Attached files
Exhibit 10.1
|
Dated 30th December 2009
GREAT EAST BOTTLES AND DRINKS
(BVI) INC.
(
“GEBD”)
and
GREAT
EAST PACKAGING HOLDINGS LIMITED
(
“GEPH”)
___________________________________________
RESTRUCTURING
AGREEMENT
___________________________________________
|
CONTENTS
|
Clause
|
Heading
|
Page
|
|
1
|
DEFINITIONS AND
INTERPRETATION
|
4
|
|
2
|
RESTRUCTURING
|
6
|
|
3
|
COMPLETION
|
6
|
|
4
|
MISCELLANEOUS
|
6
|
|
5
|
NOTICES
|
7
|
|
6
|
COSTS AND EXPENSES
|
7
|
|
7
|
GOVERNING LAW AND
JURISDICTION
|
7
|
THIS RESTRUCTURING AGREEMENT is dated 30th December 2009
BETWEEN:
|
1.
|
GREAT EAST BOTTLES AND DRINKS
(BVI) INC., a company incorporated in the British Virgin Islands
whose registered office is situated at P.O. Box 3140, Road Town, Tortola,
British Virgin Islands (the “GEBD”);
and
|
|
2.
|
GREAT EAST PACKAGING HOLDINGS
LIMITED, a company incorporated under the laws of the British
Virgin Islands whose registered office is situated at P.O. Box 3140, Road
Town, Tortola, British Virgin Islands (the “GEPH”).
|
WHEREAS:
|
(A)
|
Great
East (Overseas) Packaging Limited is a company incorporated in Hong Kong
and as at the date hereof has an authorised capital of HK$1,000,000
divided into 1,000,000 shares of HK$1 each (“GEOP Shares”), of which
10,000 GEOP Shares have been issued and are fully paid up and
are held by Hangzhou Great East Packaging Company Limited, an indirectly
owned subsidiary of GEBD.
|
|
(B)
|
Greatgrand
Global Limited is a company incorporated in the British Virgin Islands and
as at the date hereof has an authorised capital of USD50,000 divided into
50,000 shares of USD1 each (“GGL Share”), of which 1
GGL Share is held by GEPH.
|
|
(C)
|
Upjoy
Holdings Limited is a company incorporated in the British Virgin Islands
and as at the date hereof has an authorised capital of USD50,000 divided
into 50,000 shares of USD1 each (“UHL Share”), of which 1
UHL Share is held by GEPH.
|
|
(D)
|
United
Joy International Limited is a company incorporated in the British Virgin
Islands and as at the date hereof has an authorised capital of USD50,000
divided into 50,000 shares of USD1 each (“UJI Share”), of which 1
UJI Share is held by GEPH.
|
|
(E)
|
Best
Key Investment Limited is a company incorporated in Hong Kong and as at
the date hereof has an authorised capital of HK$10,000 divided into 10,000
shares of HK$1 each (“BKI
Share”), of which 1 BKI Shares is held by
GEBD.
|
|
(F)
|
Great
East Packaging International Limited is a company incorporated in the
British Virgin Islands and as at the date hereof has an authorized capital
of USD10,000,000, divided into 10,000,000 shares with no par
value (“GEPI shares”), of which 6,425,846 GEPI shares were held
by GEBD.
|
|
(G)
|
The
parties hereto are desirous of undergoing a restructuring exercise in
accordance with Clause 2 below whereby, inter alia, GEOP (as defined
hereinbelow) will subscribe shares in each of GGL, UHL and UJI and GEBD
will sell all its shares indirectly in BKI to Top Sharp Investments
Limited and procure GEPI to issue certain shares to
GEPH.
|
IT IS HEREBY AGREED
THAT:
1. DEFINITIONS AND
INTERPRETATION
|
1.1
|
In
this Agreement, where the context so admits the following words and
expressions shall have the following
meanings:
|
“Business Day” means a
day (other than a Saturday or Sunday) on which banks are open for business in
Hong Kong;
“BKI” means Best Key Investment
Limited, a company incorporated in Hong Kong with registered office situated at
203 Hankow Centre, 5-15 Hankow Road, Tsimshatsui, Kowloon, Hong
Kong;
“Completion” means the
completion of the restructuring in accordance with Clause 3;
“Completion Date” means
31st
December 2009 or such other date as GEBD and the GEPH may agree in
writing;
“GEOP” means Great East
(Overseas) Packaging Limited, a company incorporated in the Hong Kong whose
registered office is situated at 203 Hankow Centre, 5-15 Hankow Road,
Tsimshatsui, Kowloon, Hong Kong;
“GEPI” means Great East
Packaging International Limited, a company incorporated in the British Virgin
Islands whose registered office is situate at P.O. Box 3140, Road Town, Tortola,
British Virgin Islands;
“GGL” means Greatgrand Global
Limited, a company incorporated in the BVI whose registered office is situate at
P.O. Box 957, Offshore Incorporations Centre, Road Town, Tortola, British Virgin
Islands;
“GGL Subscription Agreement”
means the subscription agreement to be entered into between GGL and GEPI in the
form set out in Appendix 1;
“HK$” means Hong Kong dollars,
the lawful currency for the time being of Hong Kong;
“Hong Kong” means the
Hong Kong Special Administrative Region of the PRC;
“Option Agreement” means the
option agreement to be entered into between GEPI and GEPH in the form set out in
Appendix 4;
“Party” means a party to this
Agreement;
“Person” means an individual,
partnership, company, body corporate, joint stock company, trust, unincorporated
association or body of persons (including a partnership or consortium), joint
venture or other entity, or a government or any political subdivision or agency
thereof;
“PRC” means the People’s
Republic of China and for the purpose of this Agreement excluding Hong
Kong;
“SP Agreement” means the
sale and purchase agreement to be entered into between GEBD as the vendor and
Top Sharp as the purchaser in respect of entire issued share capital of BKI in
the form set out in Appendix 5;
“Subscription Agreements”
means GGL Subscription Agreement, UHL Subscription Agreement and UJI
Subscription Agreement;
“Subsidiaries” means GGL, UHL
and UJI;
“Top Sharp” means Top
Sharp Investments Limited, a company incorporated in the BVI whose
registered office is situate at P.O. Box 957, Offshore Incorporations Centre,
Road Town, Tortola, British Virgin Islands;
“UHL” means Upjoy Holdings
Limited, a company incorporated in the BVI whose registered office is situate at
P.O. Box 957, Offshore Incorporations Centre, Road Town, Tortola, British Virgin
Islands;
“UHL Subscription Agreement”
means the subscription agreement to be entered into between UHL and GEPI in the
form set out in Appendix 2;
“UJI” means United Joy
International Limited, a company incorporated in the BVI whose registered office
is situate at P.O. Box 957, Offshore Incorporations Centre, Road Town, Tortola,
British Virgin Islands;
“UJI Subscription Agreement”
means the subscription agreement to be entered into between UJI and GEPI in the
form set out in Appendix 3.
|
1.2
|
Any
references, express or implied, to statutes or statutory provisions shall
be construed as references to those statutes or provisions as respectively
amended or re-enacted or as their application is modified by other
provisions (whether before or after the date hereof) from time to time and
shall include any statutes or provisions of which they are re-enactments
(whether with or without modification) and any orders, regulations,
instruments or other subordinate legislation under the relevant statute or
statutory provision. References to sections of consolidating
legislation shall, wherever necessary or appropriate in the context, be
construed as including references to the sections of the previous
legislation from which the consolidating legislation has been
prepared.
|
|
1.3
|
References
herein to Clauses and Schedules are to clauses in and schedules to this
Agreement (unless the context requires otherwise). The
Schedules to this Agreement shall be deemed to form part of this
Agreement.
|
|
1.4
|
The
headings are inserted for convenience only and shall not affect the
construction of this Agreement.
|
|
1.5
|
Unless
the context requires otherwise, words importing the singular include the
plural and vice versa and words importing a gender include every
gender.
|
|
2.
|
RESTRUCTURING
|
|
2.1
|
In
consideration of GEPH to procure the Subsidiaries to enter into the
Subscription Agreements with GEOP, GEBD agrees
to:
|
|
|
(1)
|
enter
into a SP Agreement with Top Sharp;
and
|
|
|
(2)
|
procure
GEPI to enter into the Option Agreement with
GEPH.
|
3.
COMPLETION
Completion
shall take place on the Completion Date or such other place or time or date as
to be agreed by the GEPH and the GEBD at which the following transactions shall
take place:
|
|
(a)
|
GEPH
shall deliver to GEBD a copy of the executed Subscription
Agreements;
|
|
|
(b)
|
GEBD
shall deliver to GEPH a copy of the executed SP Agreement and Option
Agreement.
|
4.
MISCELLANEOUS
|
4.1
|
Whole
Agreement
|
This
Agreement contains the whole agreement between the Parties relating to the
transactions contemplated by this Agreement and supersedes all previous
agreements between the Parties relating to these transactions (for the avoidance
of doubt, including, without limitation, the Proposal).
|
4.2
|
Severability
|
|
|
If
any provision of this Agreement is or becomes illegal, invalid or
unenforceable in any jurisdiction, that shall not
affect:
|
|
|
(a)
|
the
validity or enforceability in that jurisdiction of any other provision of
this Agreement; or
|
|
|
(b)
|
the
validity or enforceability in other jurisdictions of that or any other
provision of this Agreement.
|
|
4.3
|
Assignment
|
|
|
The
Parties shall not be entitled to assign or transfer any of their rights
(which are not assignable) or obligations under this
Agreement.
|
|
4.4
|
Time
|
|
|
Time
shall be of the essence in this Agreement both as regards dates and
periods specifically mentioned and as to any dates and period which may,
by agreement in writing between the Parties hereto, be substituted
thereof.
|
5. NOTICES
|
5.1
|
All
notices or other communications under or in connection with this Agreement
shall be given in writing or by facsimile. Any such notice
shall be deemed to be given as
follows:
|
|
|
(a)
|
if
by letter, when delivered personally or on actual receipt;
or
|
|
|
(b)
|
if
by facsimile, when confirmed by an activity report confirming the
facsimile number to which such notice was sent, the number of pages
transmitted and that such transmission was successfully
completed,
|
however,
a notice given in accordance with the above but received on a non-Business Day
or after business hours in the place of receipt shall only be deemed to be given
on the next working day in that place.
|
5.2
|
The
address and facsimile number of GEBD and the GEPH
are:
|
|
|
(a)
|
GEBD
|
|
|
Address:
|
OMC
Chambers, P.O. Box 3152, Road Town, Tortola,
B.V.I.
|
|
|
Facsimile:
|
[*]
|
Attention: [*]
|
|
(b)
|
GEPH
|
|
|
Address:
|
Offshore
Incorporations Ltd.- P.O. Box 957, Todman Building, Main Street, P.O. Box
3140, Road Town, Tortola, B.V.I.
|
|
|
Facsimile:
|
[*]
|
Attention:
[*]
or such
other address or facsimile number as the relevant Party may notify to the other
Parties by not less than five (5) Business Days’ notice.
6.
COSTS AND
EXPENSES
|
|
Each
party shall bear its own costs and expenses (if any) incurred in
connection with the preparation, negotiation, settlement and performance
of this Agreement.
|
7
GOVERNING LAW AND
JURISDICTION
|
7.1
|
This
Agreement is governed by and shall be construed in accordance with the
laws of Hong Kong.
|
|
7.2
|
The
Parties irrevocably and unconditionally submit to the non-exclusive
jurisdiction of the Hong Kong Court in connection
herewith.
|
IN WITNESS WHEREOF this
Agreement has been executed by the above-named Parties on the day and year first
above written.
|
|
APPENDIX
1
|
|
|
GGL
Subscription Agreement
|
APPENDIX
2
UHL
Subscription Agreement
APPENDIX
3
UJI
Subscription Agreement
APPENDIX
4
Option
Agreement
APPENDIX
5
SP
Agreement
SIGNED by
[*] )
for and
on behalf
of )
GREAT EAST BOTTLES AND
DRINKS )
(BVI)
INC.
)
in the
presence
of: )
)
SIGNED by
[*] )
for and
on behalf
of )
GREAT EAST PACKAGING
HOLDINGS )
LIMITED
)
in the
presence
of: )