Exhibit 10.39
Share Transfer Agreement
This Share Transfer Agreement (hereinafter referred to as "This
Agreement") is made on December 31, 2005 in Tai'an City, Shandong Province, the
People's Republic of China (hereinafter referred to as "PRC")
BETWEEN:
THE ASSIGNOR: Singapore Eastern Nanomaterials Holdings Pte (hereinafter
referred to as the "Party A"), a company of limited liability registered and
founded under the laws of Singapore.
Registered office: Singapore
Legal Person: Chen Xiangzhi
AND
THE ASSIGNEE: ▇▇▇▇▇ ▇▇▇▇▇ Limited (hereinafter referred to as "Party B"),
a company of limited liability registered and founded under the laws of British
Virgin Islands.
Registered office: British Virgin Islands
Authorized representative: Zhang Xueyi
WHEREAS:
1. Shandong Bangsheng Chemical Co., Ltd (hereinafter referred to as
"Bangsheng Chemical") is a company duly organized, validly existing and in good
standing as a wholly foreign funded enterprise under the laws of the P.R.C, with
its registered office at ▇▇. ▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇'▇▇ ▇▇▇▇, registered
capital RMB 24,500,000 yuan.
2. Party A legally owned 100% registered capital of Bangsheng Chemical,
that is, RMB 24,500,000 yuan.
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3. Party A intends to transfer the 100% registered capital of Bangsheng
Chemical owned by Party A to Party B. ("Share transfer", the 100% registered
capital of Bangsheng Chemical and all relevant rights, interests and
obligations). Party B intends to accept the shares. After the completion date of
the shares transfer, Party B will possess the 100% registered capital of
Bangsheng Chemical.
4. Through friendly consultation, both parties jointly agree to cooperate
and promote the sale and purchase of shares smoothly.
Regarding the sale and purchase of shares, both Party A and Party B enjoy the
rights and assume the obligations thereunder, and enter into the agreement as
follows:
Article 1 Shares Transfer
1. According to provisions of this Agreement, Party A agrees to
transfer the shares owned by Party A to Party B after the completion
date of the shares transfer.
2. Party B agrees to accept the shares transferred by Party A according
to the stipulations of this Agreement.
3. Upon the Agreement becoming effective, Party B would be entitled to
exercise the rights of the shareholders as well as take full
obligations. Party A shall not enjoy any rights and assume any
obligations and responsibilities relating to the transferred shares,
unless this Agreement otherwise stipulates.
Article 2 Price of the Shares and Payment Terms
1. Party A and Party B jointly confirm that Party B accepts the
consideration of transferred shares in this Agreement, and Party B
pays Party A in cash. The consideration of transferred shares is USD
3,035,600.00 after consultation between Party A and Party B.
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2. After the completion date of shares transfer, Party B invests RMB
24,500,000 yuan, and will possess 100% registered capital of
Bangsheng Chemical. Party A will not own any shares of Bangsheng
Chemical.
3. Party A and Party B jointly agree that Party B shall pay in full
within [ ] days to Party B after the completion date of shares
transfer.
Article 3 Representations, Warranties and Undertakings of Party A
Party A hereby represents, warrants and undertakes to Party B as follows:
1. Party A has full power and authority to enter into this Agreement
and perform all rights and obligations of this Agreement, and this
Agreement constitutes valid and binding obligations on it.
2. Party A legally owns the Transferred Shares, as well as the right to
deal with all or any part of the shares entirely and effectively;
and that prior to any transfer it will obtain all necessary consents
such that the Shares can be transferred to Party B at the effective
time of the transfer, free and clear of all liens and encumbrances
whatsoever.
3. There is no fact not disclosed to Party B by Party A that is related
to the transfer of assets, and may affect the establishment of this
Agreement and will change the original meaning of any terms of this
Agreement once being disclosed.
4. Party A shall deal with other matters that this Agreement has not
stipulated according to the laws and regulations of Singapore and
the P.R.C along with Party B.
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Article 4 Representations, Warranties and Undertakings of Party B
Party B hereby represents, warrants and undertakes to Party A as follows:
1. Party B has full power and authority to enter into this Agreement
and perform all rights and obligations of this Agreement, and this
Agreement constitutes valid and binding obligations on it.
2. Party B agrees that he shall pay the consideration of the
transferred shares to Party A in full on time.
3. Party B shall deal with other matters that this Agreement has not
stipulated according to the laws and regulations of the P.R.C along
with Party A.
Article 5 The Completion Date of Shares Transfer
The shares transfer should be completed on the date that all following terms and
conditions fulfilled. The date is the completion date.
1. This Agreement is signed by the authorized representatives of Party
A and Party B.
2. The Shares transfer of this Agreement is approved by the general
meeting of shareholders and Board of directors of Party A.
3. This Agreement is approved by the authority of Bangsheng Chemical,
the contents of the approval shall include:
(1) The approval to this agreement and relevant matters;
(2) Fully authorize and let the General Manager of Bangsheng
Chemical handle the shares transfer matters and apply to
relevant Administration for Industry and Commerce and Foreign
Investment Administration.
4. The shares transfer under this Agreement has been approved by
Foreign Investment Administration and finished the change of
Industrial and Commercial Registration.
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Article 6 Confidentiality
Except as otherwise stipulated in relevant laws, regulations, articles of
association of Bangsheng Chemical, or there are other written agreements between
the two parties of this Agreement, no party herein shall, without the consent of
the other party, disclose to any third party any information included in this
Agreement before the completion of shares transfer under this Agreement.
Article 7 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 8 Liabilities for Breach of this Agreement
Should either Party A or Party B breach any clause, or break any representation,
warranty or undertaking made in this Agreement, the party in breach shall
compensate the observant party for all the losses, including but not being
limited to the fees paid, or the expenses spent by the observant party as a
direct or indirect result of the breach of this agreement by the party in breach
(including but not being limited to reasonable court fees, arbitration fee and
attorney fees etc paid by the other party).
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Article 9 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, the disputes shall be submitted to arbitration.
2. Any disputes arising from the execution of, or in connection with this
Agreement shall be submitted to 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 binding upon both parties. The arbitration shall be done in Beijing, China.
3. As stipulated by relevant laws, if any clause of this Agreement is
declared invalid by the arbitral tribunal, it shall in no manner affect the
validity and performance of other clauses of this Agreement.
Article 10 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.
Article 11 Rights
Not being agreed by the other party in writing, any party should not transfer
the rights enjoyed according to this Agreement. Each party's successors,
authorized assignees are bound to this Agreement.
Article 12 Force Majeure
1. Force majeure means any unforeseeable events beyond the parties' control
which prevent the performance of 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.
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2. Should either of the parties to this Agreement be prevented from executing
the Agreement by Force majeure, the prevented party shall notify the other party
by the 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
terminate the contract or to delay the execution of the contract.
Article 13 Text
This Agreement is made in sextuplicate in Chinese, and each Party shall keep two
copies. The other two copies are for handling approval and change of Industrial
and Commercial Registration.
Every original copy has equal legal effect. This Agreement shall become
effective from the date that Party A and Party B signed and relevant Authorities
approved this Agreement.
PAGE FOR SIGNATURES
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Party A: Eastern Nanomaterials Holdings Pte Ltd
Authorized Representative: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇
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Party B: ▇▇▇▇▇ ▇▇▇▇▇ Limited
Authorized Representative: /s/ Zhang Xueyi
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