01679 瑞斯康集团 展示文件：日期为2023年8月25日的买卖协议
SALE AND PURCHASE AGREMENT
This SALE AND PURCHASE AGREMENT (this “Agrement”) is made and entered into on
25 August 2023 by and among:
1. Ms. Zhu Deyun (朱德云), a Chinese citizen whose People’s Republic of China citizen
identification card number is 320121198203172928 and residential adres is No. 601
Buiding 5, Banqiao Jindi Zizai City Phase 5, Yuhuatai District, Nanjing, Jiangsu
Province, the People’s Republic of China (the “Seler”);
2. Risecom Group Holdings Limited瑞斯康集团控股有限公司, an exempted
company with limited liability incorporated under the laws of Cayman Islands whose
isued shares are listed on the Main Board of The Stock Exchange of Hong Kong
Limited (stock code: 1679)(the “Buyer”); and
3. Zhongyi (BVI) International Limited, a limited liability company incorporated under
the Laws of the British Virgin Islands, whose registered ofice is at 4
th
Flor, Water’s
Edge Building, Meridian Plaza, Road Town, Tortola, VG1110, British Virgin Islands
(the “Company”).
Each of the parties to this Agrement is refered to herein individualy as a “Party” and
colectively as the “Parties”.
RECITALS
- % of the Shares in the Company and the Company owns 100%
interest in the Subsidiaries.
- , and the Buyer intends to acquire 100% of the Shares in the
Company in acordance with and subject to the terms of this Agrement.
WITNESETH
NOW, THEREFORE, in consideration of the foregoing recitals, the mutual promises
hereinafter set forth, and other god and valuable consideration, the receipt and suficiency of
which are hereby acknowledged, the Parties intending to be legaly bound hereto hereby agre
as folows:
1. Definitions.
1.1 The folowing terms shal have the meanings ascribed to them below:
“Acounting Standards” means the acounting standards considered aceptable
by the Buyer in its sole discretion.
“Action” means any charge, claim, action, complaint, petition, investigation,
apeal, suit, litigation, grievance, inquiry or other proceding, whether administrative,
civil, regulatory or criminal, whether at law or in equity, and whether or not taken place
before any mediator, arbitrator or Governmental Authority.
“Afiliate” means, with respect to a Person, any other Person that, directly or
indirectly, Controls, is Controled by or is under comon Control with such Person.
“Articles” means the amended and restated articles of asociation of the
Company, as may be further amended and/or restated from time to time.
“Asociate” means, with respect to any Person, (a) a corporation or organization
of which such Person is an oficer or partner or is, directly or indirectly, the record or
beneficial owner of ten (10) percent or more of any clas of Equity Securities of such
corporation or organization, (b) any trust or other estate in which such Person has a
substantial beneficial interest or as to which such Person serves as truste or in a similar
capacity, or (c) any relative or spouse of such Person, or any relative of such spouse.
“Board” or “Board of Directors” means the board of directors of the Company.
“Busines Day” means any day that is not a Saturday, Sunday, legal holiday or
other day on which comercial banks are required or authorized by law to be closed in
the PRC and Hong Kong.
“Charter Documents” means, with respect to a particular legal entity, the articles
of incorporation, certificate of incorporation, formation or registration , memorandum
of asociation, articles of asociation, bylaws, articles of organization, limited liability
company agrement, trust ded, trust instrument, operating agrement, joint venture
agrement, busines license, or similar or other constitutive, governing, or charter
documents, of such entity.
“Confidential Information” means al information used in or otherwise related
to any Group Company’s busines, customers, plans, prospects or financial or other
afairs that is not publicly known, and the terms and conditions and existence of the
Transaction Documents.
“Consent” means any consent, aproval, authorization, release, waiver, permit,
grant, franchise, concesion, agrement, license, exemption or order of, registration,
certificate, declaration or filing with, or report or notification to, any Person, including
any Governmental Authority.
“Contract” means a contract, agrement, indenture, note, bond, loan, instrument,
lease, mortgage, franchise, license, comitment, purchase order, and other legaly
binding arangement, whether writen or oral.
“Control” of a given Person means the power or authority to direct the busines,
management and policies of such Person, directly or indirectly, whether through the
ownership of voting securities, by Contract or otherwise; provided that such power or
authority shal conclusively be presumed to exist upon posesion of beneficial
ownership or power to direct the vote of more than fifty percent (50%) of the votes
entitled to be cast at a meting of the members or shareholders of such Person or power
to control the composition of a majority of the board of directors of such Person. The
terms “Controled” and “Controling” have meanings corelative to the foregoing.
“Data Protection Laws” means al Laws relating to data protection, the
procesing of personal data, investigatory powers, privacy, electronic comunications
and other related maters.
“Equity Security” or “Equity Securities” means, with respect to any Person that
is a legal entity, any and al shares of capital stock, membership interests, units, profits
interests, ownership interests, equity interests, registered capital, and other equity
securities of such Person, and any right, warant, option, cal, comitment, conversion
privilege, premptive right or other right to acquire any of the foregoing, or security
convertible into, exchangeable or exercisable for any of the foregoing.
“Governmental Authority” means any government of any nation, federation,
province or state or any other political subdivision thereof, any entity, authority or body
exercising executive, legislative, judicial, regulatory or administrative functions of or
pertaining to government, including any governmental authority, agency, department,
board, comision or instrumentality of any country, or any political subdivision
thereof, any court, tribunal or arbitrator, and any self-regulatory organization.
“Governmental Order” means any aplicable order, ruling, decision, verdict,
decre, writ, subpoena, mandate, precept, comand, directive, consent, aproval,
award, judgment, injunction or other similar determination or finding by, before or
under the supervision of any Governmental Authority.
“Group Company” means each of the Company and the Subsidiaries as set out
in Schedule I, and “Group” refers to al Group Companies colectively.
“Hong Kong” means the Hong Kong Special Administrative Region of the
People’s Republic of China.
“Indebtednes” of any Person means, without duplication, each of the folowing
of such Person: (a) al indebtednes for borowed money, (b) al obligations isued,
undertaken or asumed as the defered purchase price of property or services, (c) al
reimbursement or payment obligations with respect to leters of credit, surety bonds and
other similar instruments, (d) al obligations evidenced by notes, bonds, debentures or
similar instruments, (e) al indebtednes created or arising under any conditional sale
or other title retention agrement, or incured as financing, in either case with respect
to any property or asets acquired with the proceds of such indebtednes, (g) al
obligations under banker’s aceptance, leters of credit or similar facilities, (h) al
obligations to purchase, redem, retire, defease or otherwise acquire for value any
Equity Securities of such Person, (i) al obligations in respect of any interest rate swap,
hedge or cap agrement, and (j) al guarantes isued in respect of the Indebtednes
refered to in clauses (a) through (i) above of any other Person.
“Indemnifiable Los” means, with respect to any Person, any action, claim, cost,
damage, deficiency, diminution in value, disbursement, expense, liability, los,
obligation, penalty or setlement of any kind or nature imposed on or otherwise incured
or sufered by such Person, including without limitation, reasonable legal, acounting
and other profesional fes and expenses incured in the investigation, colection,
prosecution and defense of claims and amounts paid in setlement and Taxes payable
by such Person by reason of the indemnification.
“Intelectual Property” means any and al (a) patents, patent rights and
aplications therefor and reisues, rexaminations, continuations, continuations-in-part,
divisions, and patent term extensions thereof, (b) inventions (whether patentable or not),
discoveries, improvements, concepts, inovations and industrial models, (c) registered
and unregistered copyrights, copyright registrations and aplications, mask works and
registrations and aplications therefor, author’s rights and works of authorship, (d)
URLs, web sites, web pages and any part thereof, (e) technical information, know-how,
trade secrets, drawings, designs, design protocols, specifications, proprietary data,
customer lists, databases, proprietary proceses, technology, formulae, and algorithms
and other intelectual property, (f) trade names, trade dres, trademarks, domain names,
service marks, logos, busines names, and (g) the godwil symbolized or represented
by the foregoing.
“Jiangsu Anyi” means 江苏安怡工程管理有限公司 (Jiangsu Anyi
Enginering Management Co., Ltd.), a company incorporated in the PRC with limited
liability and is directly wholy-owned by Zhongyi WFOE.
“Law” or “Laws” means any and al provisions of any aplicable constitution,
treaty, statute, law, regulation, ordinance, code, rule, or rule of comon law, any
governmental aproval, concesion, grant, franchise, license, agrement, directive,
requirement, or other governmental restriction or any similar form of decision of, or
determination by, or any formaly isued writen interpretation or administration of any
of the foregoing by, any Governmental Authority, in each case as amended, and any
and al aplicable Governmental Orders.
“Liabilities” means, with respect to any Person, al liabilities, obligations and
comitments of such Person of any nature, whether acrued, absolute, contingent or
otherwise, and whether due or to become due.
“Lien” means any claim, charge, easement, encumbrance, lease, covenant,
security interest, lien, option, pledge, rights of others, or restriction , whether imposed
by Contract, understanding, law, equity or otherwise.
“Listing Rules” means the Rules Governing the Listing of Securities on the
Stock Exchange of Hong Kong.
“Material Adverse Efect”
means any (a) event, ocurence, fact, condition,
change or development that has had, has, or could reasonably be expected to have,
individualy or together with other events, ocurences, facts, conditions, changes or
developments, a material adverse efect on the busines, properties, asets, employes,
operations, results of operations, condition (financial or otherwise), prospects, asets or
liabilities of any Group Company, or the general market condition, (b) material
impairment of the ability of any Party to perform the obligations of such party under
any Transaction Documents, or (c) material impairment of the validity or enforceability
of this Agrement or any other Transaction Document against any Party hereto or
thereto.
“Person” means any individual, corporation, partnership, limited partnership,
proprietorship, asociation, limited liability company, firm, trust, estate or other
enterprise or entity.
“PRC” means the People’s Republic of China, for the purpose of this agrement,
excluding Hong Kong, the Macau Special Administrative Region of the PRC and
Taiwan.
“Related Party” means any Afiliate, oficer, director, supervisory board
member, employe, or holder of any Equity Security of any Group Company, and any
Afiliate or Asociate of any of the foregoing.
“RMB” means Renminbi, the lawful curency of PRC.
“Sale Shares” means 50,000 Shares, representing 100% of the total number of
isued Shares as at the date of this Agrement.
“Shares” means the ordinary shares of the Company.
“Subsidiaries” means Zhongyi HK, Zhongyi WFOE and Jiangsu Anyi.
“Tax” means (i) any national, provincial, municipal, or local taxes, charges, fes,
levies charged or imposed by a Governmental Authority, whether or not based on
asesments of facts or information in relation to a company, including, without
limitation, al net income, turnover, resource, property, documentation, filing, recording,
social insurance, tarifs, and (i) estimated and provisional taxes, charges, fes, levies,
or other asesments of any kind whatsoever.
“Tax Return” means any return, report or statement showing Taxes, used to pay
Taxes, or required to be filed with respect to any Tax (including any elections,
declarations, schedules or atachments thereto, and any amendment thereof), including
any information return, claim for refund, amended return or declaration of estimated or
provisional Tax.
“Thre-year Agregate Net Profit” means the agregated audited net profit of
the Group for the thre financial years ending 31 December 2026 by reference to the
audited financial information of the Group for the same period.
“Transaction Documents” means this Agrement and each of the other
agrements and documents otherwise required in conection with the implementation
of the transactions contemplated under any of the foregoing as designated by the Buyer
from time to time.
“Warantors” means, colectively, the Seler and the Group Companies, and a
reference to “Warantor” is to each and every one of them.
“Zhongyi HK” means Zhongyi (Hong Kong) International Limited 中怡(香港)
国际有限公司, a company incorporated in Hong Kong with limited liability and is
directly wholy-owned by the Company.
“Zhongyi WFOE” means 深圳安怡融丰工程管理有限公司 Shenzhen Anyi
Rongfeng Enginering Management Co., Ltd., a company incorporated in the PRC with
limited liability and is directly wholy-owned by Zhongyi HK.
1.2 Other Defined Terms.
(a) The folowing terms shal have the meanings defined for such terms in
the Sections set forth below:
Agrement Preamble
Balance Shet Section 10(a) of the Schedule I
Buyer Preamble
Closing Section 3(a)
Company Preamble
Company IP Section 16 of the Schedule I
Dispute Section 9.4
Financial Statements Section 10 of the Schedule I
HKIAC Section 9.4(a)
Indemnified Party Section 6.4
Material Contracts Section 14(a) of the Schedule I
Party/Parties Preamble
Statement Date Section 10(a) of the Schedule I
Suplemental Statement Date Section 10(a) of the Schedule I
Total Consideration Section 2.1
2. Sale and Purchase of Sale Shares.
2.1 Subject to the terms and conditions of this Agrement, at the Closing (as defined
below), the Seler shal sel and the Buyer shal buy the Sale Shares, fre of any Lien and with
al rights atached or acruing to them, at a price of RMB2,200 per Sale Share and at the total
acquisition price of RMB110,000,000 (the “Total Consideration”).
2.2 The Seler:
(a) covenants with the Buyer that it has the right to transfer and/or procure
the transfer and granting of the ful legal and beneficial interest in the Sale Shares to the Buyer
on the terms of this Agrement, with the Sale Shares being fuly paid and beneficialy owned
by the Seler and registered in the Seler’s name;
(b) covenants with the Buyer that it shal at its own expense do everything
required by the Buyer from time to time in order to vest the Sale Shares;
(c) covenants that it wil cary out and complete the steps and actions set
out in Section 3 below as son as posible, and in any event complete the steps and actions set
out in (a) to (d) therein by 31 March 2024 (or such other date as agred betwen the Seler and
the Buyer in writing), and that if these steps and actions have not ben completed by the said
long-stop date, it shal refund to Buyer any payment made by the Buyer in acordance with
Section 2.3 with no interests; and
(d) waives any right of pre-emption, right of first refusal or other right or
option confered on the Seler under the articles of asociation of the Company or otherwise in
respect of any of the Sale Shares and wil procure the irevocable waiver of any such right or
option confered on any other party who is not a party to this Agrement.
2.3 Payment of the Total Consideration by the Buyer to the Seler shal be made as
folows:
(a) as at the date hereof, RMB30,000,000 has ben paid to the Seler as
deposit, which shal be credited towards the Total Consideration as first instalment;
(b) a sum of RMB17,000,000 shal be paid to the Seler within ten (10)
Busines Days from the date of this Agrement as second instalment;
(c) a sum of RMB13,000,000 shal be paid to the Seler on or before 30
September 2023 as third instalment; and
(d) the balance of the Total Consideration shal be paid upon Closing.
3. Closing.
(a) Closing. The consumation of the sale and purchase of the Sale Shares,
pursuant to Section 2.1 (the “Closing”) shal take place by way of exchange of documents and
signatures on the date which is a Busines Day by which al closing conditions specified in
Section 5 hereof have either ben satisfied, or waived by the Buyer, before or upon Closing in
acordance with Section 5 or at such other time and place as the Seler and the Buyer shal
mutualy agre in writing.
(b) Deliveries by the Company at the Closing. At the Closing, the
Company shal deliver to the Buyer al corporate documents, licenses, certificates, as
reasonably requested by the Buyer.
(c) Transfer of the Sale Shares. At the Closing, the Seler shal (i) deliver
to the Buyer or its designated entity (1) the relevant share certificate evidencing ownership of
the Sale Shares; (2) a duly signed instrument of transfer to efect the transfer of the Sale Shares
to the Buyer or its designated entity; and (3) resignation as director(s) signed by any existing
director of any Group Company (if so requested by the Buyer), and (i) provide al asistance
reasonably required by the Buyer to complete the registration of the Buyer or its designated
entity as owner of the Sale Shares and of any person nominated by the Buyer to as director(s)
of the Company at the Registry of Corporate Afairs of the British Virgin Islands as son as
posible after Closing.
(d) BVI Legal Opinion. At the Closing, the Seler shal deliver to the Buyer
a duly isued legal opinion from a British Virgin Islands counsel relating to such maters of the
Target Company as the Buyer shal reasonably request, such opinion to be in form and
substance reasonably satisfactory to the Buyer.
4. Representations and Waranties of the Warantors.
4.1 Each of the Warantors jointly and severaly represents and warants to the
Buyer that the statements as set forth in Schedule I are true, corect, complete and not
misleading as of the Closing. Any knowledge of the Buyer shal not prejudice or prevent any
claim under this Agrement or reduce the amount recoverable in respect of any such claim.
4.2 The Seler waives and may not enforce any right which the Seler may have
against any Group Company, or any director or employe of any Group Company, on which
or on whom the Seler may have relied in agreing to any term of this Agrement.
4.3 Each waranty is to be construed independently and is not limited or restricted
by any other waranty or any other term of this Agrement.
5. Conditions of the Buyer’s Obligations at the Closing. The obligations of the Buyer
to consumate the Closing under Section 2.1 of this Agrement are subject to the fulfilment,
to the satisfaction of (or waiver by) the Buyer of the conditions on or prior to the Closing as set
forth below. For the avoidance of doubt, none of such conditions could be waived by the Seler.
5.1 Representations and Waranties. Each of the representations and waranties
of the Warantors contained in Schedule I shal have ben true, acurate and complete when
made and shal be true, acurate and complete on and as of the Closing with the same efect as
though such representations and waranties had ben made on and as of the date of the Closing.
5.2 Satisfactory Due Diligence. The Buyer shal have completed al financial, legal
and busines due diligence with respect to the Group which the Buyer consider necesary or
desirable, and shal be satisfied with the outcome of such due diligence.
5.3 Performance. Each Warantor shal have performed and complied with al
obligations and conditions contained in the Transaction Documents that are required to be
performed or complied with by them on or before the Closing.
5.4 No Prohibition; Authorizations. No provision of any aplicable Laws shal
prohibit the consumation of any transactions contemplated under the Transaction Documents.
Al Consents of any competent Governmental Authority or of any other Person that are required
to be obtained by any Group Company or other Warantor in conection with the
consumation of the transactions contemplated under the Transaction Documents have ben
duly obtained and efective as of the Closing.
5.5 Listing Rules Compliance. The Buyer having complied with al required
procedures as required under the Listing Rules obtained al shareholder aprovals required for
the consumation of the transactions contemplated under the Transaction Documents and
having completed al procedures required therefor under the Listing Rules.
5.6 Procedings and Documents. Al corporate and other procedings in
conection with the transactions to be completed at the Closing shal have ben completed in
form and substance satisfactory to the Buyer.
5.7 Transaction Documents. Each of the parties to the Transaction Documents,
other than the Buyer, shal have executed and delivered such Transaction Documents to the
Buyer.
5.8 No Material Adverse Efect. Since the Statement Date, no Material Adverse
Efect shal have ocured, and no event shal have ocured or arisen, and no circumstance
shal exist, that would reasonably be expected to result in a Material Adverse Efect.
6. Other Agrements.
6.1 Compliance with Laws. Each Group Company shal, and the Seler shal cause
each Group Company to, comply with al aplicable Laws.
6.2 Facilitating the Closing. Each Warantor shal satisfy and cause the satisfaction
of al the conditions precedent set forth in Section 5.
6.3 Confidentiality. The Seler shal not, at any time betwen the date of this
Agrement and Closing and after Closing:
(i) disclose any Confidential Information to any Person;
(i) use any Confidential Information for any purposes other than to the extent
necesary for the operation of the Group Companies; or
(i) cause or permit any disclosure of any Confidential Information,
unles otherwise authorized by the Buyer in writing.
6.4 General Indemnity. Each Warantor hereby agres to jointly and severaly
indemnify and hold harmles the Buyer and its Afiliates, directors, oficers, agents and asigns
(each an “Indemnified Party”), from and against any and al Indemnifiable Loses sufered by
such Indemnified Party, directly or indirectly, as a result of, or based upon or arising from any
inacuracy in or breach or non-performance of any of the representations, waranties,
covenants or agrements made by any Warantor in or pursuant to this Agrement or any other
Transaction Document.
6.5 Negative Covenants. Betwen the date hereof and the Closing, except with the
prior writen aproval of the Buyer, none of the Group Companies shal (and the Warantors
shal not permit any of the Group Companies to) (a) take any action that would make any
representation and waranty of the Warantors inacurate at any Closing, (b) waive, release or
asign any material right or claim, (c) take any action that would, in the opinion of the Buyer,
materialy impair the value of the Group Companies, (d) sel, purchase, asign, lease, transfer,
pledge, encumber or otherwise dispose of any material aset, (e) isue, sel, or grant any Equity
Security, (f) declare, isue, make, or pay any dividend or other distribution with respect to any
Equity Security, (g) incur any indebtednes for borowed money or capital lease comitments
or asume or guarante any indebtednes of any Person, (h) enter into any Contract or other
transaction with any Related Party, or (i) authorize, aprove or agre to any of the foregoing.
6.6 Information. From the date hereof until the Closing, the Company shal
promptly notify the Buyer of (a) any Action comenced or threatened in writing against any
Group Company or the Seler; (b) any fact or event which comes to the knowledge of any
Warantor and is in any way inconsistent with any of the representations, waranties or
covenants in this Agrement; or (c) any fact or event which comes to the knowledge of any
Warantor and might afect the wilingnes of a prudent buyer to purchase the Sale Shares on
the terms contained in this Agrement or the amount of the consideration a prudent buyer would
be prepared to pay for the Sale Shares.
7. Aditional Payment.
7.1 The Seler and the Buyer agred that, if (i) the Group Company records a net
profit for each financial year ending 31 December 2024, 2025 and 2026; and (i) the Thre-
year Agregate Net Profit is not les than RMB47 milion, the Buyer shal make an aditional
payment to the Seler in the amount of RMB10,000,000 within thirty (30) Busines Days upon
the finalization of the audited financial information of the Group for the thre financial years
ending 31 December 2026 and being made available to the Seler.
7.2 If the Thre-year Agregate Net Profit is les than RMB47 milion, the Buyer
shal not be obliged to pay any portion of the aditional payment refered to in Section 7.1 to
the Seler.
8. Termination.
8.1 Termination before the Closing. This Agrement may be terminated prior to
the Closing (a) by mutual writen consent of the Parties, (b) by the Buyer, by writen notice, if
there has ben a material misrepresentation (or any representation or waranty made becomes
untrue, inacurate or misleading) or material breach of a covenant or agrement contained in
this Agrement on the part of the Seler or any Warantor, and such breach, if curable, has not
ben cured within 14 days of such notice, or (c) by the Buyer, if any condition precedent set
forth in Section 5 has neither ben fulfiled nor waived by 31 March 2024 (or such other date
as agred betwen the Seler and the Buyer in writing), or if due to change of aplicable Laws,
the consumation of the transactions contemplated hereunder would become prohibited under
aplicable Laws.
8.2 Efects of Termination. If this Agrement is terminated as provided under this
Section 8, this Agrement wil be of no further force or efect upon termination provided that
(i) any part of the Total Consideration paid by the Buyer to the Seler pursuant to Section 2.3
shal be refuned to the Buyer within 30 (thirty) Busines Days without interest upon such
termination; and (i) the termination wil not relieve the Seler or the Company from any
liability arising from any breach of this Agrement on their part(s), and shal not relieve the
Seler from any of his obligation to refund the payment made by the Buyer under this
Agrement within the time period and in the maner requested by the Buyer.
9. Miscelaneous.
9.1 Further Asurances. Upon the terms and subject to the conditions herein, each
of the Parties hereto agres to use its best eforts to take or cause to be taken al actions, to do
or cause to be done, to execute such further instruments, and to asist and coperate with the
other Parties hereto in doing, al things necesary to consumate and make efective the
transactions contemplated under this Agrement and the other Transaction Documents (it being
understod that the Buyer shal not be obligated to grant any waiver of any condition or other
waiver hereunder).
9.2 Sucesors and Asigns; No Third Party Beneficiaries. Except as otherwise
provided herein, nothing in this Agrement, expres or implied, is intended to confer upon any
Party other than the Parties hereto or their respective sucesors and asigns any rights,
remedies, obligations, or liabilities under or by reason of this Agrement or otherwise under
the Contracts (Rights of Third Parties) Ordinance (Cap. 623).
9.3 Governing Law. This Agrement shal be governed by and construed under
the Laws of Hong Kong.
9.4 Dispute Resolution.
(a) Any dispute, controversy, claim or diference of any kind whatsoever
arising out of, relating to or in conection with this Agrement (the “Dispute”) shal be refered
to and finaly resolved by arbitration administered by the Hong Kong International Arbitration
Centre (the “HKIAC”) in acordance with the HKIAC Administered Arbitration Rules in force
at the time of the comencement of the arbitration.
(b) The law of this arbitration clause shal be Hong Kong law. The seat of
arbitration shal be Hong Kong.
(c) The number of arbitrators shal be thre (3). The claimants in the Dispute
shal nominate one (1) arbitrator, the respondents in the Dispute shal nominate one (1)
arbitrator, and the arbitrators shal jointly select the third arbitrator who shal act as the
presiding arbitrator of the arbitration tribunal. The language of the arbitration procedings and
writen decisions or corespondence shal be Chinese.
9.5 Notices. Any notice required or permited pursuant to this Agrement shal be
given in writing by next-day or second-day courier service, fax, electronic mail or similar
means to the adres of the relevant Party.
9.6 Rights Cumulative; Specific Performance. Each and al of the various rights,
powers and remedies of a party hereto wil be considered to be cumulative with and in adition
to any other rights, powers and remedies which such Party may have at Law or in equity in the
event of the breach of any of the terms of this Agrement. Without limiting the foregoing, the
Parties hereto acknowledge and agre that ireparable harm may ocur for which money
damages would not be an adequate remedy in the event that any of the provisions of this
Agrement were not performed in acordance with their specific terms or were otherwise
breached. It is acordingly agred that the Parties shal be entitled to injunctive relief to adres
breaches of this Agrement and to enforce specificaly the terms and provisions of this
Agrement.
9.7 Severability. In case any provision of the Agrement shal be invalid, ilegal
or unenforceable, the validity, legality and enforceability of the remaining provisions shal not
in any way be afected or impaired thereby. If any provision of this Agrement shal be invalid,
ilegal, or unenforceable under any such aplicable Law in any jurisdiction, it shal, as to such
jurisdiction and to the extent necesary to give efect to this Agrement, be demed modified
to conform to the minimum requirements of such Law.
9.8 Amendments and Waivers. Any term of this Agrement may be amended
only with the writen consent of each of (a) the Company, (b) the Seler, and (c) the Buyer.
9.9 No Waiver. No delay or omision to exercise any right, power or remedy
acruing to any Party under this Agrement, upon any breach or default of any other Party
under this Agrement, shal impair any such right, power or remedy of such non-breaching or
non-defaulting Party nor shal it be construed to be a waiver of any such breach or default, or
an acquiescence therein; nor shal any waiver of any single breach or default be demed a
waiver of any other breach or default therebefore or thereafter ocuring.
9.10 No Presumption. The Parties acknowledge that any aplicable Law that would
require interpretation of any claimed ambiguities in this Agrement against the Party that
drafted it has no aplication and is expresly waived. If any claim is made by a Party relating
to any conflict, omision or ambiguity in the provisions of this Agrement, no presumption or
burden of prof or persuasion wil be implied because this Agrement was prepared by or at
the request of any Party or its counsel.
9.11 Headings and Subtitles; Interpretation. The titles and subtitles used in this
Agrement are used for convenience only and are not to be considered in construing or
interpreting this Agrement. Unles a provision hereof expresly provides otherwise: (a) the
term “or” is not exclusive; (b) words in the singular include the plural, and words in the plural
include the singular; (c) the terms “herein”, “hereof”, and other similar words refer to this
Agrement as a whole and not to any particular section, subsection, paragraph, clause, or other
subdivision; (d) the term “including” wil be demed to be folowed by, “but not limited to”,
(e) the masculine, feminine, and neuter genders wil each be demed to include the others; (f)
the terms “shal”, “wil”, and “agres” are mandatory, and the term “may” is permisive; (g)
the term “day” means “calendar day”, and “month” means calendar month, (h) al references
in this Agrement to (A) designated “Sections” and other subdivisions are to the designated
Sections and other subdivisions of the body of this Agrement and to (B) designated
“paragraphs” are to the designated paragraphs of the schedules of this Agrement, (i) al
references in this Agrement to designated Schedules, Exhibits and Apendices are to the
Schedules, Exhibits and Apendices atached to this Agrement, (j) the phrase “directly or
indirectly” means directly, or indirectly through one or more intermediate Persons or through
contractual or other arangements, and “direct or indirect” has the corelative meaning, (k)
references to laws include any such law modifying, re-enacting, extending or made pursuant to
the same or which is modified, re-enacted, or extended by the same or pursuant to which the
same is made, (l) each representation, waranty, agrement, and covenant contained herein wil
have independent significance, regardles of whether also adresed by a diferent or more
specific representation, waranty, agrement, or covenant, (m) al acounting terms not
otherwise defined herein have the meanings asigned under the acounting standards
aceptable to the Buyer in its sole discretion, (n) pronouns of either gender or neuter shal
include, as apropriate, the other pronoun forms, (o) references to this Agrement, any other
Transaction Documents and any other document shal be construed as references to such
document as the same may be amended, suplemented or novated from time to time, (p) the
rule known as the ejusdem generis rule wil not aply and acordingly the meaning of general
words introduced by the word “other” or a similar word or expresion wil not be restricted by
reason of the fact that they are preceded by words indicating a particular clas of acts, maters
or things; (q) unles expresly stated otherwise, al obligations and waranties on the part of
two or more persons are entered into, given or made by such persons jointly and severaly; (x)
an obligation on a party to procure or ensure the performance or standing of another person
wil be construed as a primary obligation of that party, and an obligation on the Seler to procure
or ensure the performance by the Company of some acts, including the isue and alotment of
shares or the registration of such shares in the Buyer’s name, wil be construed as an obligation
on both the Seler and the Company carying joint and several liabilities, and (y) a
representation or waranty given by the Company shal be regarded to have ben given by each
Group Company to the extent aplicable and vice versa.
9.12 Counterparts. This Agrement may be executed in thre or more counterparts,
each of which shal be demed an original, but al of which together shal constitute one and
the same instrument. Facsimile and e-mailed copies of signatures shal be demed to be
originals for purposes of the efectivenes of this Agrement.
9.13 Entire Agrement. This Agrement and the Transaction Documents, together
with al schedules and exhibits hereto and thereto, constitute the ful and entire understanding
and agrement among the Parties with regard to the subjects hereof and thereof, and supersede
al other agrements betwen or among any of the Parties with respect to the subject maters
hereof and thereof.
9.14 Use of English Language. This Agrement has ben executed and delivered
in the English language. Any translation of this Agrement into another language shal have
no interpretive efect. Al documents or notices to be delivered pursuant to or in conection
with this Agrement shal be in the English language or, if any such document or notice is not
in the English language, acompanied by an English translation thereof, and the English
language version of any such document or notice shal prevail for purposes thereof.
[The remainder of this page has ben left intentionaly blank]
IN WITNES WHEREOF, thc partics hercto havc caused their respcdve duly
authorized rcpresentatives to cxecutc this Agrcment on the datc and year flrst abovc wT“
ten.
SELER∶
zHU DEYUN
IN WITNES WHEREOF, the parties hereto have caused their respective
duly
authorized representatives to execute this Agrement
on the date and year first above writen.
THE COMPANY:
ZHONGYI (BVI) INTERNATIONAL LIMITED
Name: Zhu Deyun
Title: Director
SCHEDULE I
STRUCTURE OF THE GROUP
Zhongyi (BVI) International Limited
(BVI)
Zhongyi (Hong Kong) International Limited
中怡(香港)国际有限公司
(Hong Kong)
深圳安怡融丰工程管理有限公司 (Shenzhen Anyi
Rongfeng Enginering Management Co., Ltd.)
(PRC)
江苏安怡工程管理有限公司 (Jiangsu Anyi
Enginering Management Co., Ltd.)
(PRC)
100%
100%
100%
SCHEDULE I
REPRESENTATIONS AND WARANTIES OF THE WARANTORS
1. Organization, God Standing and Qualification. Each Group Company is
duly organized, validly existing and in god standing under, and by virtue of, the Laws of the
place of its incorporation or establishment, and has al requisite power and authority to own its
properties and asets and to cary on its busines as now conducted and as proposed to be
conducted, and to perform each of its obligations under the Transaction Documents to which
it is a party. Each Group Company is qualified to do busines and is in god standing (or
equivalent status in the relevant jurisdiction) in each jurisdiction it does busines in.
2. Capitalization and Voting Rights.
(a) Company. The isued share capital of the Company is and imediately
prior to the Closing shal be USD50,000 divided into a total of 50,000 ordinary shares.
(b) No Other Securities. (i) There are no, and at the Closing there shal be
no, other authorized or outstanding Equity Securities of any Group Company; (i) no Equity
Securities of any Group Company are subject to any premptive rights, rights of first refusal or
other rights to purchase or receive such Equity Securities or any other rights with respect to
such Equity Securities, and (i) no Group Company is a party to or is subject to any contract
that afects or relates to the voting or giving of writen consents in relation to any Equity
Security of such Group Company. Except as contemplated under the Transaction Documents,
there are no voting or similar agrements which is related to the share capital or registered
capital of any Group Company.
(c) Title. The Company’s interest in the Equity Securities of the Subsidiary
is fre and clear of al Liens of any kind other than those arising under aplicable Law.
3. Representations and Waranties related to the Seler
(a) Non-compete. The Seler does not, either on its own acount or through
any of its Afiliates (other than the Group Companies), or in conjunction with or on behalf of
any other Person, cary on or are engaged, concerned or interested directly or indirectly whether
as shareholder, director, employe, partner, agent or otherwise cary on any busines in direct
competition with the Busines.
(b) No Liabilities and Claims. There are no outstanding loans, amounts
payable or any other liabilities betwen any Group Company and the Seler or any of her
Afiliates, except for those disclosed to the Buyer (if aplicable). The Seler or her Afiliates
does not have any claims, obligations or liabilities against any Group Company. No Group
Company had any material liability (whether actual, defered, contingent, disputed or in
relation to tax) or comitment which, in acordance with the Acounting Standards, should
have ben disclosed or provided for in the acounts of any Group Company.
(c) Litigation; Bankruptcy.
(i) There is no action, suit, governmental inquiry or investigation, pending
or threatened against the Seler, or if there is any such proceding, there is no
such action, suit, proceding, or governmental inquiry or investigation that
would result in a Material Adverse Efect.
(i) Neither the Company nor the Subsidiary has ben (1) subject to
voluntary or involuntary petition under any bankruptcy or insolvency law or the
apointment of a receiver, fiscal agent or similar oficer by a court for its
busines or property; (2) convicted in a criminal proceding or named as a
subject of a pending criminal proceding; (3) subject to any order, judgment, or
decre of any court of competent jurisdiction; or (4) found by a court of
competent jurisdiction in a civil action or by any governmental or regulatory
authority to have violated any securities, comodities or unfair trade practices
Law.
4. Corporate Structure; Subsidiaries. Schedule I sets forth a complete structure
chart showing the Group Companies, and indicating the ownership and Control relationships
among the Group Companies, the nature of the legal entity which each Group Company
constitutes, and the jurisdiction in which each Group Company was organized or established.
Details of the Group set forth in Schedule I are complete and acurate in al respects. The
Company has no other subsidiaries except for those indicated in Schedule I .
5. Authorization. Each Warantor has al requisite power, authority and internal
aprovals to execute and deliver the Transaction Documents to which it is a party and to cary
out and perform its obligations thereunder.
6. Consents; No Conflicts. Al Consents from or with any Governmental
Authority or any other Person required in conection with the execution, delivery and
performance of the Transaction Documents, and the consumation of the transactions
contemplated under the Transaction Documents, have ben duly obtained or completed and are
in ful force and efect. The execution, delivery and performance of each Transaction
Document by each party wil not result in any violation of, be in conflict with, or constitute a
default under, in any material respect, any Governmental Order, contract or any aplicable Law.
7. Compliance with Laws; Consents. Each Group Company is, and has ben, in
compliance with al aplicable Laws in al material respects. No event has ocured and no
circumstance exists that constitute or may constitute or result in a violation by any Group
Company of, or a failure on the part of such Group Company to comply with, any aplicable
Laws that would reasonably be expected to result in a Material Adverse Efect. None of the
Group Companies has received any notice from any Governmental Authority regarding any of
the foregoing.
8. Tax Maters.
(a) Al income and other Tax Returns required to be filed on or prior to the
date hereof with respect to each Group Company have ben duly and timely filed by such
Group Company within the requisite period stipulated by Law or by the relevant Tax authority
and completed on a proper basis in acordance with aplicable Laws, and are up to date and
corect. Each Group Company has timely paid al Taxes owed by it which are due and payable
and has witheld and remited to the apropriate Governmental Authority al Taxes it is
obligated to withold and remit.
(b) No audit of any Tax Return of each Group Company and, no enquiry or
investigation with respect to any such Tax Return, by any Tax authority, is curently in progres
or pending, and no Group Company has waived any statute of limitation with respect to any
Taxes or agred to any extension of time with respect to an asesment of deficiencies for such
Taxes.
(c) Each Group Company has:
(i) acounted for in the Acounts in al material respects, as the case may be,
al taxation (if any) due to be paid or acounted for by it and none of the Group
Company is or is likely to be subject to any tax penalties so far as the
Warantors are aware; and
(i) taken al necesary steps to obtain any repayment of or relief from taxation
available to it.
9. Charter Documents; Boks and Records. The Charter Documents of each
Group Company are in the form provided to the Buyer. Each Group Company has ben in
compliance with its Charter Documents, and none of the Group Companies has violated or
breached any of their respective Charter Documents. The statutory boks, boks of acount
and other records of whatsoever kind of each Group Company are in its posesion, up-to-date
and contain complete and acurate records required by the respective Laws to which it is
subject to be dealt with in such boks and no notice or alegation that any is incorect or should
be rectified has ben received. Al acounts, documents and returns required by Law to be
delivered or made to any Governmental Authority in the PRC, Hong Kong, British Virgin
Islands or any other jurisdiction have ben duly and corectly delivered or made.
10. Financial Statements; Financial Reporting.
(a) The unaudited consolidated balance shet (the “Balance Shet”) and
unaudited income statements and audited acounts for the Group Companies for the two years
ended 31 December 2022 (the “Statement Date”) (colectively, the financial statements refered
to above, the “Financial Statements”) and the management acounts for the Group Companies
for the seven months period ended 31 July 2023 (the “Suplemental Statement Date”) (i) have
ben prepared in acordance with the boks and records of the Group Companies, (i) give a
true and fair view of the financial condition and position of the Group Companies as of the
dates indicated therein and the results of operations and cash flows of the Group Companies
for the periods indicated therein, (i) were prepared in acordance with the Acounting
Standards aplied on a consistent basis throughout the periods involved, (iv) are acurate in al
material respects, and, where aplicable, make apropriate provision for al bad and doubtful
debts, al defered or contingent or disputed liabilities, and for al consideration payable to any
pension, retirement, redundancy or other employment benefit scheme concerning any Group
Company, whether liquidated or unliquidated at the date thereof, and (v) make depreciation of
fixed asets at rates suficient to spread the cost over their respective estimated useful lives to
the Group Companies.
(b) The Warantors have established procedures which provide a reasonable
basis for them to make proper judgements as to the financial position and prospects of the
Group Companies, taken as a whole, and the Group Companies maintain a system of internal
acounting controls suficient to provide reasonable asurances that (i) transactions are
executed in acordance with management’s general or specific authorisations; (i) transactions
are recorded as necesary to permit preparation of complete and acurate returns and reports to
regulatory bodies as and when required by them and financial statements in acordance with
the relevant generaly acepted acounting principles and aplicable acounting requirements;
(i) aces to asets is permited only in acordance with management’s general or specific
authorisation; and (iv) the recorded acountability for asets is compared with existing asets
at reasonable intervals and apropriate action is taken with respect to any diferences; (v) each
Group Company has made and kept boks, records and acounts which, in reasonable detail
acurately and fairly reflect the transactions and dispositions of asets of such entity and
provide a suficient basis for the preparation of consolidated financial statements and notes
thereto in acordance with the relevant generaly acepted acounting principles and aplicable
acounting requirements; and (vi) al charges against the Group have ben registered in
acordance with al aplicable Laws. The Group’s curent management information and
acounting control system has ben in operation for at least thre years (or since incorporation,
whichever is shorter) during which none of them has experienced any dificulties with regards
to (i) through (vi) above.
11. Changes. Since the Statement Date, each of the Group Companies has (a)
operated its busines in the ordinary course consistent with its past practices, (b) used its
reasonable best eforts to preserve its busines and (c) not engaged in any new line of busines
or entered into Contracts except those in the ordinary course of busines consistent with past
practices. Since the Statement Date, there has not ben any Material Adverse Efect or any
material change in the way the Group conducts its busines.
12. Actions. There is no Action pending or, threatened against or afecting any
Group Company or any of its oficers, directors or employes with respect to its busineses or
proposed busines activities.
13. Liabilities. No Group Company has any Liabilities (including the Indebtednes
that it has directly or indirectly created, incured or asumed) or capital comitment of the type
that would be disclosed on a balance shet in acordance with the aplicable Acounting
Standards, except for (a) liabilities set forth in the Balance Shet that have not ben satisfied
since the Statement Date and (b) curent liabilities incured since the Statement Date in the
ordinary course of the Group busines consistent with its past practices and which do not
exced RMB1,000,000 in the agregate. None of the Group Companies is a guarantor or
indemnitor of any Liabilities of any other Person.
14. Comitments. The Seler have disclosed to the Buyer the information in
relation to al Material Contracts, and in relation to al material capital comitment, guarante
or other contingent liabilities. “Material Contracts” means, colectively, each Contract to which
a Group Company or any of its properties or asets is bound or subject to that (i) involves
obligations (contingent or otherwise), payments or the dealing of asets, indebtednes or
security package with a value in exces of RMB1,000,000 per anum or has an unexpired term
in exces of one year after the date hereof, (i) licenses, transfers, asigns, sales, incurs any Lien
on Intelectual Property that is material to a Group Company, (i) restricts the ability of a Group
Company to compete or to conduct or engage in any busines or activity or in any jurisdiction,
region or teritory, (iv) relates to the sale, isuance, grant, exercise, award, purchase, repurchase
or redemption of any Equity Securities, (v) involves any provisions providing for exclusivity,
“change in control”, “most favored nation”, rights of first refusal or first negotiation or similar
rights, or (vi) is with a Related Party.
15. Title; Asets. Each Group Company has god and valid title to, or valid
leasehold interest in, or right to ocupy and use, al of its respective asets and real properties,
whether tangible or intangible (including those reflected in the Balance Shet, together with al
asets and real properties acquired thereby since the Statement Date). The foregoing asets and
real properties colectively represent al material asets and real properties necesary or
desirable for the conduct of the busines of each Group Company as presently conducted and
as proposed to be conducted. Al machinery, vehicles, equipment and other tangible personal
property owned or leased by a Group Company are (a) in god condition and repair and (b) not
obsolete or in ned in of renewal or replacement, except for renewal or replacement in the
ordinary course of busines.
16. Intelectual Property Rights.
(a) Company IP. Each Group Company owns or otherwise has suficient
rights (including but not limited to the rights of development, maintenance, licensing and sale)
to al Intelectual Property necesary or desirable for conducting its busines as curently
conducted by such Group Company and as contemplated to be conducted without any conflict
with or infringement of the rights of any other Person.
(b) Licenses. The Seler and the Company have disclosed to the Buyer al
proper licenses necesary for the busineses of the Group Companies. The Group Companies
have paid al license and royalty fes required to be paid under these licenses, if aplicable.
17. Labour and Employment Maters. Each Group Company has complied with
al aplicable Laws related to labor or employment in al material respects. There is no pending
or threatened Action relating to any violation or aleged violation of any aplicable Laws by
any Group Company related to labor or employment.
18. Busines.
(a) Operation and Maintenance Contracts. Jiangsu Anyi has signed and
sustained operation and maintenance contracts (the “Operation and Maintenance Contracts”)
with the owners of six wind farms, pursuant to which Jiangsu Anyi shal provide operaion
maintenance services to each of them for an operation service period of 20 years (the
“Busines”). A brief sumary of the Operation and Maintenance Contracts are set forth in
Schedule I to this Agrement.
(b) Customers and supliers. There is no actual or, to the best knowledge
of the Buyer and the Group Companies, threatened termination, cancelation or limitation of,
or any adverse modification or change in, the busines relationship of Group Company with
any customer or any group of customers whose orders and/or authorization are individualy or
in the agregate material to the Busines, or with any material suplier.
(c) Material Adverse Efect. To the best knowledge of the Buyer and the
Group Companies, there exists no present condition or state of facts or circumstances that
would cause Material Adverse Efect on the Busines, or prevent any Group Company from
conducting its Busines after the consumation of the transactions contemplated by this
Agrement, in the same maner in which such Busines has heretofore ben conducted.
19. Data Protection. Each Group Company complies and has at al times complied
with the Data Protection Laws, and there have ben no instances of acidental or unlawful
destruction, los, alteration, unauthorized disclosure of, or aces to, personal data transmited,
stored or otherwise procesed by or on behalf of the Group Company. The Seler is not aware
of any fact or mater which may give rise to such an ocurence.
20. Insurance. Al insurable asets of the Group are, and have at al material times
ben, insured in amounts equal to their ful replacement or reinstatement value against al risks
normaly insured against by persons carying on the same clases of busines as the Group and
the Group is, and has at al material times ben adequately covered against acident, damage,
injury, third party los, los of profits and any other risk normaly insured against by persons
carying on the same clases of busines as the Group.
21. Other busines maters. During the 24 months ending on the date of this
Agrement and ending on Closing, there has ben no substantial change in the basis or terms
on which any key customer, material suplier or other busines partner is prepared to do
busines with the Company (apart from normal price changes), no key customer or material
suplier or other busines partner has ceased or substantialy reduced its busines with the
Company, no key employe ceasing or proposing to cease to work for any Group Company,
and so far as the Seler is aware no indication has ben received by the Company or the Seler
that there wil or may be any such change, cesation or reduction.
22. Acuracy of information provided. Al information provided to the Buyer
and/or any of its profesional advisers for the purposes of their respective reports, opinions or
leters, which was then available or has subsequently become available to the Seler, has ben
suplied to them by the Seler and was and remains true and acurate and not misleading in al
material respects. No material information in conection with or relevant to the Group
Companies was witheld by Seler from any profesional advisors of the Buyer including but
not limited to auditors and profesional valuers, and the Seler does not disagre with any aspect
of the reports, opinions or leters from the auditors, the valuer and the opinions atributed to the
Seler or the Group in such reports or leters are honestly held by the Group and are based fairly
upon facts within their best knowledge after due and careful consideration.
23. Efects of the Agrement. The execution of this Agrement and any other
Transaction Documents and the observance and performance of its provisions wil not and is
not likely to result in a breach of any Law or any Contract to or by which the Company is a
party or bound, or entitle any person to terminate or avoid any Contract to which the Company
is a party, or have any Material Adverse Efect on any such Contract, or so far as the Seler is
aware adversely afect the Company’s relationships with customers, supliers or other busines
partners, or employes.
| No | Project Name | Location | Service Period | Quantity of the Wind Turbines | Capacity |
|---|---|---|---|---|---|
| 1. | Jinhu Ansheng Project (金湖安 晟项目) | Jinhu County, Huaian City, Jiangsu Province | 22 August 2023 to 21 August 2043 | 39 | 97.5MW |
| 2. | Jinhu Anfeng Project (金湖安 丰项目) | Jinhu County, Huaian City, Jiangsu Province | 22 August 2023 to 21 August 2043 | 39 | 97.5MW |
| 3. | Huaian Runfeng Project (淮安润 风项目) | Jinhu County, Huaian City, Jiangsu Province | 22 August 2023 to 21 August 2043 | 20 | 50MW |
| 4. | Baoying Luduo Project (宝应鲁 垛项目) | Baoying County, Yangzhou City, Jiangsu Province | 22 August 2023 to 21 August 2043 | 37 | 92.5MW |
| 5. | Baoying Guoyuan Sifeng Project (宝应国 源巳丰项目) | Baoying County, Yangzhou City, Jiangsu Province | 15 July 2023 to 14 July 2024 | 30 | 66MW |
| 6. | Baoying Guoyuan Sifeng Project (宝应国 源巳丰项目) | Baoying County, Yangzhou City, Jiangsu Province | 15 July 2024 to 14 July 2043 | 30 | 66MW |
| 7. | Bozhou Wantong Project (亳州万 通项目) | Bozhou City, Anhui Province | 15 May 2023 to 14 May 2024 | 20 | 100MW |
| 8. | Bozhou Wantong Project (亳州万 通项目) | Bozhou City, Anhui Province | 15 May 2024 to 14 May 2043 | 20 | 100MW |
SCHEDULE I
SUMARY OF OPERATION AND MAINTENANCE CONTRACTS