UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
8-K/A
(Amendment
No. 1)
CURRENT
REPORT
Pursuant
to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of
Report (Date of earliest event reported): May 27, 2009
SMARTHEAT
INC.
(Exact
Name of Registrant as Specified in Charter)
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Nevada
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000-53052
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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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A-1,
10, Street 7
Shenyang
Economic and Technological Development Zone
Shenyang,
China
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110027
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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 (24)
2519-7699
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(Former
name or former address, if changed since last
report)
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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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¨
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Written
communications pursuant to Rule 425 under the Securities Act (17 CFR
230.425)
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¨
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Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 DFR
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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¨
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Pre-commencement
communications pursuant to Rule 13e-4 (c) under the Exchange Act (17 CFR
240.13e-4(c))
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On May
29, 2009 the Registrant filed a Form 8-K announcing that its subsidiary Shenyang
Taiyu Machinery and Electrical Equipment Co., Ltd
(“Taiyu”), entered into
an Asset Acquisition Agreement (the “Agreement”) with Siping Beifang Heat
Exchanger, Manufacture Co.,
Ltd (“Siping”), to
purchase all of the tangible and intangible assets of Siping for a purchase
price of 300,000 restricted shares of the Company’s common stock, par value
$.001 per share (the "Common Stock") and 54,000,000 RMB,
or USD 7,906,296 (Exchange rate: US$1= RMB6.83), subject to inventory
verification and clearance of transfer restrictions. Taiyu and Siping have
amended the Agreement in accordance with the terms therein in order to provide
that Taiyu shall purchase only the plant and equipment of Siping and no other
assets and have reduced the purchase price by 300,000 shares of Common Stock or
approximately $2,200,000 based on the closing price of the Registrant’s common
stock on June 15, 2009.
Item
1.01 Entry into a Material Definitive Agreement.
On June
16, 2009 Shenyang Taiyu Machinery and Electrical Equipment Co., Ltd
(“Taiyu”), a wholly
owned subsidiary of SmartHeat Inc. (the “Company”), entered into an Amended and
Restated Asset Purchase Agreement (the “Amended Agreement”) with Siping Beifang Heat
Exchanger, Manufacture Co.,
Ltd , a company
organized under the laws, of the Peoples Republic of China (“Siping”), to
purchase certain assets consisting of the plant and equipment of Siping for a
purchase price of 54,000,000 RMB, or USD 7,906,296 (Exchange
rate: US$1= RMB6.83), subject to inventory verification and clearance of
transfer restrictions, if any, which is payable according, to the following
schedule:
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Payment
In RMB
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Payment
In USD
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Payment
Date
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RMB
3,000,000
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$
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439,239
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May
27, 2009
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RMB
10,250,000
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$
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1,500,732
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June
30, 2009
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RMB 13,000,000
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$
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1,903,367
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September
30, 2009
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RMB
12,300,000
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$
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1,800,878
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March
1, 2010
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RMB
8,200,000
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$
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1,200,586
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September
30, 2010
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(Exchange
rate: US$1= RMB6.83)
Taiyu
will not assume any of the debt of Siping, and the Amended Agreement provides for
Siping’s assistance in the transfer of its assets to Taiyu. The acquisition is
expected to be funded with SmartHeat’s existing bank credit facilities as well
as internal cash flow.
The
transaction closed on
June
16
, 2009.
Item
2.01 Completion of Acquisition or Disposition of Assets.
The
information set forth under Item 1.01 is incorporated herein by
reference.
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(a)
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Financial
Statement of Businesses Acquired.
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N.A.
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(b)
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Pro
Forma Financial Information.
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N.A.
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Exhibit
10.15
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English
Translation of the Amended and Restated Asset Purchase Agreement, dated
June 16, 2009, by and between Taiyu Machinery and Electrical Equipment
Co., Ltd
and
Siping Beifang the Heat Exchanger Manufacture Co.,
Ltd.
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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.
Dated: June
16, 2009
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By:
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/s/
Jun Wang
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Jun
Wang
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Title:
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Chairman
& Chief Executive Officer
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EXHIBIT
10.15
Amended
and Restated Asset Purchase Agreement between
Shenyang
Taiyu Machinery and Electrical Equipment Co., Ltd
and
Siping Beifang Heat Exchanger Manufacture Co., Ltd
June
16, 2009
Shenyang
This
amended and restated Asset Purchase Agreement (the “Agreement”) amends and
restates that certain Asset Acquisition Agreement between Siping Beifang Heat
Exchanger Manufacture Co., Ltd and Shenyang Taiyu-Machinery and Electrical
Equipment Co., Ltd dated May 27, 2009. Siping Beifang Heat Exchanger Manufacture
Co., Ltd has decided to sell certain plant and equipment to Shenyang
Taiyu-Machinery and Electrical Equipment Co., Ltd after friendly consultation by
both parties.
The two
parties have reached this agreement on the acquisition of the Subject Assets (as
defined below) and both parties agree to implement the assets sale under the
agreement according to the rights and obligations as stipulated in the
agreement.
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I.
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Parties
to the agreement
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Party A:
Siping Beifang Heat Exchanger Manufacture Co., Ltd
Legal
Representative: Li Shufeng
Party B:
Shenyang Taiyu-Machinery and Electrical Equipment Co., Ltd
Legal
Representative: Wang Jun
Both
parties agree that Party A undertakes and ensures to transfer to Party B certain
plant and equipment specified on the asset list (except for credit and debt)
determined jointly by both parties as of the date of signing the agreement when
the assets under the agreement satisfying the legal transfer conditions
according to the terms and conditions of this agreement (the “Subject Assets”).
Party A covenants and agrees that it is the sole owner of all of the Subject
Assets and can transfer such assets to Party B free and clear of any lien,
mortgage or other encumbrance. The Subject Assets shall include:
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1.
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The
land, building and land attachments to which Party A has the property
right or has not obtained the property right thereof but already acquired
and possessed legally (including those Party A acquired by contract) and
other associated properties that Party A has legally possessed but has not
acquired or used;
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2.
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All
production equipment, auxiliary equipment and spare
parts;
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3.
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Some
of the raw materials
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The
Subject Assets include but are not limited to those listed above and shall be
subject to the final check jointly by both parties against the asset list
provided by Party A (the “Asset List”). With regard to the asset listed in the
Asset List, besides the responsibility of ensuring the assets under the
Agreement do not have any defects, Party A shall be responsible
for:
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a.
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providing
Party B the original of ownership certificates of the land and buildings
or the copies acceptable for Party B, the formalities for construction,
approval and filing and other relevant documents if the ownership
certificates are not available, complete technical data related to land
and building projects including drawings for future maintenance and repair
after taking over;
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b.
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withdrawing
the mortgage or other encumbrances if the Subject Assets have mortgage or
other encumbrances so that the Subject Assets are delivered free and clear
of any liens, mortgages or any
encumbrances;
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c.
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ensuring
that the board of shareholders and board of directors of the Party A have
made unanimous resolution on the sale of the Subject
Assets;
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d.
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ensuring
that the creditors of Party A unanimously agree with the sale, and
undertaking the full liability and compensating Party B for all the losses
including all the due benefits if the agreement can
’
t be
fulfilled due to the object raised by Party A
’
s
creditors.
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Party A
shall ensure the truth of the above terms and documents and that the assets
carried on the Asset List shall not have material changes after signing the
agreement.
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III.
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Continual
assistance by Party A after the acquisition of the
assets
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To ensure
the operation by the management of Party B and the successful takeover of Party
A
’
s Subject
Assets, Party A undertakes that its board of shareholders and board of directors
will give Party B the assistance regarding the orderly transfer of Subject
Assets by Siping Beifang Heat Exchanger Manufacture Co., Ltd including, without
limitation, Party B
’
s right to decide
on the use, transfer or disposal of the Subject Assets of Party A (excluding
original credit and debt, all credits and debts of the predecessor company shall
be disposed and cleared off by Party A prior to the signing of the
agreement);
To ensure
the smooth implementation of the above work, Party A shall undertake the
following responsibilities:
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1.
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Divestiture,
disposal and liquidation of all credits and debts prior to the signing of
the agreement within a half year after the commencement of the acquisition
of Subject Assets. Any disputes arising from the credit and debt during
the acquisition shall be dealt with by Party A and if the acquisition is
hindered due to the disputes Party A shall be held
responsible;
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2.
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Party
A shall be responsible for all affairs that need the legal representative
to solve in person;
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3.
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Party
A shall be responsible for providing Party B all information, materials
and reports needed for operation and ensure the truth, completeness and
timeliness thereof;
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4.
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Party
A shall be responsible for handling the formalities for the transfer of
all Subject Assets ;
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After
friendly consultation by both parties, as for the above Subject
Assets Party B shall pay RMB 54 million yuan (RMB fifty-four million
yuan) to Party A in cash. The specific description of the
consideration for the acquisition is as follows:
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1.
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The
acquisition price excludes all the credits and debts of Party A prior to
the signing of the agreement and Party A shall be responsible for the
original credits and debts;
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2.
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Before
Party B entering Party A for management the business in trust, the raw
material costs and relevant sales expense that have been put in for the
contracts that have not been completed shall be disposed after the
confirmation by both parties. For the contracts that have been completed,
Party A shall be responsible for the settlement of the payment for goods
and tax refunds and the specific time and method shall be separately
discussed by both parties;
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3.
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Party
B shall bear all the taxes and fees caused by the
acquisition;
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4.
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In
case any part of the asset listed in the Asset list can
’
t be
transferred to Party B according to the agreement due to Party A
’
s reason
(except those that are transferred according to the writing agreement
reached by both parties in terms of specific transfer method and time), an
agreement shall be reached additionally by both parties through
negotiation to reduce the quantity of Subject Assets to be acquired and
the payment correspondingly.
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V.
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Implementation
of acquisition
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This
agreement is implemented after the boards of directors of Party A and Party B
approve the proposal on assets acquisition. In the course of the implementation,
it should be guaranteed that the two parties hereto enjoy and bear equivalent
interests and risks. Detailed implementation steps are as follows (the
resolution of the boards of directors of Party A and Party B on approving the
assets acquisition shall be deemed as appendices to this
agreement):
Step I
:
Party B pays Party A the
earnest of RMB 3,000,000.00 yuan (RMB three million yuan) to the designated
account of Party A, and Party A shall, after receiving the earnest, carry out
overall inventory check over the Subject Assets jointly with Party
B.
If the
following cases occur in the implementation of Step I, Party A shall return the
earnest in full amount and the rest paid sum and interest incurred to Party
B, and promise that Party B shall have the right to mortgage or pledge the
existing land, housing and relevant equipment listed in the Asset list, as a
guarantee for refunding the above-mentioned money by Party A.
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1.
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Termination
of this agreement caused by the fact that it is found that the Subject
Assets have material discrepancy or have changed in the course of assets
inventory check;
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2.
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Termination
of the agreement proposed by Party A unilaterally for
non-payment.
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Step II:
If there is no discrepancy found in the Subject Assets inventory check, Party B
shall within 7 days pay Party A RMB 7,250,000.00 (RMB seven million two hundred
and fifty thousand Yuan) to the designated account of Party A as the first sum
of assets acquisition payment. After Party A receives this sum of payment, Party
B shall enter the business and receive all the Subject Assets. And Party A shall
assist Party B in going through the transfer procedures of the abovementioned
Subject Assets, including house property, land, trademark right, etc., and the
expenses arising therefrom shall be borne by Party B.
In the
implementation of step II, if the following cases occur, Party A shall return
all the earnest and the first sum of assets acquisition payment to Party
B:
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1.
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The
performance of the agreement becoming impossible resulted by the main
Subject Assets being unable to be transferred due to Party A’s
reason;
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2.
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Termination
of the agreement proposed by Party A unilaterally for
non-payment.
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Step III:
After the transfer procedures of such Subject Assets, the two parties hereto
shall formally carry out handover & takeover. Party A shall assist Party B
in going through all the transfer procedures within the contractual period.
Party B shall pay Party A the second sum of acquisition payment of RMB
10,250,000.00 yuan (RMB ten million two hundred and fifty thousand Yuan) on June
30, 2009.
Step IV:
Party B shall pay Party A RMB 13,000,000.00 yuan (RMB thirteen million yuan) and
RMB 12,300,000.00 yuan (RMB twelve million three hundred thousand Yuan)
respectively on Sept. 30, 2009 and March 1, 2010, as part of the acquisition
payment. Party B shall pay Party A the rest part of payment of RMB 8,200,000.00
yuan (RMB eight million two hundred thousand Yuan) on Sept. 30,
2010.
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1.
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The Agreement
is a conventional agreement of the two parties hereto. If Party B needs to
further conclude assets transfer agreements or sign related documents as
per the information disclosure requirements of listed companies, Party A
shall provide cooperation. But in practical execution, both Parties hereto
shall take the provisions on assets acquisition, payment, etc. of this
agreement as the criterion;
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2.
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After
the handover & takeover of the business between the two parties hereto
is finished, if Party B fails to pay the acquisition payment on time for
its own reason, it shall pay Party A overdue fine equal to 1‰ of the
overdue unpaid amount per day. If Party B’s payment is more than 60 days
overdue, Party A shall have the right to claim the management right back,
and Party B shall compensate Party A for the actual loss of Party
A;
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3.
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After
this agreement comes into force, in case that Party A’s Subject
Assets have undergone transfer during the period of management
by Party B in trust, Party B shall not withdraw from the
acquisition;
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4.
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Party
B shall not be liable or have any obligation for any of business
activities of Party A whether conducted prior to or after the consummation
of any of the transactions contemplated by this
Agreement.
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VII.
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Effect
and rescission of agreement
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This
Agreement is made in quadruplicate with each of the two parties hereto holding
two copies, and shall come into force upon Party A and Party B’s affixing their
seals and their legal or authorized representatives’ signing.
If this
Agreement is terminated by two parties hereto, the follow-up related matters
shall be handled according to the provisions of this agreement. If this
Agreement can’t be implemented because of Force Majeure, it shall be rescinded
and related matters shall be handled as per relevant laws of the
country.
Party A:
Siping Beifang Heat Exchanger Manufacture Co., Ltd
Legal
Representative: /s/ Li Shufeng, President
Date:
June 16, 2009
Party B:
Shenyang Taiyu- Machinery and Electrical Equipment Co., Ltd
Legal
Representative: /s/ Wang Jun, President
Date June
16, 2009
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