Amendedand Restated Asset Purchase Agreement between ShenyangTaiyu Machinery and Electrical Equipment Co., Ltd andSiping Beifang Heat Exchanger Manufacture Co., Ltd June16, 2009 Shenyang

 

 

 

 

 

 

 

 

 

 

 

 

 

This amended and restated Asset Purchase Agreement (the “Agreement”) amends and restates that certain Asset Acquisition Agreement between Siping Beifang Heat Exchanger Manufacture Co., Ltd and Shenyang Taiyu-Machinery and Electrical Equipment Co., Ltd dated May 27, 2009. Siping Beifang Heat Exchanger Manufacture Co., Ltd has decided to sell certain plant and equipment to Shenyang Taiyu-Machinery and Electrical Equipment Co., Ltd after friendly consultation by both parties.

 

The two parties have reached this agreement on the acquisition of the Subject Assets (as defined below) and both parties agree to implement the assets sale under the agreement according to the rights and obligations as stipulated in the agreement.

 

I.	Parties to the agreement

 

Party A: Siping Beifang Heat Exchanger Manufacture Co., Ltd

 

Legal Representative: Li Shufeng

 

Party B: Shenyang Taiyu-Machinery and Electrical Equipment Co., Ltd

 

Legal Representative: Wang Jun

 

II.	Subject Assets

 

Both parties agree that Party A undertakes and ensures to transfer to Party B certain plant and equipment specified on the asset list (except for credit and debt) determined jointly by both parties as of the date of signing the agreement when the assets under the agreement satisfying the legal transfer conditions according to the terms and conditions of this agreement (the “Subject Assets”). Party A covenants and agrees that it is the sole owner of all of the Subject Assets and can transfer such assets to Party B free and clear of any lien, mortgage or other encumbrance. The Subject Assets shall include:

 

1.

The land, building and land attachments to which Party A has the property right or has not obtained the property right thereof but already acquired and possessed legally (including those Party A acquired by contract) and other associated properties that Party A has legally possessed but has not acquired or used;

 

2.	All production equipment, auxiliary equipment and spare parts;

 

3.	Some of the raw materials

 

 

 

The Subject Assets include but are not limited to those listed above and shall be subject to the final check jointly by both parties against the asset list provided by Party A (the “Asset List”). With regard to the asset listed in the Asset List, besides the responsibility of ensuring the assets under the Agreement do not have any defects, Party A shall be responsible for:

 

a.

providing Party B the original of ownership certificates of the land and buildings or the copies acceptable for Party B, the formalities for construction, approval and filing and other relevant documents if the ownership certificates are not available, complete technical data related to land and building projects including drawings for future maintenance and repair after taking over;

 

b.	withdrawing the mortgage or other encumbrances if the Subject Assets have mortgage or other encumbrances so that the Subject Assets are delivered free and clear of any liens, mortgages or any encumbrances;

 

c.	ensuring that the board of shareholders and board of directors of the Party A have made unanimous resolution on the sale of the Subject Assets;

 

d.	ensuring that the creditors of Party A unanimously agree with the sale, and undertaking the full liability and compensating Party B for all the losses including all the due benefits if the agreement can’t be fulfilled due to the object raised by Party A’s creditors.

 

Party A shall ensure the truth of the above terms and documents and that the assets carried on the Asset List shall not have material changes after signing the agreement.

 

III.	Continual assistance by Party A after the acquisition of the assets

 

To ensure the operation by the management of Party B and the successful takeover of Party A’s Subject Assets, Party A undertakes that its board of shareholders and board of directors will give Party B the assistance regarding the orderly transfer of Subject Assets by Siping Beifang Heat Exchanger Manufacture Co., Ltd including, without limitation, Party B’s right to decide on the use, transfer or disposal of the Subject Assets of Party A (excluding original credit and debt, all credits and debts of the predecessor company shall be disposed and cleared off by Party A prior to the signing of the agreement);

 

 

 

To ensure the smooth implementation of the above work, Party A shall undertake the following responsibilities:

 

1.

Divestiture, disposal and liquidation of all credits and debts prior to the signing of the agreement within a half year after the commencement of the acquisition of Subject Assets. Any disputes arising from the credit and debt during the acquisition shall be dealt with by Party A and if the acquisition is hindered due to the disputes Party A shall be held responsible;

 

2.	Party A shall be responsible for all affairs that need the legal representative to solve in person;

 

3.	Party A shall be responsible for providing Party B all information, materials and reports needed for operation and ensure the truth, completeness and timeliness thereof;

 

4.	Party A shall be responsible for handling the formalities for the transfer of all Subject Assets ;

 

IV.	Acquisition price

 

After friendly consultation by both parties, as for the above Subject Assets  Party B shall pay RMB 54 million yuan (RMB fifty-four million yuan) to Party A in cash.  The specific description of the consideration for the acquisition is as follows:

 

1.	The acquisition price excludes all the credits and debts of Party A prior to the signing of the agreement and Party A shall be responsible for the original credits and debts;

 

2.

Before Party B entering Party A for management the business in trust, the raw material costs and relevant sales expense that have been put in for the contracts that have not been completed shall be disposed after the confirmation by both parties. For the contracts that have been completed, Party A shall be responsible for the settlement of the payment for goods and tax refunds and the specific time and method shall be separately discussed by both parties;

 

3.	Party B shall bear all the taxes and fees caused by the acquisition;

 

4.

In case any part of the asset listed in the Asset list can’t be transferred to Party B according to the agreement due to Party A’s reason (except those that are transferred according to the writing agreement reached by both parties in terms of specific transfer method and time), an agreement shall be reached additionally by both parties through negotiation to reduce the quantity of Subject Assets to be acquired and the payment correspondingly.

 

V.	Implementation of acquisition

 

This agreement is implemented after the boards of directors of Party A and Party B approve the proposal on assets acquisition. In the course of the implementation, it should be guaranteed that the two parties hereto enjoy and bear equivalent interests and risks. Detailed implementation steps are as follows (the resolution of the boards of directors of Party A and Party B on approving the assets acquisition shall be deemed as appendices to this agreement):

 

 

 

Step I: Party B pays Party A the earnest of RMB 3,000,000.00 yuan (RMB three million yuan) to the designated account of Party A, and Party A shall, after receiving the earnest, carry out overall inventory check over the Subject Assets jointly with Party B.

 

If the following cases occur in the implementation of Step I, Party A shall return the earnest in full amount and the rest paid sum and interest incurred to Party B, and promise that Party B shall have the right to mortgage or pledge the existing land, housing and relevant equipment listed in the Asset list, as a guarantee for refunding the above-mentioned money by Party A.

 

1.	Termination of this agreement caused by the fact that it is found that the Subject Assets have material discrepancy or have changed in the course of assets inventory check;

 

2.	Termination of the agreement proposed by Party A unilaterally for non-payment.

 

Step II: If there is no discrepancy found in the Subject Assets inventory check, Party B shall within 7 days pay Party A RMB 7,250,000.00 (RMB seven million two hundred and fifty thousand Yuan) to the designated account of Party A as the first sum of assets acquisition payment. After Party A receives this sum of payment, Party B shall enter the business and receive all the Subject Assets. And Party A shall assist Party B in going through the transfer procedures of the abovementioned Subject Assets, including house property, land, trademark right, etc., and the expenses arising therefrom shall be borne by Party B.

 

In the implementation of step II, if the following cases occur, Party A shall return all the earnest and the first sum of assets acquisition payment to Party B:

 

1.	The performance of the agreement becoming impossible resulted by the main Subject Assets being unable to be transferred due to Party A’s reason;

 

2.	Termination of the agreement proposed by Party A unilaterally for non-payment.

 

Step III: After the transfer procedures of such Subject Assets, the two parties hereto shall formally carry out handover & takeover. Party A shall assist Party B in going through all the transfer procedures within the contractual period. Party B shall pay Party A the second sum of acquisition payment of RMB 10,250,000.00 yuan (RMB ten million two hundred and fifty thousand Yuan) on June 30, 2009.

 

Step IV: Party B shall pay Party A RMB 13,000,000.00 yuan (RMB thirteen million yuan) and RMB 12,300,000.00 yuan (RMB twelve million three hundred thousand Yuan) respectively on Sept. 30, 2009 and March 1, 2010, as part of the acquisition payment. Party B shall pay Party A the rest part of payment of RMB 8,200,000.00 yuan (RMB eight million two hundred thousand Yuan) on Sept. 30, 2010.

 

 

 

VI.	Miscellaneous

 

1.

The Agreement is a conventional agreement of the two parties hereto. If Party B needs to further conclude assets transfer agreements or sign related documents as per the information disclosure requirements of listed companies, Party A shall provide cooperation. But in practical execution, both Parties hereto shall take the provisions on assets acquisition, payment, etc. of this agreement as the criterion;

 

2.

After the handover & takeover of the business between the two parties hereto is finished, if Party B fails to pay the acquisition payment on time for its own reason, it shall pay Party A overdue fine equal to 1‰ of the overdue unpaid amount per day. If Party B’s payment is more than 60 days overdue, Party A shall have the right to claim the management right back, and Party B shall compensate Party A for the actual loss of Party A;

 

3.	After this agreement comes into force, in case that Party A’s Subject Assets  have undergone transfer during the period of management by Party B in trust, Party B shall not withdraw from the acquisition;

 

4.	Party B shall not be liable or have any obligation for any of business activities of Party A whether conducted prior to or after the consummation of any of the transactions contemplated by this Agreement.

 

VII.	Effect and rescission of agreement

 

This Agreement is made in quadruplicate with each of the two parties hereto holding two copies, and shall come into force upon Party A and Party B’s affixing their seals and their legal or authorized representatives’ signing.

 

If this Agreement is terminated by two parties hereto, the follow-up related matters shall be handled according to the provisions of this agreement. If this Agreement can’t be implemented because of Force Majeure, it shall be rescinded and related matters shall be handled as per relevant laws of the country.

 

Party A: Siping Beifang Heat Exchanger Manufacture Co., Ltd

 

Legal Representative: /s/ Li Shufeng, President

 

Date: June 16, 2009

 

Party B: Shenyang Taiyu- Machinery and Electrical Equipment Co., Ltd

 

Legal Representative: /s/ Wang Jun, President

 

Date June 16, 2009

 

 

---