Article 2 Compensation Liabilities
For all requests, claims for damages, actions, losses, liabilities,
compensations, expenses as well as expenditures that are directly or indirectly
10
sustained or endured by Party B as a result of the fact that Party A has broken
any representation, warranty, promise or agreement made by it in both the Assets
Purchase Agreement and this Supplemental Agreement, Party A agrees to compensate
Party B and exempt all the losses suffered by Party B. After Party B has taken
over the transferred assets, for any claims for damages, compensations, expenses
and taxes raised by a third party against Party B concerning the transferred
assets, whether Party A has broken any representation, warranty, promise or
agreement made by it in both the Assets Purchase Agreement and this Supplemental
Agreement, Party A shall take measures to exempt Party B from the claims for
damages, or to compensate Party B with all the losses suffered from such claims.
Any claim put forward in line with the requirements set forth in this article
shall be raised to Party A in a written form, accompanied by reasonable and
detailed description of the facts and circumstances on which such a claim bases.
Article 3 Value Increase or Decrease
In accordance with the stipulations set forth in Article 4 (3) of the Assets
Purchase Agreement, if, from the Base Appraisal Date to the Effective Date of
the Transfer, the value of the transferred assets increases or decreases as a
result of the constant business operation of Party A, Party A shall take
possession of the increased value or make up for the decreased value.
According to the Balance Sheet of Haize Nanomaterials by the date of December
31, 2004 (see Attachment 1), Party A and Party B confirm irrevocably that,
during the period from the Base Appraisal Date to the Effective Date of the
Transfer, all the added value of the transferred assets resulting from the
constant producing and operating activities of Party A amounts to RMB six
million six hundred and sixty-seven thousand six hundred and ninety point eight
seven (6,667,690.87) (hereinafter referred to as "the Added Value"). The above
added value shall be paid to Party A by Haize Nanomaterials before June 30,
2006.
Article 4 Payment Time of the Transfer Price
Notwithstanding otherwise stipulated in the Assets Purchase Agreement, both
parties have agreed that Party B shall pay the transfer price in full to Party A
within six months after the founding date of Shandong Haize Nanomaterials Co.,
Ltd (i.e. December 14, 2004) pursuant to the stipulations set forth in Article 4
(1) of the Assets Purchase Agreement.
11
Article 5 Miscellaneous
Party A and Party B hereby agree that, all the other articles of Assets Purchase
Agreement are still effective. Relevant provisions in the Assets Purchase
Agreement shall be applied to all matters not specially stipulated in this
Supplemental Agreement.
Article 6 Effect
Party A and Party B hereby agree that, this Supplemental Agreement shall become
effective upon the signature and seal of the legal representatives of both
parties.
Article 7 Originals
This Agreement can be made into several originals and be signed. Each original
copy has the same legal effect.
Page of Signature
(No text in this page)
Signature of the Parties
IN WITNESS WHEREOF, the undersigned have hereunto set their hands to this
Agreement in Tai'an City, PRC as of the day and year first above written.
Shandong Shengda Nanomaterials Co. Ltd
Legal representative: Shan Chuanpo
Name: /s/ Shan Chuanpo
------------------
Title:
February 20, 2005
12
Singapore Eastern Nanomaterials Holdings Pte Ltd
Legal Representative: Chen Xiangzhi
Name: /s/ Chen Xiangzhi
-------------------
Title:
February 20, 2005
Shandong Haize Nanomaterials Co., Ltd
Legal Representative: Jia Hongping
Name: /s/ Jia Hongping
-----------------
Title:
February 20, 2005
13