GENERAL FRAMEWORK AGREEMENT FOR COOPERATION CHINA NEW ENERGY INVESTMENT CO., LTD.6 BEIJING FENGYIN XIANGHE SCIENTIFIC TECHNOLOGY CO., LTD. September 14 2010
FOR
COOPERATION
CHINA
NEW ENERGY INVESTMENT CO., LTD.6
BEIJING
FENGYIN XIANGHE SCIENTIFIC TECHNOLOGY CO., LTD.
September
14 2010
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CHINA NEW ENERGY INVESTMENT CO., LTD.
(“Party A”) and BEIJING FENGYIN XIANGHE SCIENTIFIC TECHNOLOGY CO., LTD. (“Party
B”) have entered into this agreement on the principle of mutual
understanding and cooperation. Through friendly consultation, the two parties
have reached the following agreement with regard to (collectively the
“Acquisitions”):
(i) the
acquisition by Party A of 70% of the equity of Zhuolu Dadi Gas Co. Ltd. (“Target
1”) from Party B (the “Initial Target 1 Purchase”) pursuant to the agreement
dated September __, 2010 (the “Target 1 ETA”);
(ii) the
acquisition by Party A of 70% of the equity of Beijing Century Dadi Gas
Engineering Co., Ltd. (“Target 2”) from Party B (the “Initial Target 2
Purchase”) pursuant to the agreement dated September __, 2010 (the “Target 2
ETA”);
(iii) an
option for Party A to acquire up to 30% of the equity of Target 1 in connection
with or after the Initial Target 1 Purchase (“Option 1”) pursuant to the
agreement dated September __, 2010 (the “Target 1 Option”); and
(iv) an
option for Party A to acquire up to 30% of the equity of Target 2 in connection
with or after the Initial Target 2 Purchase (“Option 2”) pursuant to the agreement dated
September __, 2010 (the “Target 2 Option”).
Option 1
and Option 2 together are referenced herein as the “Options”. The
Target 1 ETA, Target 2 ETA, Target 1 Option and Target 2 Option, along with each
ancillary document and agreement referenced therein or attached thereto, are
referenced herein, including the Supplementary Agreement for the Escrow。。。。, collectively,
as the “Acquisition Agreements.” The total purchase price for the
Acquisitions shall be RMB 400,000,000.
▇. ▇▇▇ of the Cooperation and Nature of
the Agreement
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A.
The parties hereto agree that this agreement is the guiding and
controlling document for the Acquisitions and, along with the equity
transfer agreements for the Acquisitions, contains all of the relevant
terms and conditions to complete the acquisitions as well as the
conditions precedent which are to be fulfilled by Party B so that the
Options may be exercised.
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II. Term
of Cooperation
A. The
term of the parties’ cooperation hereunder shall be from the date hereof until
the date that each of the Acquisitions is either completed or terminated under
the terms of the relevant Acquisition Agreement.
III.
Responsibilities and Obligations
A. The
parties agree that they will use their reasonable efforts to complete the
Acquisitions on the terms set forth in the Acquisition Agreements.
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B.
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Options. Party
B agrees that beginning on the date of execution of this agreement, it
will take all steps necessary to fulfill the following conditions
precedent so that the Options may be exercised by Party A on or before May
31, 2011:
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(i) Party
B shall use its best efforts to obtain 30% of the equity of each of Target 1 and
target 2 that remained after the Initial target 1 Purchase and Initial target 2
Purchase (the “Remaining Equity”);
(ii) Party
B shall have obtained all necessary government approvals and registrations
necessary for Party A to exercise Option 1 and Option 2, including, but not
limited to, approval of the transfers of equity by the relevant local branch of
the Ministry of Commerce and registration and/or qualification with
the relevant Administration of Industry and Commerce;
(iii) There
shall be no liens or other encumbrances on the Remaining Equity, nor shall they
be restricted by any laws or agreements other than those set forth in the
Acquisition Agreements;
(iv) The
transfer of the Remaining Equity shall not conflict with any outstanding
agreement, arrangement or understanding.
(v) Any
existing breach by Party B under the terms of the Target 1 or Target 2 ETA shall
have been remedied by Party B; and
(vi) Party
B shall have provided its assistance to party A in the completion of its audit
of Target 1 and Target 2 and their respective subsidiaries .
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C.
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Party
A agrees that the Options shall only be exercisable in the event
that:
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(i)
The full purchase price subject to any penalties, adjustments（if any）and the 5%
retention allowed under the Target 1 ETA has been paid by Party A;
and
(ii) The
full purchase price subject to any penalties, adjustments（if any）and the 5%
retention allowed under the Target 2 ETA has been paid by Party A.
IV. Effectiveness
of the agreement and Default
This
agreement is made in two identical copies, and each has equal legal effect. This
agreement shall become effective on the date when the authorized representatives
from both parties execute it and put the official seals on it.
It shall
be deemed a breach of this agreement if (a “Breach”):
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A.
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Either
party has breached its obligations under this agreement and has not cured
such breach within 10 days of receipt of notice of such breach from the
other party;
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B. A
party enters bankruptcy, become insolvent or enters into liquidation, and such
condition is not remedied within thirty days;
C. Party
B shall fail to complete the delivery of the equity required under the Target 1
Acquisition Agreement or the Target 2 Acquisition Agreement; or
D.
Party B shall be unable to deliver at least _30% of the equity
required to be delivered under either of the Options.
In the
event of a Breach, the non-breaching party shall have the right to exercise any
and all rights and remedial measures available at law. In the case of
a Breach under Paragraph C of this Section, Party B shall, at Party A’s option,
return all monies paid to it under the Acquisition Agreements and Party A shall
return to Party B all equity delivered to it under the Acquisition
Agreements. In the case of a Breach under Paragraph D of this
Section, Party A may, at its option, proceed with the purchase of the amount of
equity Party B is able to deliver, but the purchase price shall be reduced pro
rata.
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V.
Confidentiality
Each
party hereby agrees that the terms of this agreement, as well as its existence,
shall be kept strictly confidential and it shall not be disclosed to any party,
other than the parties’ employees, counsel and accountants who need to see this
agreement in order to effect the Acquisitions.
VI. MISCELLANEOUS
A. Assignment. Each
party agrees that this agreement shall not be assignable without the consent of
the other party.
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B.
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Force
Majeure. Any delay in the performance of any
of the duties or obligations of either party shall not be considered a
breach of this Agreement, and the time required for performance shall be
extended for a period equal to the period of such delay, if such delay has
been caused by or is the result of acts of God; acts of public enemy;
insurrections; riots; injunctions; embargoes; labor disputes, including
strikes, lockouts, job actions, or boycotts; fires; explosions;
earthquakes; floods; shortages of energy; governmental prohibition or
restriction; or other unforeseeable causes beyond the reasonable control
and without the fault or negligence of the party so
affected. The party so affected shall immediately notify the
other party of such inability and of the period for which such inability
is expected to continue. The party giving such notice of a
force majeure event, shall be excused from the performance, or the
punctual performance, of such obligations, as the case may be, from the
date of such notice, up to a maximum of nine (9) calendar months, after
which time the party who is not able to perform, may terminate this
Agreement. To the extent possible, each party shall use
reasonable efforts to minimize the duration of any force
majeure.
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C.
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Notices. Any
and all notices shall be delivered in writing, including by facsimile,
letter, courier service delivered letter, and notices shall be deemed to
have been delivered at the 7th day after the written notice was sent. The
notifying date of unwritten notice (telephone or email, etc) shall be the
date of written confirmation of the
receiver.
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D. Governing
Law. The formation, validity, interpretation
and/or performance of this agreement shall be governed by PRC law.
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E.
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Disputes. Any
disputes arising from or in connection with this agreement shall be
settled through friendly negotiation among the parties. If the dispute
cannot be resolved by negotiation, then any party may submit the dispute
to China International Economic and Trade Arbitration Committee located in
Beijing for arbitration according to and regulations in effect at the time
of applying for arbitration. The arbitration award shall be final and
binding on all parties.
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F.
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Severability. Any
provision of the agreement shall be deemed as severable. If any provision
of the agreement is invalid, it shall not affect the validity of the rest
of the provisions of this
agreement.
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G.
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Non-Waiver. Either
Party's failure to insist the other Party on the performance of any
provision of the agreement at any time shall not be deemed to waive such
provision or waive the right to request the other Party on execution of
such provision in future.
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H.
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Transcript. The
formal text of the agreement shall be written in CHINESE. Any provision of
such Agreement shall be interpreted under the usual meaning of the words
in the Chinese version.
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I.
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Titles and
Subtitles. All tile and subtitles in this
agreement are in the convenience of the reference only and shall not limit
or affect any provision provided in the
agreement.
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J.
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Entire
Agreement. This agreement, along with the
Acquisition Agreements，Exclusive
Option Agreement and Supplementary Agreement for the Escrow Terms and
Conditions for the First Installment, as well as all ancillary agreements,
includes all agreements and memorandums related to the subject of this
agreement and supersedes any and all previous written or oral agreements
and/or memorandums concluded by any consultation relating to the subject
of this agreement. Unless this agreement is otherwise provided expressly,
any other condition, definition, guarantee or statement related to the
subject of this agreement shall not be binding on the
Parties.
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K.
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Amendments. Any
correction、amendment、replacing or
modification of this Agreement shall be made in writing and shall be
ascertained that it is relevant to this agreement and shall be signed by
the representatives or designated person(s) of the Parties of the
agreement.
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L.
Counterparts. This
agreement may be executed in counterparts.
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(This
page is blank below)
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The two
parties acknowledge that this agreement is formulated out of their own wishes as
a basis to guarantee their economic benefits. Both parties have confirmed that
they have already read, understood and agreed the terms and conditions in the
agreement.
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BEIJING FENGYIN XIANGHE
SCIENTIFIC TECHNOLOGY CO., LTD.
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CHINA NEW ENERGY INVESTMENT CO.,
LTD.
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Address:
Contact
Person：
Tel:
Fax:
E-mail:
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Address:
Contact
Person: ▇.▇. ▇▇▇▇▇, CEO
Tel:
Fax:
E-mail:
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Signed
by：
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Signed
by：
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Company
seal:
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Company
seal:
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Date:
September
__. 2010
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Date:
September
__,
2010
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