Exhibit 10.2
October 18, 2005
EQUITY INTEREST TRANSFER AGREEMENT
between
TAMWORTH INDUSTRIAL LTD.
and
EURO TECH (FAR EAST) LIMITED
Fangda Partners
▇▇/▇, ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇, ▇▇▇▇▇
EQUITY INTEREST TRANSFER AGREEMENT
THIS EQUITY INTEREST TRANSFER AGREEMENT (this "Agreement"), dated
October 18, 2005, is entered into by and between TAMWORTH INDUSTRIAL LTD.,
(a company established and registered in British Virgin Islands,
hereinafter referred to as the "Seller") and EURO TECH (FAR EAST) LIMITED
(a limited liability company established in the Hong Kong Special
Administrative Region of the People's Republic of China, hereinafter
referred to as the "Buyer").
In this Agreement, each of the Buyer and the Seller is individually
referred to as "a Party" and both are collectively referred to as "the
Parties".
WHEREAS, Yixing PACT Environmental Technology Co., Ltd. (a limited
liability company organized pursuant to the laws of the People's Republic
of China ("PRC") with its legal address at Yixing Huankeyuan, Jiangsu
Province, PRC, hereinafter referred to as "PACT"), is a wholly foreign
owned enterprise invested and established by the Seller, with the
registered capital of US$106,000; and mainly engaged in producing and
selling environment protection equipment; undertaking environment
protection project and providing relevant technology advice, training
and services.
WHEREAS, the Seller duly holds 70% of the Equity Interest in PACT.
WHEREAS, the Seller agrees to sell to the Buyer, and the Buyer agrees
to purchase from the Seller, 21% of the aforesaid Equity Interest held
by the Seller ("Equity Interest Transferred").
NOW, THEREFORE, in consideration of the mutual covenants,
representations, warranties and agreements herein contained, the Parties
agree as follows:
ARTICLE 1 SALE AND PURCHASE
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SECTION 1.1 Sale and Purchase of the Equity Interest. On the terms
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and subject to the conditions hereof, the Seller agrees to sell and transfer
to the Buyer, and the Buyer agrees to purchase and acquire from the Seller,
all rights and interests of the Equity Interest, free and clear of all
liens, pledges, claims, and other encumbrances.
SECTION 1.2 Sale and Purchase Price. The aggregate purchase price
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payable by the Buyer for the Equity Interest shall be US$474,923 (the
"Purchase Price"). The Buyer shall make payment of the entire Purchase
Price in US Dollars by check to the account then designated by the Seller
on the closing date provided in Section 6.1 of this Agreement.
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ARTICLE 2 REPRESENTATIONS AND WARRANTIES OF SELLER
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The Seller represents and warrants to the Buyer as set forth below:
SECTION 2.1 Legal Status and Capacity of the Seller. The Seller is
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a limited liability company with independent corporate personality, duly
registered and validly existing under the laws of British Virgin Islands.
The Seller has full and complete legal status and legal capacity to enter
into, deliver and perform this Agreement and can be sued as an independent
party. As far as the Seller knows, the Seller is not involved in any debts
beyond assets, bankruptcy, termination, or any other significant law suit,
arbitration, or other events, status which may result in grave unfavorable
influence on the consummation of the transaction contemplated hereby and
the performance of its obligations under this Agreement.
SECTION 2.2 Authorization and Approval. The Seller has full corporate
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power and authorization to execute and deliver this Agreement and all
other documents executed or to be executed by the Seller in connection
with the transaction contemplated hereby and to consummate the transaction
contemplated hereby. The execution and delivery by the Seller of this
Agreement and each other document contemplated hereby, the performance
of the Seller of its obligations under this Agreement and such documents
hereto, and the consummation by it of the transaction contemplated hereby
have been duly authorized and approved. This Agreement has been duly and
validly executed and delivered by the Seller. This Agreement constitutes
and all the relevant documents to be executed by the Seller in connection
with the transaction contemplated hereby when so executed and delivered
will constitute a valid and binding obligation of the Seller, enforceable
against it in accordance with its terms.
SECTION 2.3 Ownership of the Equity Interest. The Equity Interest
--------------------------------
Transferred is owned of record and beneficially by the Seller, free and
clear of all liens, pledges, claims and encumbrances. On the closing date,
the Buyer will acquire good title to the Equity Interest Transferred,
free and clear of all liens, pledges, claims and encumbrances.
ARTICLE 3 REPRESENTATIONS AND WARRANTIES OF BUYER
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The Buyer hereby represents and warrants to the Seller as set forth
below:
SECTION 3.1 Legal Status and Capacity of the Buyer. The Buyer is an
--------------------------------------
enterprise with independent legal status and duly registered and validly
existing under the laws of Hong Kong. The Buyer has full and complete
legal power and capacity to enter into, deliver and perform this Agreement
and can be sued as an independent party. As far as the Buyer knows, the
Buyer is not involved in any debts beyond assets, bankruptcy, termination,
or any other significant law suit, arbitration, or other events, status
which may result in grave unfavorable influence on the consummation of
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the transaction contemplated hereby and the performance of its obligations
under this Agreement (including but not limited to the payment of the
purchasing price).
SECTION 3.2 Authorization and Approval. The Buyer has full corporate
--------------------------
power and authorization to execute and deliver this Agreement and all
other documents executed or to be executed by the Buyer in connection
with the transaction contemplated hereby and to consummate the transaction
contemplated hereby. The execution and delivery by the Buyer of this
Agreement and each other document contemplated hereby, the performance
of the Buyer of its obligations under this Agreement and such documents
hereto, and the consummation by it of the transaction contemplated hereby
have been or will be duly authorized and approved. This Agreement has
been duly and validly executed and delivered by the Buyer. This Agreement
constitutes, and all the relevant documents to be executed by the Buyer
in connection with the transaction contemplated hereby when so executed
and delivered will constitute, a valid and binding obligation of the Buyer,
enforceable against it in accordance with its terms.
ARTICLE 4 EFFECTIVENESS
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SECTION 4.1 Conditions Precedent to the Effectiveness of this
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Agreement. The Parties agree that this Agreement will take effect on the
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date when all conditions listed below have been satisfied and consummated
(the "Effective Date"):
(a) This Agreement has been executed by duly authorized
representatives of the Parties and delivered to each other;
(b) The Board of Directors of PACT has adopted resolutions according
to its Articles of Association duly approving this Agreement and
the transaction contemplated hereby, and has provided such executed
resolutions to both Parties;
(c) The agency of power of the Parties has duly conferred corporate
authorization on the approval of this Agreement and the transaction
contemplated hereby in the manner stipulated in the Articles of
Association and relevant organization documents, and has provided
such executed documents of authorization to the other party;
(d) The original examination and approval authority of PACT has
issued its complete and unconditional approval of this Agreement
and the transaction contemplated hereby, and both Parties have
received such approval duly signed and issued;
(e) All the permits, agreements, approval and authorization of other
governmental bodies necessary or useful for the performance of
the transaction contemplated hereby have been obtained, or the
Parties waive them in writing though haven't obtained hereto, or
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it's believed according to rational reason they are to be obtained;
(f) No change of the PRC laws or any other event relating to PACT
or the transaction contemplated hereby, which may result in
significant unfavorable influence on the party"s interests under
this Agreement as well as its ability to perform the obligations
of this Agreement, will occur after the day of signature till the
effective day;
(g) When signing this Agreement, the Parties have reached an
agreement and entered into a written contract on the acquisition
of 21% of the issued share capital interest of PACT ASIA PACIFIC
LIMITED ("PACT ASIA"), a company incorporated in the British Virgin
Islands by the Buyer from the Seller The total consideration of
the sale is US$525,077;
(h) Prior to the Effective date, the tangible net assets of PACT
shall not be less than RMB4,000,121; and
(i) The two checks have been received from the Buyer in favor of
the Seller for the amount of US$474,923 for transferring the Equity
Interest of PACT and US$525,077 for transferring shares of PACT
ASIA from the Seller to the Buyer. The checks representing the
total acquisition price for 21% equity interest of PACT and 21%
of the issued share capital of PACT ASIA ("Aggregate Acquisition
Price") from the Seller will be kept by Fangda Partners until
presentation of the new original certificates of registration of
PACT and PACT ASIA showing that the equity interest of PACT and
shares of PACT ASIA have been transferred.
ARTICLE 5 CLOSING CONDITIONS
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SECTION 5.1 Conditions to the Obligations of the Buyer under this
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Agreement. The obligations of the Buyer under this Agreement shall be
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subject to the satisfaction, at or prior to the Closing, of the following
conditions:
(a) Each and all of the actions, resolutions, decisions, consents,
approvals, authorizations and permits set forth in Section 4.1
above remain in their full and complete validity after the
Effective Date till and at the Closing; and
(b) Each of the obligations of the Seller required to be performed
by it at or prior to the Closing pursuant to the terms of this
Agreement shall have been duly performed and complied with in all
material respects, and the representations and warranties of the
Seller contained in this Agreement shall be true and correct in
all material respects as of the date of this Agreement and as of
the Closing as though made at and as of the Closing, and the Buyer
has obtained a certificate signed by the chairman of the board
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of the Seller to prove that the conditions stipulated hereto has
been satisfied.
SECTION 5.2 Conditions to the Obligations of the Seller under this
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Agreement. The obligations of the Seller under this Agreement shall be
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subject to the satisfaction, at or prior to the Closing, of the following
conditions:
(a) Each and all of the actions, resolutions, decisions, consents,
approvals, authorizations and permits set forth in Section 4.1
above remain in their full and complete validity after the
Effective Date till and at the Closing; and
(b) Each of the obligations of the Buyer required to be performed
by it at or prior to the Closing pursuant to the terms of this
Agreement shall have been duly performed and complied with in all
material respects, and the representations and warranties of the
Buyer contained in this Agreement shall be true and correct in
all material respects as of the date of this Agreement and as of
the Closing as though made at and as of the Closing, and the Seller
has obtained a certificate signed by the chairman of the board
of the Buyer to prove that the conditions stipulated hereto has
been satisfied.
ARTICLE 6 CLOSING
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SECTION 6.1 Closing. The closing of the transaction contemplated
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hereby (the "Closing") shall be conducted on the early date (no later
than the tenth working day) after the satisfaction of the Closing conditions
stipulated hereto and at the place agreed by the Parties, provided that
the conditions set forth in Article 5 have been satisfied or waived. The
transaction contemplated hereby will be deemed duly consummated once the
Fangda Partners forwards the checks in US Dollars for the Aggregate
Acquisition Price produced by the Buyer and the Seller accepts hereto
(The Seller shall not unduly refuse).
ARTICLE 7 COVENANTS
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SECTION 7.1 Taxes. The Buyer shall have no obligations and
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responsibilities to indemnify PACT (including its legal successor) or
the Seller of any taxes and governmental charges, if any (in whatsoever
nature) they have paid for reasons of this Agreement or the transaction
contemplated hereby, other than those taxes and government charges required
to be borne and paid by the Buyer for the transaction contemplated by
this Agreement according to applicable PRC laws and regulations.
SECTION 7.2 Obtaining of PACT's Board Resolutions. The Seller agrees
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and undertakes that it will instruct and cause PACT's directors it has
appointed to duly approve the resolutions of PACT's Board of Directors
authorizing this Agreement and the transaction contemplated hereby in
a proper manner within 5 working days after the execution and delivery
of this Agreement.
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SECTION 7.3 Procurement of Government Approvals. The Seller agrees
-----------------------------------
to be responsible for applying to the competent government authorities
or the relevant parties for the authorization, licenses, consents and
approvals necessary or useful as listed in Section 4.1, for and on behalf
of the Parties and PACT, and undertakes that it will use its best efforts
to procure such authorization, licenses, consents and approvals. The Buyer
shall provide all due assistance and cooperation hereto on reasonable
demand by the Seller and bear the expenses of formalities for the
transaction.
SECTION 7.4 Consummation of the Transaction. The Parties agree that
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the transaction contemplated hereby shall be deemed consummated on the
date of the Closing set forth in Section 6.1.
(a) Prior to the consummation, the Seller further covenants that,
(i) it will not apply for or cause others to apply for amendment
or cancellation of the approval certificate and business
license of PACT;
(ii) it will not take any other measure or action which may
influence the ownership of the Equity Interest Transferred
and the performance thereof;
(iii) it will not promise to sell or sell any or all of the Equity
Interest Transferred or create any and all liens, pledges,
claims, and other encumbrances over the Equity Interest
Transferred during the term of this Agreement;
(b) After consummation of the transaction contemplated hereby, the
Buyer further covenants that any time after the lapse of three
years from the date of Closing hereof, the Seller at its discretion
may offer to sell part or all of the remaining share of PACT held
by it to the Buyer, and the Buyer is obliged to buy such share
equity interest at the price of 5.2 times the average of net profit
for the latest three financial years;
(c) After the consummation, the Parties agree to regard the following
commitments as the binding terms and conditions to either, as well
as enumerate them in the Articles of Association and relevant
documents,
(i) PACT shall alter its registered capital with prior consent
of both Parties after consummation of the transaction
contemplated hereby within the permission by the laws and
regulations of PRC;
(ii) Additional members of the Board of Directors of PACT shall
be appointed by the Buyer after consummation of the
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transaction contemplated hereby so that the Buyer will have
majority of Directors in the Board.
(iii) PACT will distribute at least 35% of its net profits as
dividend for every financial year after consummation of the
transaction contemplated hereby, unless it's forbidden by the
laws and regulations of PRC;
(iv) the Parties acknowledge that a substantial portion of the
income for PACT is derived from sales to a company under the
name of the Seller set up in the Middle East in which ▇▇.
▇▇▇▇▇▇ ▇▇▇▇▇ has a beneficial interest in (the "Middle East
Company"). ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇ agrees, and the Parties will
cause ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇, to disclose the existing pricing
policy for sales to the Middle East Company and will adopt
this policy for all future sales to the Middle East Company
after consummation of the transaction contemplated hereby;
(v) PACT shall comply with the requirements of the United States
of America ▇▇▇▇▇▇▇ ▇▇▇▇▇ Act on internal control, and all
costs and expenses incurred shall be borne solely by PACT
after consummation of the transaction contemplated hereby;
(vi) PACT and PACT ASIA will continue to employ ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇
after consummation of the transaction contemplated hereby,
and his annual income obtained of 2005 from both of the
aforesaid companies shall be not less than USD 110,000 paid
by and from PACT ASIA to the account designated by ▇▇.
▇▇▇▇▇▇ ▇▇▇▇▇ in writing, and salary increment of the years
after 2005 shall be further discussed and confirmed by the
Parties and ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇;
(vii) ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇ undertakes hereby that after consummation
of the transaction contemplated hereby, he will comply with
the Section 6 "Non-Competition and Pricing Policy" of the
Employment Agreement signed between himself, PACT and PACT
ASIA on the same date of this Agreement.
(viii) PACT shall provide monthly financial statements (including
Income Statement, Balance Sheet and Cash Flow Statement etc.)
to the Buyer after consummation of the transaction
contemplated hereby;
(ix) After consummation of the transaction contemplated hereby,
PACT shall adhere to the following financial accounting
requirements, namely, PACT shall (1) prepare 1 set of
accounts to comply with PRC reporting and tax purposes, and
(2) prepare another set of monthly financial statements for
United States of America reporting by using the local PRC
accounts with US GAAP adjustments, such as (x) revenue
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recognition, (y) matching/accruals concept and (z) any
non-compliance with local statutory legal or tax
requirements;
(x) the financial statements of PACT shall be audited by a
certified public accountant nominated by the Buyer, and
all costs and expenses incurred shall be borne solely by
PACT after consummation of the transaction contemplated
hereby;
(xi) the Buyer shall nominate a suitably qualified person to fill
the post of accountant in PACT after consummation of the
transaction contemplated hereby;
(xii) PACT shall provide quarterly analysis of Orders received,
Sales (and Profits) and Backlog to the Buyer after
consummation of the transaction contemplated hereby;
(xiii) PACT shall not make any loan/advance to its staff, directors,
shareholders or related companies without the Buyer's consent
(except reasonable advance to staff for business trip);
(xiv) the bonus scheme of employees shall be approved by the Buyer
in case of anything deviated from the existing scheme (Annex
1) after consummation of the transaction contemplated hereby;
(xv) PACT undertakes hereby that when it needs money (in cash,
in cheque, or in any other form) with an amount more than
RMB200,000 (single or aggregated in a day), it shall obtain
the prior approval of the Chairman of PACT. For such purpose,
after the consummation of the transaction contemplated
hereby, PACT shall immediately instruct its banks that any
single amount drew by PACT (in any way) of more than
RMB200,000 shall require the signature of the Chairman of
PACT; and
(xvi) the Buyer shall not have authority to stop PACT from bidding
any project in the PRC whether to domestic clients (state-
owned ones or private ones) or multinationals (WFOEs or
joint ventures) and whether to industrial clients or
municipal clients. The bidding shall be with a reasonable
profit margin of PACT. The restriction is stated in view of
the competition existing or to exist between PACT and the
engineering company owned by the Buyer in the PRC.
SECTION 7.5 Confidentiality. The Parties agree that during the term
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of this Agreement, they will, keep strict confidential this Agreement
and the transaction contemplated hereby, confine the persons having access
to information regarding this Agreement and the transaction contemplated
hereby to the scope of their directors, senior management and others who
have to know such for their performance of this Agreement, and not disclose
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any information hereof to any third party except for the disclosure to
related parties or governmental authorities for obtaining the necessary
authorizations, permits, consents and approvals contained in Section 4.1,
or otherwise as required by the law. The Seller undertakes that it will
cause and assure PACT to observe the regulations hereto.
ARTICLE 8 MISCELLANEOUS PROVISIONS
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SECTION 8.1 Amendment and Modification. This Agreement may be amended,
--------------------------
modified or supplemented by a written instrument signed by the Parties.
SECTION 8.2 Waiver of Compliance; Consents. Any failure of the Buyer,
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on the one hand, or of the Seller, on the other hand, to comply with any
obligation, covenant, agreement or condition contained herein may be waived
in writing by the Seller or the Buyer, respectively, but such waiver or
failure to insist upon strict compliance with such obligation, covenant,
agreement or condition shall not operate as a waiver of, or estoppel with
respect to, any other failure.
SECTION 8.3 Validity. The invalidity or unenforceability of any
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provision of this Agreement shall not affect the validity or enforceability
of any other provisions of this Agreement, which shall remain in full
force and effect.
SECTION 8.4 Parties in Interest. This Agreement shall be binding upon
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and, except as otherwise provided herein, inure solely to the benefit
of each Party (including its legal successors), and nothing in this
Agreement, except as otherwise set forth herein, express or implied, is
intended to confer upon any other person any rights or remedies and to
create for any other person any responsibilities and obligations of any
nature whatsoever under or by reason of this Agreement.
SECTION 8.5 Notice. Notices or other communications under this
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Agreement shall be made in written, and
(i) Notices given by personal delivery shall be deemed effectively
given on the date of delivery;
(ii) Notices given by mail (by registered airmail or mail with
certificate, postage prepaid, which needs receipt) shall be
deemed effectively given once received,
(iii) Notices shall be deemed effectively given on the second
business day following the date of delivery to a recognized
courier service,
(iv) Notices given by facsimile, Email or fax shall be deemed
effectively given on the date of transmission.
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Each Party shall assure the receipt of the other party based on a common
way to conduct such communication correspondence, and the address is set
forth below,
(a) Party A: TAMWORTH INDUSTRIAL LTD.
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Attention: ▇▇▇▇▇▇ ▇▇▇▇▇
Telephone Number: (▇▇-▇▇) ▇▇▇▇ ▇▇▇▇
Fax Number: (▇▇-▇▇) ▇▇▇▇ ▇▇▇▇
(b) Party B: EURO TECH (FAR EAST) LIMITED
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Attention: ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇
Telephone Number: (▇▇▇) ▇▇▇▇ ▇▇▇▇
Fax Number: (▇▇▇) ▇▇▇▇ ▇▇▇▇
SECTION 8.6 Governing Law. This Agreement shall be governed by and
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construed in accordance with the laws of PRC.
SECTION 8.7 Dispute Settlement. Any disputes, claims or
------------------
controversies (the "Dispute") arising out of or in connection with this
Agreement shall first be amicably settled by the Parties. If no such
settlement can be reached within fifteen (15) days after the occurrence
of the Dispute, either Party shall have the right to submit the Dispute
to the China International Economic and Trade Arbitration Commission
(CIETAC), Shanghai Sub-commission for arbitration pursuant to the
Arbitration Law of PRC and CIETAC's arbitration rules then effective.
The arbitral award shall be final and binding on both Parties.
SECTION 8.8 Counterparts. This Agreement may be executed in two or
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more counterparts, each of which shall be deemed an original, but all
of which together shall constitute one and the same agreement.
SECTION 8.9 Headings. The headings of each Section under this Agreement
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are only for the purpose of reading convenience, and shall not be regarded
as parts of the Agreement, or by any mean influence the meaning or
interpretation hereto.
SECTION 8.10 Entire Agreement. This Agreement embodies the entire
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agreement and understanding of the Parties in respect of the subject matter
contained herein or therein. There are no agreements, representations,
warranties or covenants other than those expressly set forth herein or
therein. This Agreement supersedes all prior agreement and understandings
between the Parties with respect to such subject matter.
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SECTION 8.11 Assignment. This Agreement shall not be assigned by
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operation of Law or otherwise without prior written consent of the opposing
Party.
SECTION 8.12 Language. This Agreement is being executed in both English
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and Chinese language versions. The two language versions shall have the
same legal effect.
SECTION 8.13 Termination. Prior to the Closing, either Party has the
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right by 30 days notice in writing to terminate this Agreement as from
the date of service of such notice in the event the other party breaches
this Agreement.
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IN WITNESS WHEREOF, each of the Parties has caused this Agreement
to be signed on the date first above written.
SELLER: BUYER:
TAMWORTH INDUSTRIAL LTD. EURO TECH (FAR EAST) LIMITED
By: /s/▇▇▇▇▇▇ ▇▇▇▇▇ By: /s/ ▇.▇. ▇▇▇▇▇
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Name: Name:
Position: Position:
Address: British Virgin Island Address: ▇▇/▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ Road, Hong Kong
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