Exhibit 4.7
Euro Tech Holdings Company Limited
Form 6-K
For January 31, 2002
EQUITY INTEREST TRANSFER AGREEMENT
between
TAMWORTH INDUSTRIAL LTD.
and
EURO TECH (FAR EAST) LIMITED
Fangda Partners
19F HSBC Tower
101 ▇▇▇ ▇▇▇▇▇ East Road
Shanghai China
Exhibit 4.7 - Pg. 1
EQUITY INTEREST TRANSFER AGREEMENT
THIS EQUITY INTEREST TRANSFER AGREEMENT (this "Agreement"),
dated September 13, 2001, is entered into by and between TAMWORTH
INDUSTRIAL LTD., (a company established and registered in British
Virgin Island, 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 the
"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 100% equity interest in the PACT.
WHEREAS, the Seller agrees to sell to the Buyer, and the Buyer
agrees to purchase from the Seller, 30% of the aforesaid Equity
Interest hold 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
-----------------
SECTION 1.1 SALE AND PURCHASE OF THE EQUITY INTEREST. On the
terms 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 payable by the Buyer for the Equity Interest shall be
US$154,403 (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.
Exhibit 4.7 - Pg. 2
ARTICLE 2 REPRESENTATIONS AND WARRANTIES OF SELLER
----------------------------------------
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 a limited liability company with independent corporate personality,
duly registered and validly existing under the laws of British Virgin
Island. 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 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 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, free
and clear of all liens, pledges, claims and encumbrances.
ARTICLE 3 REPRESENTATIONS AND WARRANTIES OF BUYER
---------------------------------------
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 Hongkong, China. 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 the transaction
contemplated hereby and the performance of its obligations under
this Agreement (including but not limited to the payment of the
purchasing price).
Exhibit 4.7 - Pg. 3
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
-------------
SECTION 4.1 CONDITIONS PRECEDENT TO THE EFFECTIVENESS OF THIS
AGREEMENT. The Parties agree that this Agreement will take effect on
the 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:
(h) The Board of Directors of the 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;
(i) 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;
(j) The original examination and approval authority of the
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;
(k) 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 written though
haven't obtained hereto, or it's believed according to
rational reason they are to be obtained;
Exhibit 4.7 - Pg. 4
(l) No change of the PRC laws or any other event relating to
the 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;
(m) When signing this Agreement, the Parties have reached an
agreement and entered into a written contract on the
assignment which is 30% of the equity interest of the PACT
ASIA PACIFIC LIMITED("PACT ASIA"), which was invested by the
Seller and registered in British Virgin Island. The total
value of that assignment is US$133,597;
(n) Prior to the Effective date, the tangible net assets of
the PACT shall not be less than RMB 912,622 yuan; and
(o) The two checks have been received from the Buyer in favor
of the Seller for the amount of US$ 154,403 for transferring
shares of PACT and US$ 133,597 for transferring shares of
PACT ASIA. The checks will be kept by Fangda Partners until
presentation of the new original certificates of registration
of PACT and PACT ASIA showing that the shares of PACT and
PACT ASIA have been transferred.
ARTICLE 5 CLOSING CONDITIONS
------------------
SECTION 5.1 CONDITIONS TO THE OBLIGATIONS OF THE BUYER UNDER
THIS AGREEMENT. The obligations of the Buyer under this Agreement
shall be 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 of the Seller to prove that the conditions
stipulated hereto has been satisfied.
SECTION 5.2 CONDITIIONS TO THE OBLIGATIONS OF THE SELLER UNDER
THIS AGREEMENT. The obligations of the Seller under this Agreement
shall be subject to the satisfaction, at or prior to the Closing, of
the following conditions:
Exhibit 4.7 - Pg. 5
(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
-------
SECTION 6.1 CLOSING. The closing of the transaction contemplated
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 Buyer produces the check in US
Dollars for the entire Purchasing Price and the Seller accepts
hereto (The Seller shall not unduly refuse) and another transaction
mentioned in Article 4.1(g) has been completed simultaneously.
ARTICLE 7 COVENANTS
---------
SECTION 7.1 TAXES. The Buyer shall have no obligations and
responsibilities to indemnify the 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 THE PACT'S BOARD RESOLUTIONS. The
Seller agrees and undertakes that it will instruct and cause the
PACT's directors it has appointed to duly approve the resolutions of
the 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.
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 the PACT, and undertakes that
it will use its best efforts to procure such authorization,
licenses, consents and approvals. The Buyer shall provide all due
Exhibit 4.7 - Pg. 6
assistance and corporation 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 the transaction contemplated hereby shall be deemed consummated
on the date of the Closing set forth in Section 6.1.
(b) Prior to the consummation, the Seller further covenants
that,
(p) it will not apply for or cause others to apply for
amendment or cancellation of the approval certificate
and business license of the 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 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) provided that a Party sells any or all of its Equity
Interest and the related rights and benefits during
the operating and existing period of PACT after
consummation of the transaction contemplated hereby,
the other Party shall have the prevail right to
purchase. In case of third party intending to
purchase 100% shares of PACT and PACT agreeing to
sell, the Buyer shall not refuse the sale of its
shares in the case that the purchase price is higher
than the price the Buyer could offer. In the event
that the Buyer refuses to sell under the aforesaid
circumstance, the Seller has right to buy the Buyer's
30% share holding of PACT at current agreed price
plus 50% or at the price of P/E multiple of 5.2 times
(i.e. same P/E multiple of current agreed price)
pre-tax profit for the latest financial year,
whichever is higher;
(ii) the 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;
(iii) one member of the Board of Directors of the PACT
shall be appointed by the Buyer after consummation
of the transaction contemplated hereby. The number
of members from the Seller is two or three;
Exhibit 4.7 - Pg. 7
(iv) the 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;
(v) the audit report in line with the financial status
of the PACT every year will be issued by ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ after consummation of the transaction
contemplated hereby;
(vi) the PACT and PACT ASIA will continue to employ ▇▇.
▇▇▇▇▇ ▇▇▇▇▇ after consummation of the transaction
contemplated hereby, and his annual income obtained
from both of the aforesaid companies shall be not
less than USD 100,000, and salary increment needs
to be approved by both Parties;
(vii) ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇ undertakes hereby that after
consummation of the transaction contemplated hereby,
he will not engage in any business activities
relation to water treatment and wastewater
engineering services within the territory of PRC
directly or indirectly, which is through the third
party, agents, setting up any business entity or
otherwise;
(viii) Provided that opportunities arise, the Buyer is
going to acquire another environmental engineering
company, the Buyer should inform the Seller. In case
that the nature of business is competitive with PACT,
the Seller has right to acquire the Buyer's 30% share
holding in PACT at current agreed price plus 50%
(plus 10% if such acquisition takes place within 1
year after the completion date) or at price of P/E
multiple of 5.2 times (i.e. same P/E multiple of
current agreed price) pre-tax profit for the latest
financial year, whichever is higher;
(ix) the 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;
(x) the PACT shall provide quarterly analysis of Orders
received, Sales (and Profits) and Backlog to the
Buyer after consummation of the transaction
contemplated hereby;
(xi) the 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);
(xii) the directors' bonus scheme of the PACT must be
approved by the Parties and 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;
Exhibit 4.7 - Pg. 8
(xiii) the PACT's existing bonus scheme to ▇▇ ▇▇▇ Xiao Hong
(10% share of net profits) will be cancelled and the
Seller has the option to transfer 10% of their shares
to ▇▇ ▇▇▇ after consummation of the transaction
contemplated hereby.
SECTION 7.5 CONFIDENTIALITY. The Parties agree that during the
term 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 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 the PACT to observe the regulations hereto.
Disseminating news to the public by the Buyer to comply with the
Material News Requirements as stipulated by NASDAQ Regulatory
Requirements will be the exception.
ARTICLE 8 MISCELLANEOUS PROVISIONS
------------------------
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, 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
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 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
Agreement shall be made in written, and
(i) Notices given by personal delivery shall be deemed
effectively given on the date of delivery;
Exhibit 4.7 - Pg. 9
(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.
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.
-----------------------------------
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇
Telephone Number: ▇▇▇▇-▇▇▇▇▇▇▇▇▇▇▇
Fax Number: ▇▇▇▇-▇▇-▇▇▇▇▇▇▇▇
(b) Party B: EURO TECH (FAR EAST) LIMITED
---------------------------------------
Attention: ▇. ▇. ▇▇▇▇▇
Telephone Number: ▇▇▇-▇▇▇▇▇▇▇▇
Fax Number: ▇▇▇-▇▇▇▇▇▇▇▇
SECTION 8.6 GOVERNING LAW. This Agreement shall be governed by
and 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 more counterparts, each of which shall be deemed an original, but
all of which together shall constitute one and the same agreement.
Exhibit 4.7 - Pg. 10
SECTION 8.9 HEADINGS. The headings of each Section under this
Agreement 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 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.
SECTION 8.11 ASSIGNMENT. This Agreement shall not be assigned by
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 and Chinese language versions. The two language versions
shall have the same legal effect.
SECTION 8.13 TERMINATION. Either Party has the 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.
IN WITNESS WHEREOF, each of the Parties has caused this
Agreement to be signed on the date first above written.
Exhibit 4.7 - ▇▇. ▇▇
(▇▇ text on this page)
SELLER: BUYER:
TAMWORTH INDUSTRIAL LTD. EURO TECH (FAR EAST) LIMITED
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇ By: /s/ ▇. ▇. ▇▇▇▇▇
------------------------------ --------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇ Name: ▇. ▇. ▇▇▇▇▇
Position: Director and Chairman Position: Chairman
Address: British Virgin Island Address: ▇▇/▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇.▇. ▇▇▇ ▇▇▇ 65 ▇▇▇▇ ▇▇▇▇ Hang Road, Hongkong
Offshore Incorporation Centre
Roadtown, Totola ▇▇▇
Exhibit 4.7 - Pg. 12