EXHIBIT 4.5
Dated the 20th day of September , 2004.
DF CHINA TECHNOLOGY INC.
(the "Vendor")
and
GUMPTION TRADING LTD.
(the "Purchaser")
and
GUANGZHOU ▇▇▇▇▇▇▇▇▇▇ PAPER LIMITED
("GDPL")
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DEED OF CONFIRMATION
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THIS DEED OF CONFIRMATION is made the 20th day of September , 2004
BETWEEN :-
1. DF CHINA TECHNOLOGY INC., a company incorporated in the British Virgin
Islands, whose shares are listed on the Nasdaq SmallCap Market and now on
OTC Bulletin Board, whose registered office is situate at Craigmur
▇▇▇▇▇▇▇▇, P.O. Box 71, Road Town, Tortola, British Virgin Islands (the
"Vendor") of the first part;
2. GUANGZHOU ▇▇▇▇▇▇▇▇▇▇ PAPER LTD., a company incorporated in The People's
Republic of China, whose registered office is situate at Taiping
Industrial Zone, Conghua, Guangzhou, Guangdong Province, The People's
Republic of China ("GDPL") of the second part; and
3. GUMPTION TRADING LIMITED, a company incorporated in the British Virgin
Islands, whose registered office is situate at ▇.▇. ▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ (the "Purchaser") of the third part
WHEREAS :-
1. By an Agreement for the Sale and Purchase of Shares in certain
Subsidiaries of DF China Technology Inc. and certain Assets in the PRC
dated the 26th day of January, 2004 signed between the Vendor of the first
part, the Purchaser of the second part and GDPL of the third part (the
"Agreement"), the Vendor agreed to sell the Sale Shares (as defined in the
Agreement), GDPL agreed to sell the PRC Assets (1) (as defined in the
Agreement) and the Purchaser agreed to purchase the Sale Shares and the
PRC Assets (1) under the terms and conditions of the Agreement.
2. There are some uncertainties as to the liabilities of the Purchaser under
the Agreement.
3. The parties hereto have agreed to enter into this Deed for the purpose of
clarifying and defining the liabilities of the Purchaser under the
Agreement.
NOW THIS DEED WITHNESSETH as follows :-
1. In consideration of the premises, the parties hereto hereby rectify and
confirm the Agreement in the manner as follows :-
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(a) The definition of "Contingent Liabilities" on page 2 of the
Agreement be deleted in its entirety and replaced by the
following :-
"Contingent Liabilities" means the liabilities incurred by the
Vendor and the Subsidiary Companies prior to the Completion Date
even if not disclosed in the Audited Accounts and/or the Management
Accounts;"
(b) The definition of "Employees' Entitlements" on page 2 of the
Agreement be deleted in its entirety and replaced by the
following : -
"Employees' Entitlements" means all liabilities of the Subsidiary
Companies to the Existing Employees which have been or shall be
incurred and/or payable by the Subsidiary Companies on or before the
Completion Date, including but not limited to all salaries,
emoluments, benefits, long service payments, severance payments, all
contributions required to be made by the Subsidiary Companies
pursuant to the Central Pension Scheme operated by the government of
The People's Republic of China and any other pension scheme in
respect of the Subsidiary Companies, and all claims and demands by
any former employees of the Subsidiary Companies or Existing
Employees whether under any legislation relating to employment in
The People's Republic of China or the Employment Ordinance Cap.57 of
the Laws of Hong Kong or any other similar legislation whether in
Hong Kong or The People's Republic of China;"
(c) Clause 4.02 on page 4 of the Agreement be deleted in its entirety
and replaced by the following :-
"The Purchaser hereby agrees, undertakes and warrants to pay and
discharge all claims (including but not limited to taxation claims),
demands, liabilities, damages, costs and expenses (including all
legal expenses reasonably incurred) in relation to or arising from
or in connection with any and all of the Leased Back Assets. The
Purchaser undertakes, unconditionally and irrevocably, to indemnify
and keep GDPL indemnified on a full indemnity basis, and hold GDPL
harmless from and against all claims (including but not limited to
taxation claims), demands, liabilities, damages, costs and expenses
(including all legal expenses reasonably incurred) which GDPL may
sustain, suffer, or incur arising from or in connection with the
Lease Back Assets. This indemnity shall remain in full force and
effect notwithstanding Completion."
(d) Clause 8.01(iii) on page 8 of the Agreement be deleted in its
entirety and replaced by the following :-
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"Without prejudice to or limiting the generality of the foregoing
and/or any other rights and remedies of the Vendor and GDPL
hereunder or otherwise, in the event that the Vendor and/or GDPL is
required to pay (i) any such costs and expenses for such removal and
delivery aforesaid; and/or (ii) any duties, taxes, penalties and
liabilities relating to the aforesaid PRC Assets and PRC Assets (1),
to the government or authorities of The People's Republic of China
and/or Hong Kong, the Purchaser hereby undertakes and warrants that
it shall forthwith on demand of the Vendor and/or GDPL pay to the
Vendor and/or GDPL (as the case may be) a sum equal to the same
amount as the Vendor and/or GDPL is required to pay as aforesaid.
This Clause shall remain in full force and effect notwithstanding
Completion."
(e) Clause 9.02 on page 9 of the Agreement be deleted in its entirety
and replaced by the following :-
"For avoidance of doubt, notwithstanding anything contained in this
Agreement to the contrary, the Vendor shall not be responsible for
the Employees' Entitlements or any and all claims of wrongful
dismissal or redundancy payment, severance payment or otherwise
which may be brought by any Existing Employees or former employees
against the Subsidiary Companies in respect of any period or periods
of employment with the Subsidiary Companies before the Completion
Date and the Purchaser undertakes, unconditionally and irrevocably,
to indemnify and keep the Vendor indemnified on a full indemnity
basis, and hold the Vendor harmless from and against the Employees'
Entitlements, and the claims aforesaid and costs and expenses
(including all legal expenses reasonably incurred) which the Vendor
may sustain, suffer, or incur as a result of or arising out of the
failure on the part of the Subsidiary Companies to pay the
Employees' Entitlements or the claims aforesaid. This indemnity
shall remain in full force and effect notwithstanding Completion."
(f) Clause 9.04 on page 9 of the Agreement be deleted in its entirety
and replaced by the following :-
"Notwithstanding anything contained herein, the Purchaser
undertakes, unconditionally and irrevocably, to indemnify and keep
the Vendor indemnified on a full indemnity basis, and hold the
Vendor harmless from and against all claims (including but not
limited to taxation claims), demands, liabilities, damages, costs
and expenses (including all legal expenses reasonably incurred)
which the Vendor may sustain, suffer, or incur arising from or in
connection with the Subsidiary Companies and/or its/their business
activities or operations. This indemnity shall remain in full force
and effect notwithstanding Completion."
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(g) The following shall be added as Clause 9.06 :-
"The Purchaser hereby represents, warrants and undertakes that the
Purchaser will on demand of the Vendor forthwith pay and discharge
any and all liabilities of the Vendor incurred by the Vendor prior
to Completion (whether actual or contingent). For the avoidance of
doubt, the Purchaser shall have no claim or any recourse against the
Vendor in respect of any payment or discharge of any liability of
the Vendor aforesaid. This Clause shall remain in full force and
effect notwithstanding Completion."
2. Save as varied or rectified as aforesaid, the Vendor, GDPL and the
Purchaser hereby agree and declare that the terms and conditions of the
Agreement in so far as the same are still subsisting and capable of taking
effect shall remain in full force and effect and all the provisions
covenants and terms contained, incorporated and/or implied therein shall
in all respect continue to be binding on the Vendor, GDPL and the
Purchaser (as the case may be).
3. The parties hereto hereby agree and declare that this Deed shall operate
to take effect as from the date of the Agreement.
4. It is expressly declared and agreed that nothing herein shall prejudice or
affect the rights of the parties in respect of any antecedent breach which
might have been committed by the other party or parties prior to the
execution of this Deed and it is hereby further declared that all such
rights shall be enforceable by any party under the Agreement (as amended
by this Deed).
5. This Deed shall be governed by and construed in accordance with the laws
of Hong Kong and the parties hereto hereby irrevocably submit to the
non-exclusive jurisdiction of the Courts of Hong Kong.
IN WITNESS whereof the parties hereto have executed this Deed the day and
year first above written.
SEALED with the Common Seal of the )
Vendor and signed by Dr. Fan Di, its director )
duly authorized by the board, in the presence )
of :- )
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SEALED with the Common Seal of GDPL )
and signed by Zhou ▇▇ ▇▇▇▇, its director, duly )
authorized by the board, in the presence of :- )
SEALED with the Common Seal of the )
Purchaser and signed by ▇▇ ▇▇▇▇, its director )
duly authorized by the board, in the presence )
of :- )
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