Exhibit 4.8
Euro Tech Holdings Company Limited
Form 6-K
EQUITY INTEREST TRANSFER AND SHAREHOLDERS' AGREEMENT
between
TAMWORTH INDUSTRIAL LTD.
and
EURO TECH (FAR EAST) LIMITED
and
PACT ASIA PACIFIC LIMITED
Exhibit 4.8 - Pg. 1
EQUITY INTEREST TRANSFER AND SHAREHOLDERS' AGREEMENT
THIS EQUITY INTEREST TRANSFER AND SHAREHOLDERS' AGREEMENT (this
"Agreement"), dated 11.22, 2001, is entered into by and between
TAMWORTH INDUSTRIAL LTD., (a company established and registered in
the British Virgin Islands ("BVI"), hereinafter referred to as the
"Seller"), 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")
and PACT ASIA PACIFIC LIMITED (a company established and registered
in the BVI, with its registered office at the offices of Offshore
Incorporations Limited, P.O. Box 957, Offshore Incorporations
Centre, Road Town, Tortola, BVI, hereinafter referred to as
"PACT").
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, PACT is a company with authorized capital of US$50,000
divided into 50,000 shares of US$1.00 each and paid-up capital of
US$10,000 and is 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 PACT
which consists of 10,000 shares each of US$1.00 par value ("Equity
Interest").
WHEREAS, the Seller agrees to sell to the Buyer, and the Buyer
agrees to purchase from the Seller, 30% of the 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 and PACT 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 Transferred, 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 Transferred shall
be US$133,597 (the "Purchase Price").
Exhibit 4.8 - 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
the BVI. 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 completion of the transaction contemplated hereby and the
performance of its obligations under this Agreement.
SECTION 2.2 AUTHORICATION 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
complete 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
completion 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 on 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
---------------------------------------
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, 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 completion of the transaction
contemplated hereby and the performance of its obligations under
this Agreement (including but not limited to the payment of the
Purchase Price).
Exhibit 4.8 - 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
complete 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 completion
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 CONDITIONS PRECEDENT TO EQUITY PURCHASE
---------------------------------------
SECTION 4.1 CONDITIONS PRECEDENT: The Parties agree that
Closing of this transaction as specified in Article 6 shall be
conditional on the fulfillment of the following:
(a) that 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 certified copies of the executed resolutions are
given to both Parties;
(b) that the Parties have obtained corporate authorization to
enter into this Agreement and the transaction contemplated
hereby in the manner stipulated in the Articles of
Association and relevant organization documents, and have
provided such executed documents of authorization to the
other Party;
(c) that satisfactory evidence has been provided to the Buyer
that all the permits, agreements, approval and authorization
of other governmental bodies which the Parties have agreed as
necessary or useful for the performance of the transaction
contemplated hereby have been obtained, unless the Buyer
waives them in writing;
(d) that no changes of BVI laws or any other event relating
to PACT or the transaction contemplated hereby, which may
result in significant unfavorable influence on the Buyer's
interests under this Agreement as well as its ability to
perform its obligations under this Agreement, will occur
after the date of this Agreement until the Closing Date;
(e) that the Parties have reached agreement and have entered
into a written contract for the transfer of 30% of the equity
interest of the Yixing PACT Environmental Technology Co.
Ltd.("YIXING PACT") owned by the Seller and registered in the
People's Republic of China from the Seller to the Buyer (the
"China Contract") for a consideration of US$154,403, and that
Exhibit 4.8 - Pg. 4
the conditions precedent of that China Contract have been
fulfilled or waived by the Buyer;
(f) evidence satisfactory to the Buyer that the Net Tangible
Assets of PACT shall not be less than RMB 791,352 yuan on and
before the Closing Date, the tangible net assets of PACT
being determined by referring to PACT's management accounts
as at Closing Date;
For the purposes of this subsection (f), "Net Tangible
Assets" means total tangible assets minus total liabilities.
(g) the service agreement between PACT and ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇
("▇▇▇▇▇▇") in the form mutually agreed by the Buyer and
Seller which sets out among other things, the following key
terms:
* that PACT will continue to employ ▇▇▇▇▇▇ after completion
of the transaction contemplated hereby;
* that George's annual income obtained from PACT, together
with his annual income from YIXING PACT shall be not less
than USD 100,000 and that any salary increment needs to be
approved by both Parties;
* that ▇▇▇▇▇▇ undertakes that he will not engage in setting
up any business activities with another company in relation
to water treatment and wastewater engineering services
within the territory of PRC either directly or indirectly
through third party agents and that he will keep the
promise during the time he work for PACT and YIXING PACT
and any company/companies which have equity interest of
PACT and YIXING PACT and its successor (if possible) and
for one year after he leave such company/companies;
be entered into on or before the Closing Date.
SECTION 4.2 WAIVER: The Buyer may waive all or any of the
conditions precedent in Section 4.1 in whole or in part at any time by
notice in writing to the Seller.
SECTION 4.3 TERMINATION DATE: If all the conditions precedent in
Section 4.1 are not fulfilled or waived on or before January 31, 2002 (or
such later date as the parties may agree in writing) (the "Termination
Date") none of the Parties shall have any rights or obligations under
this Agreement (so that no Party shall have any claims against the others
for costs, damages, compensation or otherwise) except for the provisions
of Article 5 (Payment held by Fangda), Section 7.7, Sections 8.6, 8.7 and
8.10 which shall continue to apply.
Exhibit 4.8 - Pg. 5
SECTION 4.4 REASONABLE ENDEAVOURS: The Seller, the Buyer and
PACT shall use all reasonable endeavours to procure that the conditions
in Section 4.1 are fulfilled on or before the Termination Date.
ARTICLE 5 PAYMENT HELD BY FANGDA PARTNERS
-------------------------------
SECTION 5.1 PAYMENT HELD BY FANGDA PARTNERS. The Buyer shall
deliver two cheques within 7 days after the execution of this
Agreement in favor of the Seller to Fangda Partners for an amount of
US$ 133,597 as consideration for the Equity Interest Transferred to
the Buyer and US$ 154,403 as payment for transferring shares of
YIXING PACT to the Buyer. The Parties agree that the cheques will be
kept by Fangda Partners until the Closing occurs in accordance with
Article 6 or in the event the Termination Date has passed, the 2
cheques shall forthwith be returned to the Buyer.
ARTICLE 6 CLOSING
-------
SECTION 6.1 CLOSING. Subject to Section 4.3 above, the closing
date of the transaction contemplated hereby shall take place on the
earliest practicable date at the place agreed by the Parties after
all conditions precedent in Section 4.1 have been fulfilled or
waived by the Buyer pursuant to Section 4.2 (the "Closing Date").
(a) On the Closing Date, the Seller shall deliver to the Buyer:
(i) a copy of the service agreement duly executed by PACT and
▇▇▇▇▇▇ as described in Section 4.1(g);
(ii) certified copy of the share register of PACT showing that
the Buyer as the registered holder of the Equity Interest
Transferred; and
(iii) certified copy of the certificate of registration of
YIXING PACT showing the Buyer as the registered holder of
YIXING PACT of 30% equity interest of YIXING PACT as
described in the China Agreement;
(b) On the Closing Date, PACT shall instruct its registered agent
to file a certified copy of the share register of PACT with the
Registrar of Companies pursuant to Section 111A of the International
Business Companies Ordinance 1984 (as amended).
(c) Subject to the Buyer having received the documents described
in sub-section (a) above and confirmation in writing from the
registered agent of PACT that the share register of PACT has been
filed with the Registrar of Companies, it shall instruct Fangda
Partners to release the 2 cheques to the Seller as payment for the
transfers.
Exhibit 4.8 - Pg. 6
ARTICLE 7 PRE-CLOSING AND POST-CLOSING ACTS
---------------------------------
SECTION 7.1 TAXES. The Parties agree that the Buyer shall have
no obligations and 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 BVI laws and regulations.
SECTION 7.2 OBTAINING 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 PACT's
Board of Directors authorizing this Agreement and the transaction
contemplated hereby in a proper manner within 5 working days after
the execution of this Agreement.
SECTION 7.3 PROCUREMENT OF GOVERNMENT APPROVALS. The Seller
agrees to be responsible for applying to the 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
corporation hereto on reasonable demand by the Seller and bear the
expenses of formalities for procuring such authorization, licenses,
consents and approvals.
(a) SECTION 7.4 SELLER'S NON-INTERFERENCE. 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 promises not to 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;
SECTION 7.5 OTHER TERMS. The Parties and PACT agree that should
the Agreement be completed, the Parties and PACT are to regard the
following commitments as the binding terms and conditions which
shall survive Closing,
(i) that should a Party intend to sell any or all of its
shares in PACT and the related rights and benefits during
the operating and existing period of PACT to a third party
after Closing, the other Party shall have the right of
first refusal executable by giving notice to the Party
Exhibit 4.8 - Pg. 7
intending to sell the shares within 7 days of being
notified of the intended sale to purchase the shares in
PACT offered for sale to the third party at that price.
In the event that the Buyer refuses to sell under the
aforesaid circumstance, the Seller has the right to buy
the Buyer's Equity Interest Transferred at the price of
US$200,595.50 or at the price of 5.2 times the Pre-Tax
Profit for the latest financial year, whichever is higher;
For the purposes of this Section 7.5, "Pre-Tax Profit"
means net profit before deducting profits tax.
(ii) that one member of the Board of Directors of PACT shall
be nominated by the Buyer after completion of the
transaction contemplated hereby. The number of directors
nominated by the Seller is two;
(iii) that PACT distributes at least 35% of its Net Profits as
dividend for every financial year after completion of the
transaction contemplated hereby, subject to compliance
with the laws and regulations of BVI;
For the purposes of this subsection (iii), "Net Profits"
means profits after deducting profits tax.
(iv) the accounts of PACT every year shall be audited by
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ or some other international accounting
firm agreed by the Parties after completion of the
transaction contemplated hereby;
(v) in the event opportunities arise and the Buyer intends to
acquire another environmental engineering company
("Intended Acquisition"), the Buyer should inform the
Seller of this intention. In the event the nature of
business of the Intended Acquisition is competing with
PACT, the Seller has the right to acquire the Buyer's
Equity Interest Transferred at a price of US$200,395.50
(or US$146,956.70 if such acquisition takes place within 1
year after the Closing Date) or at the price of 5.2 times
the Pre-Tax Profit (as defined in Section 7.5(i) for the
latest financial year, whichever is higher);
(vi) PACT shall provide monthly financial statements
(including Income Statement, Balance Sheet and Cash Flow
Statement etc.) to the Buyer after completion of the
transaction contemplated hereby within 7 days from the
last day of the previous month;
(vii) PACT provide quarterly analysis of Orders received,
Sales (and Profits) and Backlog to the Buyer after
completion of the transaction contemplated hereby within 7
days from the last day of the previous quarter;
For purposes of this subsection (vii), "Orders" means
sales orders received from customers, "Sales" means
invoiced value of goods and services supplied to
Exhibit 4.8 - Pg. 8
customers, "Profits" means sales value minus costs of
sales and "Backlog" means incomplete orders.
(viii) that PACT does 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);
(ix) that the implementation of PACT's directors' bonus scheme
and any changes thereafter, any deviation of the existing
employees' bonus scheme (the existing scheme as set out in
Annex 1) and any changes to the share register must be
approved by both Parties;
SECTION 7.6 CANCELLATION OF ▇▇ ▇▇▇ XIAO HONG'S BONUS SCHEME WITH
PACT. The Parties agree to procure that the directors of PACT cancel
its existing bonus scheme (10% share of net profits) with ▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇ immediately on the Closing Date and that the Seller be
given the option to transfer 10% of its shares to ▇▇ ▇▇▇ anytime
after the Closing Date. In the event the Seller elects to exercise
its option to transfer any of its shares to ▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇, the
Seller undertakes to procure that ▇▇ ▇▇▇ Xiao Hong enters into a
deed of adherence (in a form acceptable to the Parties) which binds
her to the terms of the Agreement before effecting the transfer.
SECTION 7.7 CONFIDENTIALITY. The Parties and PACT agree that
they will keep the strictest confidence on this Agreement and the
transaction contemplated hereby, and confine access to information
regarding this Agreement and the transaction contemplated hereby to
their directors, senior management and others who may be required to
know such information to enable them to perform 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 law.
For the avoidance of any doubt, disseminating news to the public by
the Buyer to comply with the Material News Requirements as
stipulated by NASDAQ Regulatory Requirements is an 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.
Exhibit 4.8 - Pg. 9
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 in written form, 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.
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: ▇▇▇-▇▇▇▇▇
Exhibit 4.8 - Pg. 10
(c) Party C: PACT ASIA PACIFIC 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 the British Virgin
Islands.
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.
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 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 4.8 - ▇▇. ▇▇
(▇▇ text on this page)
SELLER: BUYER:
TAMWORTH INDUSTRIAL LTD. EURO TECH (FAR EAST) LIMITED
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇ By: /s/ ▇. ▇. ▇▇▇▇▇
---------------------------- --------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇ Name: ▇. ▇. ▇▇▇▇▇
Position: Chairman Position: Chairman
Address: British Virgin Islands Address: ▇▇/▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇.▇. ▇▇▇ ▇▇▇ 65 ▇▇▇▇ ▇▇▇▇ Hang Road, Hong Kong
Offshore Incorporation Centre
Roadtown, Tortola
PACT:
PACT ASIA PACIFIC LIMITED
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
---------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇
Position: Chairman
Address: British Virgin Islands
P.O. Box 957
Offshore Incorporation Centre
Roadtown, Tortola
Exhibit 4.8 - Pg. 12