UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): September 27, 2019
SMARTHEAT INC.
(Exact name of registrant as specified in its charter)
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Nevada |
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001-34246 |
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98-0514768 |
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(State or other Jurisdiction of Incorporation) |
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(Commission File Number) |
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(IRS Employer Identification No.) |
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60 East Ren-Min Road Da-Chai Dan Town Hai Xi County, Qing Hai Province |
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817000 |
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(Address of Principal Executive Offices) |
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(Zip Code) |
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Registrant’s telephone number, including area code: (86) 097-782-8122
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
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Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
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Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
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Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter). Emerging growth company ☐
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
Securities registered pursuant to Section 12(b) of the Act:
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Title of each class |
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Trading Symbol(s) |
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Name of each exchange on which registered |
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Common Stock, par value $0.001 |
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HEAT |
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Grey |
Item 2.01 Completion of Acquisition or Disposition of Assets
On September 30, 2019, Heat HP, Inc. and Heat PHE, Inc, wholly owned subsidiaries of Smartheat Inc. (the “Company”) sold all of their respective equity interests in SmartHeat Jinhui (Beijing) Energy Technology Ltd, SmartHeat(China) Investment Ltd., SmartHeat (Shanghai) Trading Co., Ltd, SmartHeat (Shenyag) Heat Pump Technology Co., Ltd, SanDeKe Co., Ltd. and SmartHeat Heat Exchange Equipment Co. The equity interests were sold to individuals and businesses located in the Peoples Republic of China, none of which or whom had a material relationship with the Company as an officer, director or affiliate, as such term is defined in Rule 405 promulgated under the Securities Act of 1933, as amended. Each subsidiary was sold for nominal cash consideration as set forth below and, as the transactions were structured as purchases of equity interests, the subsidiary companies retained all liabilities when purchased.
SmartHeat Jinhui (Beijing) Energy Technology Ltd 100 RMB
SmartHeat(China) Investment Ltd 400 RMB
SmartHeat (Shanghai) Trading Co., Ltd 400 RMB
SmartHeat (Shenyag)Heat Pump Technology Co., Ltd; (the “Targets”) 400 RMB
SanDeKe Co., Ltd. 600 RMB
SmartHeat Heat Exchange Equipment Co 600 RMB
The description of the Equity Interest Purchase Agreements referred to above is not complete and are qualified by reference to Exhibits 10.27 through 10.32 filed herewith and are incorporated by reference hereto.
Item 4.01 Changes In Registrant’s Certifying Accountant
On September 27, 2019 the Audit Committee of the Board of Directors of the Company ratified the appointment of Prager Metis CPAs, LLC (“Prager Metis”) as the Company’s independent registered public accounting firm for the fiscal year ending December 31, 2019 and ratified the dismissal of MJF & Associates, APC (“MJF”) from service as the Company’s independent registered public accounting firm as of July 15, 2019. The Company formally engaged Prager Metis on July 25, 2019.
MJF served as the auditors of the Company’s consolidated financial statements for the period from December 31, 2014 through December 31, 2018; resigned on April 29, 2019 and were reengaged on June 23, 2019 until July 15, 2019 as previously disclosed in the Company’s Current Report on Form 8-K filed on July 5, 2019.
The reports of MJF on the Company’s consolidated financial statements for the Company’s year from December 31, 2014 to December 31, 2018 did not contain any adverse opinion or a disclaimer of opinion and were not qualified or modified, audit scope or accounting principle, except that there was an emphasis of matter paragraph relating to going concern uncertainty and a note to the consolidated financial statements describing conditions that raised substantial doubt about the Company’s ability to continue as a going concern for the years ended December 31, 2014 through December 31, 2018.
From January 12, 2015 through May 31, 2019 and from June 23, 2019 to July 15, 2019, the periods during which the MJF was engaged as the Company’s independent registered public accounting firm, there were no disagreements with MJF on any matter of accounting principles or practices, financial statement disclosure or auditing scope or procedure, which disagreements, if not resolved to the satisfaction of MJF, would have caused MJF to make reference to the subject matter of the disagreements as defined in Item 304 of Regulation S-K in connection with any reports it would have issued, and there were no “reportable events” as such term is described in Item 304 of Regulation S-K.
MJF advised the Company that the Company’s internal control over financial reporting based on the framework and criteria established in the Internal Control – Integrated Framework issued by the Committee of Sponsoring Organizations of the Treadway Commission (“COSO”) was not effective as of December 31, 2018.
The Company has provided the MJF with a copy of the foregoing disclosure and requested that the MJF furnish the Company with a letter (the “Consent Letter”) addressed to the Securities and Exchange Commission stating whether or not it agrees with the above statements and, if not, stating the respects in which it does not agree. MJF has issued the Consent Letter which is attached herein as Exhibit 16.4 to this Current Report on Form 8-K.
During the fiscal years ended December 31, 2018 and 2017 and the subsequent interim period through July 25, 2019, neither the Company, nor anyone on its behalf, consulted Prager Metis regarding (i) the application of accounting principles to a specified transaction, either completed or proposed, or the type of audit opinion that might be rendered on the Company’s consolidated financial statements, and no written report or oral advice was provided to the Company by Prager Metis that Prager Metis concluded was an important factor considered by the Company in reaching a decision as to any accounting, auditing or financial reporting issue or (ii) any matter that was the subject of a “disagreement” (as that term is defined in Item 304(a)(1)(iv) of Regulation S-K and the related instructions) or a “reportable event” (as that term is defined in Item 304(a)(1)(v) of Regulation S-K).
Item 9.01 Financial Statements and Exhibits
(d) Exhibits
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Exhibit |
Description |
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16.04 |
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10.27 |
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10.28 |
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10.29 |
Equity Interest Purchase Agreement between Heat HP, Inc. and Wang Ying Kai dated September 30, 2019. |
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10.30 |
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10.31 |
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10.32 |
Equity Interest Purchase Agreement between Heat HP, Inc. and Mr. He Yi dated September 30, 2019 |
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
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SMARTHEAT INC. |
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(Registrant)
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Date: |
October 1, 2019 |
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By: |
/s/ Jimin Zhang |
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Name: |
Mr. Jimin Zhang |
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Title: |
Chief Executive Officer |
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Exhibit 16.04
October 1, 2019
Securities and Exchange Commission
100 F Street, N.E.
Washington, D.C. 20549
Re: SmartHeat, Inc.
(Commission file number: 001-34246)
We have read the statements of SmartHeat, Inc. included under Item 4.01 of Form 8-K to be filed with the SEC on October 1, 2019 and agree with such statements as they pertain to our firm.
Sincerely,
MJF & Associates, APC
515 S. Flower Street, Suite 1800, Los Angeles, CA 90071 Telephone: (213) 626-2701 Fax: (866) 510-6726
Exhibit 10.27
EQUITY INTEREST PURCHASE AGREEMENT
Party A: Heat HP, Inc., a corporation organized under the laws of the state of Nevada with its registered address at 1802 North Carson Street, Suite 212, Carson City NV 89701.
Party B: Beijing Chang Ze Consulting, Ltd with an address Building 1-167, No.4 Fa Tou Dong Li, Chaoyang District Beijing, China.
This Equity Interest Purchase Agreement (the “EIPA”) is executed as of September 30, 2019 by and among Party A and Party B. Each of Party A and Party B shall be referred to as a “Party,” and collectively, the “Parties.”
WHEREAS,
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(1) |
Party A is a corporation duly organized and validly existing under the laws of the state of Nevada and owns 52% of the equity interests of SmartHeat Jinhui (Beijing) Energy Technology Ltd (“Target”); |
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(2) |
Target is a corporation duly organized and validly existing under the laws of the Peoples Republic of China (“PRC”); and, |
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(3) |
Buyer is a limited corporation duly organized and validly existing under the laws of the PRC with all authority under the laws of PRC to enter into this Agreement. |
NOW THEREFORE, in consideration of the representations, warranties, and agreements contained in this EIPA, the Parties hereto agree as follows:
1. Equity Interest Purchase and Consideration
1.1. Party B hereby agrees to purchase, and Party A hereby agrees to sell and transfer to Party B, 70% of its equity interests in the Target to Party B effective as of August 30, 2019 (the “Closing Date”) for RMB 70 subject to the termination provisions set forth in paragraph 6 below.
1.2. The Parties agree that such sale and purchase shall be conditioned upon approval by the Board of Directors of Party A and a majority of its stockholders.
2. Change of Registration
2.1. The Parties hereby agree that Party B shall file the applicable registration change in the State Administration for Industry and Commerce in the People’s Republic of China as equity interests in the Target are sold and transferred by Party A and purchased and assumed by Party B to carry out the intent of this EIPA and Party A shall cooperate with Party B in any such filing.
2.2. The cost related to the registration change with the People’s Republic of China shall be undertaken by Party B. The taxes incurred from the transfer of the equity interests, if any, shall be undertaken by Party B.
3. Representations and Warranties
3.1. Party A represents and warrants to the following:
3.1.1 Party A is selling the equity interests in the Target “as is” and makes no other representations, warranties or covenants, except as expressly provided in this Agreement.
3.1.2 owns 52% of the equity interests in Target.
3.1.3 Party A has good and marketable title to the equity interests of the Target owned by Party A, free and clear of all encumbrances, subject to any transfer requirements in the People’s Republic of China.
3.1.4 Party A is duly organized and validly existing under the laws of the State of Nevada, and the Target is registered under the proper governmental authorities as required under the laws of the People’s Republic of China.
3.1.5 Party A has the full right, power and authority to enter into this EIPA and to perform all of its obligations hereunder.
3.1.6 The execution and performance of this EIPA shall not breach any other signed material contract or EIPA to which Party A is a party.
3.1.7 The representative who has executed the EIPA and this EIPA on behalf of Party A has been duly authorized to execute this Restated Agreement.
3.2 Party B represents and warrants to the following:
3.2.1 Party B is a limited corporation incorporated and in good standing in the People’s Republic of China.
3.2.2 Party B has the full right, power and authority to enter into this EIPA and to perform all of its obligations hereunder.
3.2.3 The execution of this EIPA shall not breach any other written material contract or to which Party B is a party.
3.2.4 Party B is duly authorized to execute the EIPA and this EIPA.
3.2.5 Party B has been given full opportunity to review all documents requested by Party B, including, but not limited to the un-audited financial statements of Target, to evaluate this transaction and acknowledges that it has been given sufficient information to make its investment decision in the Target. Party B acknowledges that the sale of the Target is “as is.”
3.2.6 Party B represents and warrants that under the relevant laws of the PRC it shall assume all liabilities of the Target pursuant to this Agreement and agrees that it shall assume all liabilities of the Target, whether known, unknown or contingent after the Closing.
4. Closing
4.1 The Closings hereunder shall take place electronically, or at such other place or by such other means as agreed by the Parties.
4.2 Party B shall deliver to Party A at the Closing, the consideration by wire transfer of immediately available funds, check or cash funds.
4.2 As soon as practical after the Closing Date, Party B shall deliver to Party A evidence of the transfer of the specified equity interest in the Target.
4.2 Party A shall deliver to Party B evidence of the satisfaction of the conditions specified in Section 1.2 and the Parties shall exchange the Mutual Release.
5. Notices and Delivery
5.1 The Parties acknowledge that any notice and other correspondence concerning this Agreement (“Notice”) shall be made in writing and shall be (a) personally delivered, or (b) sent by overnight courier and transmitted electronically, in each case addressed or emailed to the Party to whom notice is being given at its address set forth in the Preamble to this Agreement, or as to each Party, at such other address or e-mail as may hereafter be designated by such Party in a written notice to the other Party complying as to the delivery with the terms of this paragraph 5.1.
5.2 All such notices, requests, demands and other communications shall be deemed to have been given on (a) the date received if personally delivered, or (b) the date sent if sent by overnight courier and e-mail.
6. Amendment, Termination and Transfer of this Restated Agreement
6.1 Any amendment or modification to this EIPA is required to be approved and negotiated by all Parties and shall only be effective by way of a written agreement executed by the Parties.
6.2 This EIPA may be terminated by either Party A or Party B:
6.2.1 At any time prior to the Closing Date, by mutual agreement between Party A and Party B;
6.2.2 By a non-breaching Party, in the event a Party breaches this EIPA, and such breach shall not be corrected within thirty days of written notice of the breach sent by the non-breaching Party.
6.2.3 If the transactions contemplated by this EIPA cannot be consummated as consequence of a force majeure event.
6.3 Any Party seeking to terminate this EIPA shall provide written notice of the termination to the other Party, which termination shall become effective upon receipt of the other Party of the written notice.
6.4 The Parties agree not to transfer any or all of their obligations under this EIPA without the written agreement of the non-transferring Party.
7. Dispute Resolution
7.1 This EIPA shall be governed by and construed under the internal laws of the People’s Republic of China.
7.2 This EIPA shall be governed by procedures other than litigation for settling all claims and disputes under the method set forth below:
7.2.1 The Parties agree to attempt in good faith to settle any dispute arising under or relating to this EIPA by mediation before the Hong Kong International Arbitration Centre (HKIAC) under the then-current version of HKIAC’s Commercial Mediation Rules. The place of mediation shall be in Hong Kong and three mediators shall be appointed, one by Party A, one by Party B, and one who shall be selected by the Parties mutual agreement.
7.2.2 If the mediation is abandoned by the mediator or is otherwise concluded without the dispute being resolved, the parties may, at their option refer the dispute to arbitration at HKIAC in accordance with its then-current International Arbitration Rules.
8. Miscellaneous
8.1 Taxes and expenses incurred by the transactions contemplated by this EIPA shall be borne by the Parties in accordance with their respective obligations, unless otherwise provided. The tax related to the change of registration shall be borne by the Target.
8.2 This EIPA shall not be modified or altered except in a writing executed by both of the Parties. For matters outside of this EIPA, the Parties shall sign a supplemental agreement. The supplemental agreement, together with this EIPA, shall constitute the entire agreement and have the same legal effect.
8.3 This EIPA shall be effective immediately upon the execution by the Parties. This EIPA may be executed in any number of counterparts, each of which when so executed and delivered shall be deemed to be an original and all of which counterparts, taken together, shall constitute one and the same instrument.
8.4 Any provision of this EIPA which is prohibited or unenforceable shall be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof.
8.5 Section headings in this EIPA are included for convenience of reference only and shall not constitute a part of this EIPA for any other purpose.
IN WITNESS WHEREOF, the parties hereto have caused this EIPA to be executed by their respective officers thereunto duly authorized as of the date first above written.
PARTY A:
HEAT HP, INC.
By:/s/ Jimin Zhang
Name: Jimin Zhang
Title: President
PARTY B:
BEIJING CHANG ZE CONSULTING, LTD
By:/s/ He Yi
Name: Mr. He Yi
Title: Chief Executive Officer
Exhibit 10.28
EQUITY INTEREST PURCHASE AGREEMENT
Party A: Heat HP, Inc, a corporation organized under the laws of Nevada with an address of 1802 North Carson Street, Suite 212, Carson City NV 89701.
Party B: Ms. Wang Shi Hui with an address of No. 10-1, 7th Street, Economic Development Zone, Shen Yang, Liao Ning Province China.
This Equity Interest Purchase Agreement (the “EIPA”) is executed as of September 30, 2019 by and among Party A and Party B. Each of Party A and Party B shall be referred to as a “Party,” and collectively, the “Parties.”
WHEREAS,
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(1) |
Party A is a corporation duly organized and validly existing under the laws of Nevada and owns 100% of the equity interests of SmartHeat(China) Investment Ltd. and SmartHeat (Shanghai) Trading Co., Ltd and 98% of the equity interests of SmartHeat (Shenyag)Heat Pump Technology Co., Ltd; (the “Targets”); |
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(2) |
Targets are corporations duly organized and validly existing under the laws of the Peoples Republic of China (“PRC”); and |
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(3) |
Buyer is an individual citizen of the age of majority residing in the PRC with all authority under the laws of PRC to enter into this Agreement. |
NOW THEREFORE, in consideration of the representations, warranties, and agreements contained in this EIPA, the Parties hereto agree as follows:
1. Equity Interest Purchase and Consideration
1.1. Party B hereby agrees to purchase, and Party A hereby agrees to sell and transfer to Party B, 40% of its equity interests in the Targets to Party B effective as of August 30, 2019 (the “Closing Date”) for RMB 600 subject to the termination provisions set forth in paragraph 6 below.
1.2. The Parties agree that such sale and purchase shall be conditioned upon approval by the Board of Directors of Party A and a majority of its stockholders.
2. Change of Registration
2.1. The Parties hereby agree that Party B shall file the applicable registration change in the State Administration for Industry and Commerce in the People’s Republic of China as equity interests in the Targets are sold and transferred by Party A and purchased and assumed by Party B to carry out the intent of this EIPA and Party A shall cooperate with Party B in any such filing.
2.2. The cost related to the registration change with the People’s Republic of China shall be undertaken by Party B. The taxes incurred from the transfer of the equity interests, if any, shall be undertaken by Party B.
3. Representations and Warranties
3.1. Party A represents and warrants to the following:
3.1.1 Party A is selling the equity interests in the Targets “as is” and makes no other representations, warranties or covenants, except as expressly provided in this Agreement.
3.1.2 Party A owns 98.8% of the equity interests of SmartHeat (Shenyag)Heat Pump Technology Co. and 100% of the equity interests of SmartHeat (China) Investment Co., Ltd and . and SmartHeat (Shanghai) Trading Co., Ltd.
3.1.3 Party A has good and marketable title to the equity interests of the Targets owned by Party A, free and clear of all encumbrances, subject to any transfer requirements in the People’s Republic of China.
3.1.4 Party A is duly organized and validly existing under the laws of the State of Nevada, and the Targets are registered under the proper governmental authorities as required under the laws of the People’s Republic of China.
3.1.5 Party A has the full right, power and authority to enter into this EIPA and to perform all of its obligations hereunder.
3.1.6 The execution and performance of this EIPA shall not breach any other signed material contract or EIPA to which Party A is a party.
3.1.7 The representative who has executed the EIPA and this EIPA on behalf of Party A has been duly authorized to execute this Agreement.
3.2 Party B represents and warrants to the following:
3.2.1 Party B is an individual citizen of the People’s Republic of China.
3.2.2 Party B has the full right, power and authority to enter into this EIPA and to perform all of its obligations hereunder.
3.2.3 The execution of this EIPA shall not breach any other written material contract or to which Party B is a party.
3.2.4 Party B is duly authorized to execute the EIPA and this EIPA.
3.2.5 Party B has been given full opportunity to review all documents requested by Party B, including, but not limited to the un-audited financial statements of Target, to evaluate this transaction and acknowledges that it has been given sufficient information to make its investment decision in the Target. Party B acknowledges that the sale of the Targets is “as is.”
3.2.6 Party B represents and warrants that under the relevant laws of the PRC it shall assume all liabilities of the Target pursuant to this Agreement and agrees that it shall assume all liabilities of the Target, whether known, unknown or contingent after the Closing.
4. Closing
4.1 The Closings hereunder shall take place electronically, or at such other place or by such other means as agreed by the Parties.
4.2 Party B shall deliver to Party A at the Closing, the consideration by wire transfer of immediately available funds, check or cash funds.
4.2 As soon as practical after the Closing Date, Party B shall deliver to Party A evidence of the transfer of the specified equity interest in the Target.
4.2 Party A shall deliver to Party B evidence of the satisfaction of the conditions specified in Section 1.2 and the Parties shall exchange the Mutual Release.
5. Notices and Delivery
5.1 The Parties acknowledge that any notice and other correspondence concerning this Agreement (“Notice”) shall be made in writing and shall be (a) personally delivered, or (b) sent by overnight courier and transmitted electronically, in each case addressed or emailed to the Party to whom notice is being given at its address set forth in the Preamble to this Agreement, or as to each Party, at such other address or e-mail as may hereafter be designated by such Party in a written notice to the other Party complying as to the delivery with the terms of this paragraph 5.1.
5.2 All such notices, requests, demands and other communications shall be deemed to have been given on (a) the date received if personally delivered, or (b) the date sent if sent by overnight courier and e-mail.
6. Amendment, Termination and Transfer of this Agreement
6.1 Any amendment or modification to this EIPA is required to be approved and negotiated by all Parties and shall only be effective by way of a written agreement executed by the Parties.
6.2 This EIPA may be terminated by either Party A or Party B:
6.2.1 At any time prior to the Closing Date, by mutual agreement between Party A and Party B;
6.2.2 By a non-breaching Party, in the event a Party breaches this EIPA, and such breach shall not be corrected within thirty days of written notice of the breach sent by the non-breaching Party.
6.2.3 If the transactions contemplated by this EIPA cannot be consummated as consequence of a force majeure event.
6.3 Any Party seeking to terminate this EIPA shall provide written notice of the termination to the other Party, which termination shall become effective upon receipt of the other Party of the written notice.
6.4 The Parties agree not to transfer any or all of their obligations under this EIPA without the written agreement of the non-transferring Party.
7. Dispute Resolution
7.1 This EIPA shall be governed by and construed under the internal laws of the People’s Republic of China.
7.2 This EIPA shall be governed by procedures other than litigation for settling all claims and disputes under the method set forth below:
7.2.1 The Parties agree to attempt in good faith to settle any dispute arising under or relating to this EIPA by mediation before the Hong Kong International Arbitration Centre (HKIAC) under the then-current version of HKIAC’s Commercial Mediation Rules. The place of mediation shall be in Hong Kong and three mediators shall be appointed, one by Party A, one by Party B, and one who shall be selected by the Parties mutual agreement.
7.2.2 If the mediation is abandoned by the mediator or is otherwise concluded without the dispute being resolved, the parties may, at their option refer the dispute to arbitration at HKIAC in accordance with its then-current International Arbitration Rules.
8. Miscellaneous
8.1 Taxes and expenses incurred by the transactions contemplated by this EIPA shall be borne by the Parties in accordance with their respective obligations, unless otherwise provided. The tax related to the change of registration shall be borne by the Target.
8.2 This EIPA shall not be modified or altered except in a writing executed by both of the Parties. For matters outside of this EIPA, the Parties shall sign a supplemental agreement. The supplemental agreement, together with this EIPA, shall constitute the entire agreement and have the same legal effect.
8.3 This EIPA shall be effective immediately upon the execution by the Parties. This EIPA may be executed in any number of counterparts, each of which when so executed and delivered shall be deemed to be an original and all of which counterparts, taken together, shall constitute one and the same instrument.
8.4 Any provision of this EIPA which is prohibited or unenforceable shall be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof.
8.5 Section headings in this EIPA are included for convenience of reference only and shall not constitute a part of this EIPA for any other purpose.
IN WITNESS WHEREOF, the parties hereto have caused this EIPA to be executed by their respective officers thereunto duly authorized as of the date first above written.
PARTY A:
HEAT HP, INC.
By: /s/ Jimin Zhang
Name: Jimin Zhang
Title: President
PARTY B:
/s/ Wang, Shi Hui
Name: Ms. Wang Shi Hui
Exhibit 10.29
EQUITY INTEREST PURCHASE AGREEMENT
Party A: Heat HP, Inc, a corporation organized under the laws of Nevada with an address of 1802 North Carson Street, Suite 212, Carson City NV 89701.
Party B: Mr. Wang Ying Kai with an address of No. 10-1, 7th Street, Economic Development Zone, Shen Yang, Liao Ning Province China.
This Equity Interest Purchase Agreement (the “EIPA”) is executed as of September 30 , 2019 by and among Party A and Party B. Each of Party A and Party B shall be referred to as a “Party,” and collectively, the “Parties.”
WHEREAS,
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(1) |
Party A is a corporation duly organized and validly existing under the laws of Nevada and owns 100% of the equity interests of SmartHeat(China) Investment Ltd. . and SmartHeat (Shanghai) Trading Co., Ltd and 98% of the equity interests of SmartHeat (Shenyag)Heat Pump Technology Co., Ltd; (the “Targets”); |
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(2) |
Targets are corporations duly organized and validly existing under the laws of the Peoples Republic of China (“PRC”); and |
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(3) |
Buyer is an individual citizen of the age of majority residing in the PRC with all authority under the laws of PRC to enter into this Agreement; and, |
NOW THEREFORE, in consideration of the representations, warranties, and agreements contained in this EIPA, the Parties hereto agree as follows:
1. Equity Interest Purchase and Consideration
1.1. Party B hereby agrees to purchase, and Party A hereby agrees to sell and transfer to Party B, 60% of its equity interests in the Targets to Party B effective as of August 30, 2019 (the “Closing Date”) for RMB 600 subject to the termination provisions set forth in paragraph 6 below.
1.2. The Parties agree that such sale and purchase shall be conditioned upon approval by the Board of Directors of Party A and a majority of its stockholders.
2. Change of Registration
2.1. The Parties hereby agree that Party B shall file the applicable registration change in the State Administration for Industry and Commerce in the People’s Republic of China as equity interests in the Targets are sold and transferred by Party A and purchased and assumed by Party B to carry out the intent of this EIPA and Party A shall cooperate with Party B in any such filing.
2.2. The cost related to the registration change with the People’s Republic of China shall be undertaken by Party B. The taxes incurred from the transfer of the equity interests, if any, shall be undertaken by Party B.
3. Representations and Warranties
3.1. Party A represents and warrants to the following:
3.1.1 Party A is selling the equity interests in the Targets “as is” and makes no other representations, warranties or covenants, except as expressly provided in this Agreement.
3.1.2 Party A owns 98.8% of the equity interests of SmartHeat (Shenyag)Heat Pump Technology Co. and 100% of the equity interests of SmartHeat (China) Investment Co., Ltd. and SmartHeat (Shanghai) Trading Co., Ltd.
3.1.3 Party A has good and marketable title to the equity interests of the Targets owned by Party A, free and clear of all encumbrances, subject to any transfer requirements in the People’s Republic of China.
3.1.4 Party A is duly organized and validly existing under the laws of the State of Nevada, and the Targets are registered under the proper governmental authorities as required under the laws of the People’s Republic of China.
3.1.5 Party A has the full right, power and authority to enter into this EIPA and to perform all of its obligations hereunder.
3.1.6 The execution and performance of this EIPA shall not breach any other signed material contract or EIPA to which Party A is a party.
3.1.7 The representative who has executed the EIPA and this EIPA on behalf of Party A has been duly authorized to execute this Agreement.
3.2 Party B represents and warrants to the following:
3.2.1 Party B is an individual citizen of the People’s Republic of China.
3.2.2 Party B has the full right, power and authority to enter into this EIPA and to perform all of its obligations hereunder.
3.2.3 The execution of this EIPA shall not breach any other written material contract or to which Party B is a party.
3.2.4 Party B is duly authorized to execute the EIPA and this EIPA.
3.2.5 Party B has been given full opportunity to review all documents requested by Party B, including, but not limited to the un-audited financial statements of Target, to evaluate this transaction and acknowledges that it has been given sufficient information to make its investment decision in the Target. Party B acknowledges that the sale of the Targets is “as is.”
3.2.6 Party B represents and warrants that under the relevant laws of the PRC it shall assume all liabilities of the Target pursuant to this Agreement and agrees that it shall assume all liabilities of the Target, whether known, unknown or contingent after the Closing.
4. Closing
4.1 The Closings hereunder shall take place electronically, or at such other place or by such other means as agreed by the Parties.
4.1 Party B shall deliver to Party A at the Closing, the consideration by wire transfer of immediately available funds, check or cash funds.
4.2 As soon as practical after the Closing Date, Party B shall deliver to Party A evidence of the transfer of the specified equity interest in the Target.
4.2 Party A shall deliver to Party B evidence of the satisfaction of the conditions specified in Section 1.2 and the Parties shall exchange the Mutual Release.
5. Notices and Delivery
5.1 The Parties acknowledge that any notice and other correspondence concerning this Agreement (“Notice”) shall be made in writing and shall be (a) personally delivered, or (b) sent by overnight courier and transmitted electronically, in each case addressed or emailed to the Party to whom notice is being given at its address set forth in the Preamble to this Agreement, or as to each Party, at such other address or e-mail as may hereafter be designated by such Party in a written notice to the other Party complying as to the delivery with the terms of this paragraph 5.1.
5.2 All such notices, requests, demands and other communications shall be deemed to have been given on (a) the date received if personally delivered, or (b) the date sent if sent by overnight courier and e-mail.
6. Amendment, Termination and Transfer of this Agreement
6.1 Any amendment or modification to this EIPA is required to be approved and negotiated by all Parties and shall only be effective by way of a written agreement executed by the Parties.
6.2 This EIPA may be terminated by either Party A or Party B:
6.2.1 At any time prior to the Closing Date, by mutual agreement between Party A and Party B;
6.2.2 By a non-breaching Party, in the event a Party breaches this EIPA, and such breach shall not be corrected within thirty days of written notice of the breach sent by the non-breaching Party.
6.2.3 If the transactions contemplated by this EIPA cannot be consummated as consequence of a force majeure event.
6.3 Any Party seeking to terminate this EIPA shall provide written notice of the termination to the other Party, which termination shall become effective upon receipt of the other Party of the written notice.
6.4 The Parties agree not to transfer any or all of their obligations under this EIPA without the written agreement of the non-transferring Party.
7. Dispute Resolution
7.1 This EIPA shall be governed by and construed under the internal laws of the People’s Republic of China.
7.2 This EIPA shall be governed by procedures other than litigation for settling all claims and disputes under the method set forth below:
7.2.1 The Parties agree to attempt in good faith to settle any dispute arising under or relating to this EIPA by mediation before the Hong Kong International Arbitration Centre (HKIAC) under the then-current version of HKIAC’s Commercial Mediation Rules. The place of mediation shall be in Hong Kong and three mediators shall be appointed, one by Party A, one by Party B, and one who shall be selected by the Parties mutual agreement.
7.2.2 If the mediation is abandoned by the mediator or is otherwise concluded without the dispute being resolved, the parties may, at their option refer the dispute to arbitration at HKIAC in accordance with its then-current International Arbitration Rules.
8. Miscellaneous
8.1 Taxes and expenses incurred by the transactions contemplated by this EIPA shall be borne by the Parties in accordance with their respective obligations, unless otherwise provided. The tax related to the change of registration shall be borne by the Target.
8.2 This EIPA shall not be modified or altered except in a writing executed by both of the Parties. For matters outside of this EIPA, the Parties shall sign a supplemental agreement. The supplemental agreement, together with this EIPA, shall constitute the entire agreement and have the same legal effect.
8.3 This EIPA shall be effective immediately upon the execution by the Parties. This EIPA may be executed in any number of counterparts, each of which when so executed and delivered shall be deemed to be an original and all of which counterparts, taken together, shall constitute one and the same instrument.
8.4 Any provision of this EIPA which is prohibited or unenforceable shall be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof.
8.5 Section headings in this EIPA are included for convenience of reference only and shall not constitute a part of this EIPA for any other purpose.
IN WITNESS WHEREOF, the parties hereto have caused this EIPA to be executed by their respective officers thereunto duly authorized as of the date first above written.
PARTY A:
HEAT HP, INC.
By: /s/ Jimin Zhang
Name: Jimin Zhang
Title: President
PARTY B:
/s/ Wang, Ying Kai
Name: Mr. Wang Ying Kai
Exhibit 10.30
EQUITY INTEREST PURCHASE AGREEMENT
Party A: Heat PHE, Inc, a corporation organized under the laws of Nevada with an address of 1802 North Carson Street, Suite 212, Carson City NV 89701.
Party B: Ms. Wang Shi Hui with an address of No. 10-1, 7th Street, Economic Development Zone, Shen Yang, Liao Ning Province China.
This Equity Interest Purchase Agreement (the “EIPA”) is executed as of September 30, 2019 by and among Party A and Party B. Each of Party A and Party B shall be referred to as a “Party,” and collectively, the “Parties.”
WHEREAS,
|
(1) |
Party A is a corporation duly organized and validly existing under the laws of Nevada and owns 100% of the equity interests of SanDeKe Co., Ltd. and SmartHeat Heat Exchange Equipment Co. (the “Targets”); |
|
(2) |
Targets are corporations duly organized and validly existing under the laws of the Peoples Republic of China (“PRC”); and |
|
(3) |
Buyer is an individual citizen of the age of majority residing in the PRC with all authority under the laws of PRC to enter into this Agreement. |
NOW THEREFORE, in consideration of the representations, warranties, and agreements contained in this EIPA, the Parties hereto agree as follows:
1. Equity Interest Purchase and Consideration
1.1. Party B hereby agrees to purchase, and Party A hereby agrees to sell and transfer to Party B, 40% of its equity interests in the Targets to Party B effective as of August 30, 2019 (the “Closing Date”) for RMB 600 subject to the termination provisions set forth in paragraph 6 below.
1.2. The Parties agree that such sale and purchase shall be conditioned upon approval by the Board of Directors of Party A and a majority of its stockholders.
2. Change of Registration
2.1. The Parties hereby agree that Party B shall file the applicable registration change in the State Administration for Industry and Commerce in the People’s Republic of China as equity interests in the Targets are sold and transferred by Party A and purchased and assumed by Party B to carry out the intent of this EIPA and Party A shall cooperate with Party B in any such filing.
2.2. The cost related to the registration change with the People’s Republic of China shall be undertaken by Party B. The taxes incurred from the transfer of the equity interests, if any, shall be undertaken by Party B.
3. Representations and Warranties
3.1. Party A represents and warrants to the following:
3.1.1 Party A is selling the equity interests in the Targets “as is” and makes no other representations, warranties or covenants, except as expressly provided in this Agreement.
3.1.2 Party A owns 100% of the equity interests of Targets.
3.1.3 Party A has good and marketable title to the equity interests of the Targets owned by Party A, free and clear of all encumbrances, subject to any transfer requirements in the People’s Republic of China.
3.1.4 Party A is duly organized and validly existing under the laws of the State of Nevada, and the Targets are registered under the proper governmental authorities as required under the laws of the People’s Republic of China.
3.1.5 Party A has the full right, power and authority to enter into this EIPA and to perform all of its obligations hereunder.
3.1.6 The execution and performance of this EIPA shall not breach any other signed material contract or EIPA to which Party A is a party.
3.1.7 The representative who has executed the EIPA and this EIPA on behalf of Party A has been duly authorized to execute this Agreement.
3.2 Party B represents and warrants to the following:
3.2.1 Party B is an individual citizen of the People’s Republic of China.
3.2.2 Party B has the full right, power and authority to enter into this EIPA and to perform all of its obligations hereunder.
3.2.3 The execution of this EIPA shall not breach any other written material contract or to which Party B is a party.
3.2.4 Party B is duly authorized to execute the EIPA and this EIPA.
3.2.5 Party B has been given full opportunity to review all documents requested by Party B, including, but not limited to the un-audited financial statements of Target, to evaluate this transaction and acknowledges that it has been given sufficient information to make its investment decision in the Target. Party B acknowledges that the sale of the Targets is “as is.”
3.2.6 Party B represents and warrants that under the relevant laws of the PRC it shall assume all liabilities of the Target pursuant to this Agreement and agrees that it shall assume all liabilities of the Target, whether known, unknown or contingent after the Closing.
4. Closing
4.1 The Closings hereunder shall take place electronically, or at such other place or by such other means as agreed by the Parties.
4.2 Party B shall deliver to Party A at the Closing, the consideration by wire transfer of immediately available funds, check or cash funds.
4.2 As soon as practical after the Closing Date, Party B shall deliver to Party A evidence of the transfer of the specified equity interest in the Target.
4.2 Party A shall deliver to Party B evidence of the satisfaction of the conditions specified in Section 1.2 and the Parties shall exchange the Mutual Release.
5. Notices and Delivery
5.1 The Parties acknowledge that any notice and other correspondence concerning this Agreement (“Notice”) shall be made in writing and shall be (a) personally delivered, or (b) sent by overnight courier and transmitted electronically, in each case addressed or emailed to the Party to whom notice is being given at its address set forth in the Preamble to this Agreement, or as to each Party, at such other address or e-mail as may hereafter be designated by such Party in a written notice to the other Party complying as to the delivery with the terms of this paragraph 5.1.
5.2 All such notices, requests, demands and other communications shall be deemed to have been given on (a) the date received if personally delivered, or (b) the date sent if sent by overnight courier and e-mail.
6. Amendment, Termination and Transfer of this Agreement
6.1 Any amendment or modification to this EIPA is required to be approved and negotiated by all Parties and shall only be effective by way of a written agreement executed by the Parties.
6.2 This EIPA may be terminated by either Party A or Party B:
6.2.1 At any time prior to the Closing Date, by mutual agreement between Party A and Party B;
6.2.2 By a non-breaching Party, in the event a Party breaches this EIPA, and such breach shall not be corrected within thirty days of written notice of the breach sent by the non-breaching Party.
6.2.3 If the transactions contemplated by this EIPA cannot be consummated as consequence of a force majeure event.
6.3 Any Party seeking to terminate this EIPA shall provide written notice of the termination to the other Party, which termination shall become effective upon receipt of the other Party of the written notice.
6.4 The Parties agree not to transfer any or all of their obligations under this EIPA without the written agreement of the non-transferring Party.
7. Dispute Resolution
7.1 This EIPA shall be governed by and construed under the internal laws of the People’s Republic of China.
7.2 This EIPA shall be governed by procedures other than litigation for settling all claims and disputes under the method set forth below:
7.2.1 The Parties agree to attempt in good faith to settle any dispute arising under or relating to this EIPA by mediation before the Hong Kong International Arbitration Centre (HKIAC) under the then-current version of HKIAC’s Commercial Mediation Rules. The place of mediation shall be in Hong Kong and three mediators shall be appointed, one by Party A, one by Party B, and one who shall be selected by the Parties mutual agreement.
7.2.2 If the mediation is abandoned by the mediator or is otherwise concluded without the dispute being resolved, the parties may, at their option refer the dispute to arbitration at HKIAC in accordance with its then-current International Arbitration Rules.
8. Miscellaneous
8.1 Taxes and expenses incurred by the transactions contemplated by this EIPA shall be borne by the Parties in accordance with their respective obligations, unless otherwise provided. The tax related to the change of registration shall be borne by the Target.
8.2 This EIPA shall not be modified or altered except in a writing executed by both of the Parties. For matters outside of this EIPA, the Parties shall sign a supplemental agreement. The supplemental agreement, together with this EIPA, shall constitute the entire agreement and have the same legal effect.
8.3 This EIPA shall be effective immediately upon the execution by the Parties. This EIPA may be executed in any number of counterparts, each of which when so executed and delivered shall be deemed to be an original and all of which counterparts, taken together, shall constitute one and the same instrument.
8.4 Any provision of this EIPA which is prohibited or unenforceable shall be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof.
8.5 Section headings in this EIPA are included for convenience of reference only and shall not constitute a part of this EIPA for any other purpose.
IN WITNESS WHEREOF, the parties hereto have caused this EIPA to be executed by their respective officers thereunto duly authorized as of the date first above written.
PARTY A:
HEAT PHE, INC.
By:/s/ Jimin Zhang
Name: Jimin Zhang
Title: President
PARTY B:
/s/ Wang, Shi Hui
Name: Ms. Wang Shi Hui
Exhibit 10.31
EQUITY INTEREST PURCHASE AGREEMENT
Party A: Heat PHE, Inc, a corporation organized under the laws of Nevada with an address of 1802 North Carson Street, Suite 212, Carson City NV 89701.
Party B: Mr. Wang Ying Kai with an address of No. 10-1, 7th Street, Economic Development Zone, Shen Yang, Liao Ning Province China.
This Equity Interest Purchase Agreement (the “EIPA”) is executed as of September 30, 2019 by and among Party A and Party B. Each of Party A and Party B shall be referred to as a “Party,” and collectively, the “Parties.”
WHEREAS,
|
(1) |
Party A is a corporation duly organized and validly existing under the laws of Nevada and owns 100% of the equity interests of SanDeKe Co., Ltd. and SmartHeat Heat Exchange Equipment Co. (the “Targets”); |
|
(2) |
Targets are corporations duly organized and validly existing under the laws of the Peoples Republic of China (“PRC”); and |
|
(3) |
Buyer is an individual citizen of the age of majority residing in the PRC with all authority under the laws of PRC to enter into this Agreement; and, |
NOW THEREFORE, in consideration of the representations, warranties, and agreements contained in this EIPA, the Parties hereto agree as follows:
1. Equity Interest Purchase and Consideration
1.1. Party B hereby agrees to purchase, and Party A hereby agrees to sell and transfer to Party B, 60% of its equity interests in the Targets to Party B effective as of August 30, 2019 (the “Closing Date”) for RMB 600 subject to the termination provisions set forth in paragraph 6 below.
1.2. The Parties agree that such sale and purchase shall be conditioned upon approval by the Board of Directors of Party A and a majority of its stockholders.
2. Change of Registration
2.1. The Parties hereby agree that Party B shall file the applicable registration change in the State Administration for Industry and Commerce in the People’s Republic of China as equity interests in the Targets are sold and transferred by Party A and purchased and assumed by Party B to carry out the intent of this EIPA and Party A shall cooperate with Party B in any such filing.
2.2. The cost related to the registration change with the People’s Republic of China shall be undertaken by Party B. The taxes incurred from the transfer of the equity interests, if any, shall be undertaken by Party B.
3. Representations and Warranties
3.1. Party A represents and warrants to the following:
3.1.1 Party A is selling the equity interests in the Targets “as is” and makes no other representations, warranties or covenants, except as expressly provided in this Agreement.
3.1.2 Party A owns 100% of the equity interests of Targets.
3.1.3 Party A has good and marketable title to the equity interests of the Targets owned by Party A, free and clear of all encumbrances, subject to any transfer requirements in the People’s Republic of China.
3.1.4 Party A is duly organized and validly existing under the laws of the State of Nevada, and the Targets are registered under the proper governmental authorities as required under the laws of the People’s Republic of China.
3.1.5 Party A has the full right, power and authority to enter into this EIPA and to perform all of its obligations hereunder.
3.1.6 The execution and performance of this EIPA shall not breach any other signed material contract or EIPA to which Party A is a party.
3.1.7 The representative who has executed the EIPA and this EIPA on behalf of Party A has been duly authorized to execute this Agreement.
3.2 Party B represents and warrants to the following:
3.2.1 Party B is an individual citizen of the People’s Republic of China.
3.2.2 Party B has the full right, power and authority to enter into this EIPA and to perform all of its obligations hereunder.
3.2.3 The execution of this EIPA shall not breach any other written material contract or to which Party B is a party.
3.2.4 Party B is duly authorized to execute the EIPA and this EIPA.
3.2.5 Party B has been given full opportunity to review all documents requested by Party B, including, but not limited to the un-audited financial statements of Target, to evaluate this transaction and acknowledges that it has been given sufficient information to make its investment decision in the Target. Party B acknowledges that the sale of the Targets is “as is.”
3.2.6 Party B represents and warrants that under the relevant laws of the PRC it shall assume all liabilities of the Target pursuant to this Agreement and agrees that it shall assume all liabilities of the Target, whether known, unknown or contingent after the Closing.
4. Closing
4.1 The Closings hereunder shall take place electronically, or at such other place or by such other means as agreed by the Parties.
4.2 Party B shall deliver to Party A at the Closing, the consideration by wire transfer of immediately available funds, check or cash funds.
4.2 As soon as practical after the Closing Date, Party B shall deliver to Party A evidence of the transfer of the specified equity interest in the Target.
4.2 Party A shall deliver to Party B evidence of the satisfaction of the conditions specified in Section 1.2 and the Parties shall exchange the Mutual Release.
5. Notices and Delivery
5.1 The Parties acknowledge that any notice and other correspondence concerning this Agreement (“Notice”) shall be made in writing and shall be (a) personally delivered, or (b) sent by overnight courier and transmitted electronically, in each case addressed or emailed to the Party to whom notice is being given at its address set forth in the Preamble to this Agreement, or as to each Party, at such other address or e-mail as may hereafter be designated by such Party in a written notice to the other Party complying as to the delivery with the terms of this paragraph 5.1.
5.2 All such notices, requests, demands and other communications shall be deemed to have been given on (a) the date received if personally delivered, or (b) the date sent if sent by overnight courier and e-mail.
6. Amendment, Termination and Transfer of this Agreement
6.1 Any amendment or modification to this EIPA is required to be approved and negotiated by all Parties and shall only be effective by way of a written agreement executed by the Parties.
6.2 This EIPA may be terminated by either Party A or Party B:
6.2.1 At any time prior to the Closing Date, by mutual agreement between Party A and Party B;
6.2.2 By a non-breaching Party, in the event a Party breaches this EIPA, and such breach shall not be corrected within thirty days of written notice of the breach sent by the non-breaching Party.
6.2.3 If the transactions contemplated by this EIPA cannot be consummated as consequence of a force majeure event.
6.3 Any Party seeking to terminate this EIPA shall provide written notice of the termination to the other Party, which termination shall become effective upon receipt of the other Party of the written notice.
6.4 The Parties agree not to transfer any or all of their obligations under this EIPA without the written agreement of the non-transferring Party.
7. Dispute Resolution
7.1 This EIPA shall be governed by and construed under the internal laws of the People’s Republic of China.
7.2 This EIPA shall be governed by procedures other than litigation for settling all claims and disputes under the method set forth below:
7.2.1 The Parties agree to attempt in good faith to settle any dispute arising under or relating to this EIPA by mediation before the Hong Kong International Arbitration Centre (HKIAC) under the then-current version of HKIAC’s Commercial Mediation Rules. The place of mediation shall be in Hong Kong and three mediators shall be appointed, one by Party A, one by Party B, and one who shall be selected by the Parties mutual agreement.
7.2.2 If the mediation is abandoned by the mediator or is otherwise concluded without the dispute being resolved, the parties may, at their option refer the dispute to arbitration at HKIAC in accordance with its then-current International Arbitration Rules.
8. Miscellaneous
8.1 Taxes and expenses incurred by the transactions contemplated by this EIPA shall be borne by the Parties in accordance with their respective obligations, unless otherwise provided. The tax related to the change of registration shall be borne by the Target.
8.2 This EIPA shall not be modified or altered except in a writing executed by both of the Parties. For matters outside of this EIPA, the Parties shall sign a supplemental agreement. The supplemental agreement, together with this EIPA, shall constitute the entire agreement and have the same legal effect.
8.3 This EIPA shall be effective immediately upon the execution by the Parties. This EIPA may be executed in any number of counterparts, each of which when so executed and delivered shall be deemed to be an original and all of which counterparts, taken together, shall constitute one and the same instrument.
8.4 Any provision of this EIPA which is prohibited or unenforceable shall be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof.
8.5 Section headings in this EIPA are included for convenience of reference only and shall not constitute a part of this EIPA for any other purpose.
IN WITNESS WHEREOF, the parties hereto have caused this EIPA to be executed by their respective officers thereunto duly authorized as of the date first above written.
PARTY A:
HEAT PHE, INC.
By: /s/ Jimin Zhang
Name: Jimin Zhang
Title: President
PARTY B:
/s/ Mr. Wang, Yin Kai
Name: Mr. Wang Ying Kai
Exhibit 10.32
EQUITY INTEREST PURCHASE AGREEMENT
Party A: Heat HP, Inc., a corporation organized under the laws of the state of Nevada with its registered address at 1802 North Carson Street, Suite 212, Carson City NV 89701.
Party B: Mr. He Yi with an address of Building 7-1-301, No.7 Yao Jia Yuan Xi Li, Chaoyang District Beijing China.
This Equity Interest Purchase Agreement (the “EIPA”) is executed as of September 30, 2019 by and among Party A and Party B. Each of Party A and Party B shall be referred to as a “Party,” and collectively, the “Parties.”
WHEREAS,
|
(1) |
Party A is a corporation duly organized and validly existing under the laws of the state of Nevada and owns 52% of the equity interests of SmartHeat Jinhui (Beijing) Energy Technology Ltd (“Target”); |
|
(2) |
Target is a corporation duly organized and validly existing under the laws of the Peoples Republic of China (“PRC”); and |
|
(3) |
Buyer is an individual citizen of the age of majority residing in the PRC with all authority under the laws of PRC to enter into this Agreement. |
NOW THEREFORE, in consideration of the representations, warranties, and agreements contained in this EIPA, the Parties hereto agree as follows:
1. Equity Interest Purchase and Consideration
1.1. Party B hereby agrees to purchase, and Party A hereby agrees to sell and transfer to Party B, 30% of its equity interests in the Target to Party B effective as of August 30, 2019 (the “Closing Date”) for RMB 30 subject to the termination provisions set forth in paragraph 6 below.
1.2. The Parties agree that such sale and purchase shall be conditioned upon approval by the Board of Directors of Party A and a majority of its stockholders.
2. Change of Registration
2.1. The Parties hereby agree that Party B shall file the applicable registration change in the State Administration for Industry and Commerce in the People’s Republic of China as equity interests in the Target are sold and transferred by Party A and purchased and assumed by Party B to carry out the intent of this EIPA and Party A shall cooperate with Party B in any such filing.
2.2. The cost related to the registration change with the People’s Republic of China shall be undertaken by Party B. The taxes incurred from the transfer of the equity interests, if any, shall be undertaken by Party B.
3. Representations and Warranties
3.1. Party A represents and warrants to the following:
3.1.1 Party A is selling the equity interests in the Target “as is” and makes no other representations, warranties or covenants, except as expressly provided in this Agreement.
3.1.2 Party A owns 52% of the equity interests in Target.
3.1.3 Party A has good and marketable title to the equity interests of the Target owned by Party A, free and clear of all encumbrances, subject to any transfer requirements in the People’s Republic of China.
3.1.4 Party A is duly organized and validly existing under the laws of the State of Nevada, and the Target is registered under the proper governmental authorities as required under the laws of the People’s Republic of China.
3.1.5 Party A has the full right, power and authority to enter into this EIPA and to perform all of its obligations hereunder.
3.1.6 The execution and performance of this EIPA shall not breach any other signed material contract or EIPA to which Party A is a party.
3.1.7 The representative who has executed the EIPA and this EIPA on behalf of Party A has been duly authorized to execute this Restated Agreement.
3.2 Party B represents and warrants to the following:
3.2.1 Party B is an individual citizen of the People’s Republic of China.
3.2.2 Party B has the full right, power and authority to enter into this EIPA and to perform all of its obligations hereunder.
3.2.3 The execution of this EIPA shall not breach any other written material contract or to which Party B is a party.
3.2.4 Party B is duly authorized to execute the EIPA and this EIPA.
3.2.5 Party B has been given full opportunity to review all documents requested by Party B, including, but not limited to the un-audited financial statements of Target, to evaluate this transaction and acknowledges that it has been given sufficient information to make its investment decision in the Target. Party B acknowledges that the sale of the Target is “as is.”
3.2.6 Party B represents and warrants that under the relevant laws of the PRC it shall assume all liabilities of the Target pursuant to this Agreement and agrees that it shall assume all liabilities of the Target, whether known, unknown or contingent after the Closing.
4. Closing
4.1 The Closings hereunder shall take place electronically, or at such other place or by such other means as agreed by the Parties.
4.2 Party B shall deliver to Party A at the Closing, the consideration by wire transfer of immediately available funds, check or cash funds.
4.2 As soon as practical after the Closing Date, Party B shall deliver to Party A evidence of the transfer of the specified equity interest in the Target.
4.2 Party A shall deliver to Party B evidence of the satisfaction of the conditions specified in Section 1.2 and the Parties shall exchange the Mutual Release.
5. Notices and Delivery
5.1 The Parties acknowledge that any notice and other correspondence concerning this Agreement (“Notice”) shall be made in writing and shall be (a) personally delivered, or (b) sent by overnight courier and transmitted electronically, in each case addressed or emailed to the Party to whom notice is being given at its address set forth in the Preamble to this Agreement, or as to each Party, at such other address or e-mail as may hereafter be designated by such Party in a written notice to the other Party complying as to the delivery with the terms of this paragraph 5.1.
5.2 All such notices, requests, demands and other communications shall be deemed to have been given on (a) the date received if personally delivered, or (b) the date sent if sent by overnight courier and e-mail.
6. Amendment, Termination and Transfer of this Restated Agreement
6.1 Any amendment or modification to this EIPA is required to be approved and negotiated by all Parties and shall only be effective by way of a written agreement executed by the Parties.
6.2 This EIPA may be terminated by either Party A or Party B:
6.2.1 At any time prior to the Closing Date, by mutual agreement between Party A and Party B;
6.2.2 By a non-breaching Party, in the event a Party breaches this EIPA, and such breach shall not be corrected within thirty days of written notice of the breach sent by the non-breaching Party.
6.2.3 If the transactions contemplated by this EIPA cannot be consummated as consequence of a force majeure event.
6.3 Any Party seeking to terminate this EIPA shall provide written notice of the termination to the other Party, which termination shall become effective upon receipt of the other Party of the written notice.
6.4 The Parties agree not to transfer any or all of their obligations under this EIPA without the written agreement of the non-transferring Party.
7. Dispute Resolution
7.1 This EIPA shall be governed by and construed under the internal laws of the People’s Republic of China.
7.2 This EIPA shall be governed by procedures other than litigation for settling all claims and disputes under the method set forth below:
7.2.1 The Parties agree to attempt in good faith to settle any dispute arising under or relating to this EIPA by mediation before the Hong Kong International Arbitration Centre (HKIAC) under the then-current version of HKIAC’s Commercial Mediation Rules. The place of mediation shall be in Hong Kong and three mediators shall be appointed, one by Party A, one by Party B, and one who shall be selected by the Parties mutual agreement.
7.2.2 If the mediation is abandoned by the mediator or is otherwise concluded without the dispute being resolved, the parties may, at their option refer the dispute to arbitration at HKIAC in accordance with its then-current International Arbitration Rules.
8. Miscellaneous
8.1 Taxes and expenses incurred by the transactions contemplated by this EIPA shall be borne by the Parties in accordance with their respective obligations, unless otherwise provided. The tax related to the change of registration shall be borne by the Target.
8.2 This EIPA shall not be modified or altered except in a writing executed by both of the Parties. For matters outside of this EIPA, the Parties shall sign a supplemental agreement. The supplemental agreement, together with this EIPA, shall constitute the entire agreement and have the same legal effect.
8.3 This EIPA shall be effective immediately upon the execution by the Parties. This EIPA may be executed in any number of counterparts, each of which when so executed and delivered shall be deemed to be an original and all of which counterparts, taken together, shall constitute one and the same instrument.
8.4 Any provision of this EIPA which is prohibited or unenforceable shall be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof.
8.5 Section headings in this EIPA are included for convenience of reference only and shall not constitute a part of this EIPA for any other purpose.
IN WITNESS WHEREOF, the parties hereto have caused this EIPA to be executed by their respective officers thereunto duly authorized as of the date first above written.
PARTY A:
HEAT HP, INC.
By:/s/ Jimin Zhang
Name: Jimin Zhang
Title: President
PARTY B:
Mr. He, Yi
Name: Mr. He Yi