JOINT VENTURE PURCHASE AGREEMENT
This
JOINT VENTURE PURCHASE AGREEMENT (this “Agreement”) is made and entered into as
of the 19th day of December 2006 by Jinpan International Limited, a British
Virgin Island corporation (the “Buyer”), and Haikou Jinpan Special Transformer
Works, a People’s Republic of China corporation registered in Haikou, Hainan
Province (the “Seller”).
WHEREAS,
the Seller beneficially owns 15% of the joint venture interest (the “JV
Interests”) and the Buyer owns 85% of the joint venture interest in Hainan
Jinpan Electric Company Limited (the “Company”), formerly known as Hainan Jinpan
Special Transformer Works, a Sino-Foreign Cooperative Joint Venture Company
formed by the Buyer and the Seller, as documented in the Memorandum of
Association of and the Contract for the Establishment of the Company;
and
WHEREAS,
the Company conducts all of the activities of the Seller in the power
distribution equipment and all similar businesses;
WHEREAS,
the Seller does not receive any income from the power distribution equipment
business other than from the Company; and
WHEREAS,
the Seller desires to sell to the Buyer and the Buyer desires to purchase from
the Seller the JV Interests, representing all of the Seller’s interest in the
Company on the terms set forth herein.
NOW
THEREFORE, in consideration of the mutual representations, warranties, covenants
and agreements contained herein, and upon the terms and subject to the
conditions hereinafter set forth, the parties hereby agree as
follows:
ARTICLE
1
Sale
of
Joint Venture Ownership Interest
| 1.1. |
Joint
Venture Ownership Interest to be Sold. The
Seller shall offer to sell, assign, and transfer to the Buyer the JV
Interests, which constitutes all of the Seller’s interests, rights and
benefits in the Company.
|
| 1.2. |
Manner
of Sale.
|
| (a) |
On
the Closing Date (defined in Article 4), the Buyer shall purchase from
the
Seller and Seller shall sell, assign, transfer, and convey to the Buyer
the JV Interests, in exchange for the Purchase Price (defined in Article
3).
|
| (b) |
At
the Closing, the Seller shall deliver to the Buyer documentation
representing the JV Interests transferred to the Buyer, which are required
to be delivered or are otherwise deliverable by the Seller pursuant
hereto.
|
ARTICLE
2
Assumption
of Liabilities
2.1.
Liabilities Assumed by the Buyer. The
Buyer
shall assume only liabilities and obligations under contracts and other
agreements to which the Company is a party or by or to which it or its assets,
properties or rights are bound or subject.
2.2.
Liabilities Not Assumed by Buyer. Anything
in this Agreement to the contrary notwithstanding, the Seller shall be
responsible for all of its liabilities and obligations not hereby expressly
assumed by the Buyer and the Buyer shall not assume, or in any way be liable
or
responsible for, any liabilities or obligations of the Seller, including,
without limitation, (1) liabilities not relating to the business of the Company,
(2) liabilities relating to any and all debt of the Seller whether or not
related to the business of the Company, (3) liabilities relating to any and
all
of the Seller’s employees’ benefits, including but not limited to severance pay,
pension benefits, insurance and social security payments; and (4) tax
liabilities, including, without limitation, value added tax, income, excise,
sales, use, gross receipts, franchise, employment, payroll or property relating
to the Seller or arising out of the transactions contemplated by this
Agreement.
ARTICLE
3
Payment
3.1.
Payment. On
the
Closing Date, the Buyer shall pay to the Seller eleven million US dollars
($11,000,000.00) (the “Purchase Price”) in full payment for the JV Interests.
3.2.
Wire Instructions: Business Days. Payments
to be made hereunder shall be made by wire transfer in immediately available
funds to the Seller to such account as the Seller shall direct. The amounts
to
be transferred by wire at each Closing to the Seller and the appropriate wire
instructions are set forth in Exhibit
A.
Any
such payment to be made or caused to be made on a day that is not a business
day
shall be made on the first business day immediately following such day.
ARTICLE
4
Closing
4.1.
Closing.
| (a) |
Except
as otherwise mutually agreed upon by the Seller and the Buyer, the
consummation of the transactions for the JV Interests (the “Closing”) will
occur on or about January 5, 2007 (the “Closing
Date”).
|
| (b) |
The
Closing will be held at the office of the Buyer at 4-1 No. 100 Nanhai
Ave., Jinpan Development Area, Haikou, Hainan, People’s Republic of China
or at such other place as shall be agreed upon by the Buyer and Seller,
at
10:00 am local time.
|
ARTICLE
5
Representations
and Warranties of the Buyer
The
Buyer
hereby makes the following representations and warranties to the Seller, each
of
which is true and correct on the date hereof, and will remain true and correct
up to and including the Closing Date.
5.1.
Organization and Standing. The
Buyer
is a corporation duly organized, validly existing and in good standing under
the
laws of the British Virgin Islands, and is duly qualified as a foreign
corporation to do business in the Hainan Province of the People’s Republic of
China and have the requisite corporate power and authority to purchase the
JV
Interests and to carry on the business of the Company as it is now being
conducted.
5.2.
Authorization and Binding Obligation. The
Buyer
has all necessary corporate power and authority to execute and deliver this
Agreement and to perform its obligations hereunder. The execution and delivery
of this Agreement and the consummation of the transactions contemplated hereby
have been duly and validly authorized by all necessary corporate action. This
Agreement has been duly and validly executed and delivered by the Buyer, and,
assuming the due authorization, execution and delivery of this Agreement by
Seller, constitutes a legal, valid and binding obligation of the Buyer,
enforceable against the Buyer in accordance with its terms, subject to the
effect of any applicable bankruptcy, insolvency (including, without limitation,
all laws relating to fraudulent transfers), reorganization, moratorium or
similar laws affecting creditors’ rights generally and subject to the effect of
general principles of equity (regardless of whether considered in a proceeding
at law or in equity).
5.3.
Litigation and Compliance with Law. There
is
no litigation suit, claim, action, administrative, arbitration or other
proceeding, or petition, complaint or, investigation pending, or to the best
of
the Buyer’s knowledge, threatened before any court or governmental body against
the Buyer or any of its affiliates that individually or in the aggregate, has
had, or could reasonably be expected to have, a material adverse change in
the
condition, financial or otherwise, or in the earnings, business affairs or
business prospects of the Buyer, whether or not arising in the ordinary course
of business (a “Buyer Material Adverse Effect”). There is no violation of any
law, regulation, or ordinance or any other requirement of any governmental
body
or court which would have a Buyer Material Adverse Effect.
5.4.
Investment Intent. The
Buyer
is acquiring the JV Interests solely for its own account and not with a view
to
sale or distribution thereof in violation of any securities laws. The Buyer
acknowledges that the JV Interests are restricted securities under the
Securities Act of 1933, as amended, and cannot be sold, transferred, or conveyed
without proper registration or an exemption from registration under the
Securities Act of 1933, as amended.
5.5.
Absence of Conflicting Agreements or Required Consents.
The
execution, delivery and performance of this Agreement by the Buyer: (i) does
not
require the consent of any third party; (ii) will not violate any applicable
law, judgment, order, injunction, decree, rule, regulation or ruling of any
governmental authority to which the Buyer is a party; and (iii) will not, either
alone or with the giving of notice or the passage of time, or both, conflict
with or constitute grounds for termination of or result in a breach of the
terms, conditions or provisions of, or constitute a default under, any contract,
agreement, instrument, license or permit to which the Buyer is now
subject.
ARTICLE
6
Representations
and Warranties of the Seller
The
Seller hereby makes the following representations and warranties to the Buyer,
each of which is true and correct on the date hereof, shall remain true and
correct to and including the Closing Date.
6.1.
Organization and Standing. The
Seller is an entity duly organized, validly existing and in good standing under
the laws of the People’s Republic of China, and at the Closing will have the
requisite corporate power and authority to sell the JV Interests.
6.2.
Authorization and Binding Obligation. The
Seller has all necessary corporate power and authority to execute and deliver
this Agreement and to perform its obligations hereunder. The execution and
delivery of this Agreement and the consummation of the transactions contemplated
hereby have been duly and validly authorized by all necessary corporate action.
This Agreement has been duly and validly executed and delivered by the Seller,
and, assuming the due authorization, execution and delivery of this Agreement
by
Buyer, constitutes a legal, valid and binding obligation of the Seller,
enforceable against the Seller in accordance with its terms, subject to the
effect of any applicable bankruptcy, insolvency (including, without limitation,
all laws relating to fraudulent transfers), reorganization, moratorium or
similar laws affecting creditors’ rights generally and subject to the effect of
general principles of equity (regardless of whether considered in a proceeding
at law or in equity).
6.3.
Litigation and Compliance with Law. There
is
no litigation suit, claim, action, administrative, arbitration or other
proceeding, or petition, complaint or, investigation pending, or to the best
of
the Seller’s knowledge, threatened before any court or governmental body against
the Seller or any of its affiliates that individually or in the aggregate,
has
had, or could reasonably be expected to have, a material adverse change in
the
condition, financial or otherwise, or in the earnings, business affairs or
business prospects of the Seller, whether or not arising in the ordinary course
of business (a “Material Adverse Effect”). There is no violation of any law,
regulation, or ordinance or any other requirement of any governmental body
or
court which would have a Material Adverse Effect.
6.4.
No other Interests.
Other
than through the Company, the Seller directly or indirectly, individually or
with others does not own, manage, operate, control, participate in, perform
consultation services for, and is not connected in any manner with the
ownership, management, operation or control of any business similar to, or
competitive with, the business of the Company or any of its affiliates or
subsidiaries. All activities of the Seller in the business of power distribution
equipment is conducted by the Company.
6.5.
Ownership of the JV Interests: Title.
The
Seller is the beneficial owner of all of the JV Interests which represent a
15%
joint venture interest in the Company. The Seller has not received any notice
of
any adverse claim to the ownership of the JV Interests, does not have any reason
to know of any such adverse claim and is not aware of existing facts that would
give rise to any adverse claim to the ownership of the JV Interests. The sale
and delivery of the JV Interests to the Buyer pursuant to this Agreement shall
vest in the Buyer legal and valid title to the JV Interests, free and clear
of
all liens, security interests, adverse claims or other encumbrances of any
character whatsoever (“Encumbrances”), other than Encumbrances created by the
Buyer and restrictions on resale of the JV Interests under applicable securities
laws.
6.6.
Absence of Conflicting Agreements or Required Consents. The
execution, delivery and performance of this Agreement by the Seller: (i) does
not require the consent of any third party; (ii) will not violate any applicable
law, judgment, order, injunction, decree, rule, regulation or ruling of any
governmental authority to which the Seller is a party or by which the Seller
or
the JV Interests are bound; (iii) will not, either alone or with the giving
of
notice or the passage of time, or both, conflict with, constitute grounds for
termination of or result in a breach of the terms, conditions or provisions
of,
or constitute a default under, any contract, agreement, instrument, license
or
permit to which the Seller or the JV Interests are now subject, and (iv) will
not result in the creation of any lien, charge or Encumbrance on any of the
JV
Interests.
6.7.
Continuation of the Company’s Business. The
Seller does not know of any reason whatsoever why the consummation of the
transactions contemplated hereby would adversely affect the Company’s enjoyment
of all its material benefits, rights, title and interest under any and all
of
its contracts.
6.8.
No Other Agreements to Sell the JV Interests. The
Seller has no legal obligation, absolute or contingent, to sell the JV Interests
or to enter into any option, warrant or other agreement with respect
thereto.
ARTICLE
7
Covenants
of the Buyer
7.1.
Notification. To
the
best of its knowledge, the Buyer shall notify the Seller of any litigation,
arbitration or administrative proceeding pending or, to its knowledge,
threatened against the Buyer or its affiliates which challenges the transactions
contemplated hereby.
ARTICLE
8
Covenants
of the Seller
8.1.
Covenants Against Competition
8.1.1.
Non-Compete. From
the
date hereof until January 5, 2010 (the “Restricted Period”), the Seller, the
shareholder of the Seller and/or their affiliates shall not in the People’s
Republic of China, directly or indirectly:
a. engage
in
the business of selling power distribution equipment, which includes but is
not
limited to the sales of transformers, substations, reactors, and switchgears
(the “Restricted Activity”);
b. assist
any person in conducting the Restricted Activity;
c.
interfere with business relationships (whether formed heretofore or hereafter)
between the Buyer and the Company’s customers or suppliers.
The
Seller and its shareholders agree that, in the event of a breach or threatened
breach by the Seller or its shareholders of this subsection, the Buyer shall
be
entitled to seek injunctive relief restraining the breaching party from engaging
in the Restricted Activity. Nothing hereunder, however, shall be construed
as
prohibiting the Buyer from pursuing any other remedies available to it in law
or
in equity.
8.1.2.
Confidential Information. During
and after the Restricted Period, the Seller and its affiliates, jointly and
severally, shall keep secret and retain in strictest confidence, and shall
not
use for the benefit of themselves or others, all confidential matters relating
to the business of the Company and to the Buyer and its affiliates, including,
but not limited to, trade secrets of the Company, customer lists, subscription
lists, details of author or consultant contracts, pricing policies, operational
methods, marketing plans or strategies, product development techniques or plans,
business acquisition plans, technical processes, designs and design projects,
invention and research projects and other business affairs relating to the
Company’s business and the business of the Buyer and shall not disclose such to
anyone outside of the Buyer and its affiliates; provided, however, this covenant
will not apply to any information which is or becomes generally available to
the
public other than as a result of disclosure by the Seller or it
affiliates.
8.2.
Notification. The
Seller shall notify the Buyer of any material litigation, arbitration or
administrative proceeding pending or, to their knowledge, threatened against
the
Seller or the Company which challenges the transactions contemplated
hereby.
8.3.
No Shopping. From
and
after the date hereof until the termination of the Agreement in accordance
with
its terms, neither the Seller or any representative or agent of the Seller
shall
directly or indirectly solicit or knowingly encourage, including by way of
furnishing information, the initiation of any inquiries or proposal regarding,
or engage in any discussions or enter into any agreements regarding the sale,
transfer, or imposition of any other encumbrance on the JV
Interests.
ARTICLE
9
Joint
Covenants
The
Buyer, the Seller and the Company covenant and agree that between the date
hereof and the Closing Date, each shall act in accordance with the
following:
9.1.
Confidentiality. The
Buyer, the Seller and the Company shall each keep confidential all information
obtained by it or them with respect to the other in connection with this
Agreement and the negotiations preceding this Agreement, and will use such
information solely in connection with the transactions contemplated by this
Agreement, and if the transactions contemplated hereby are not consummated
for
any reason, each shall return promptly to the other, without retaining a copy
thereof, any schedules, documents or other written information obtained from
the
other in connection with this Agreement and the transactions contemplated
hereby. Notwithstanding the foregoing, no party shall be required to keep
confidential or return any information which: (i) is known or available through
other lawful sources, not bound by a confidentiality agreement with the
disclosing party; (ii) is or becomes publicly known through no fault of the
receiving party or its agents; (iii) is required to be disclosed pursuant to
an
order or request of a judicial or governmental authority or because of the
rules
and regulations of the Securities and Exchange Commission (the “SEC”) (provided
the other parties are given reasonable prior notice and a reasonable opportunity
to object or seek exemption from such order, request or regulations); or (iv)
is
developed by the receiving party independently of the disclosure by the
disclosing party. The Company and the Seller hereby acknowledges that the Buyer
is a reporting person under the rules and regulations of the SEC and will be
required, upon the execution of this Agreement, to disclose and file this
Agreement with its regularly required SEC reports.
9.2.
Cooperation. The
Buyer, the Seller and the Company shall cooperate fully with each other in
taking any actions, including actions to obtain the required consent of any
governmental instrumentality or any third party, necessary or helpful to
accomplish the transactions contemplated by this Agreement; provided, however,
that no party shall be required to take any action which would have a material
adverse effect upon it or any affiliated entity.
9.3.
Publicity. The
Seller, the Company and the Buyer agree that, from the date hereof through
the
Closing Date, no public release or announcement concerning the transactions
contemplated hereby shall be issued by such party without the prior consent
of
the other party (which consent shall not be unreasonably withheld), except
as
such release or announcement may be required by law or the rules or regulations
of the British Virgin Islands, the People’s Republic of China, and the United
States or any United States securities exchange on which the securities of
the
Buyer is transacted.
ARTICLE
10
Conditions
of Closing by the Buyer
The
obligations of the Buyer hereunder are, at its option, subject to satisfaction,
at or prior to the Closing Date, of each of the following
conditions:
10.1.
Governmental Consents. The
Seller, and the Company shall have made all the filings necessary under the
laws
of the British Virgin Islands, the United States and the People’s Republic of
China and all applicable waiting periods with respect to each such filing
(including extensions thereof) shall have expired or been
terminated.
10.2.
Adverse Proceedings. No
order,
decree or judgment of any court, agency or other governmental authority shall
have been rendered against any party hereto which would render it unlawful,
as
of the Closing Date, to effect the transactions contemplated by this Agreement
in accordance with its terms.
10.3.
Delivery of Seller’s Documents.
At or
prior to the Closing Date, the Seller or Seller’s counsel or other authorized
representative shall deliver or cause to be delivered to the Buyer any and
all
documentation evidencing Seller’s ownership of the JV Interests to be
transferred to the Buyer and evidencing the transfer of the ownership of such
JV
Interests from the Seller to the Buyer.
ARTICLE
11
Conditions
of Closing by the Seller
The
obligations of the Seller hereunder are, at his option, subject to satisfaction,
at or prior to the Closing Date, of each of the following
conditions:
11.1.
Governmental
Consents.
The
Seller, the Buyer and the Company shall have made all the filings necessary
under the laws of the British Virgin Islands and the United States and all
applicable waiting periods with respect to each such filing (including
extensions thereof) shall have expired or been terminated.
11.2.
Adverse Proceedings.
No
order, decree or judgment of any court, agency or other governmental authority
shall have been rendered against any party hereto which would render it
unlawful, as of the Closing Date, to effect the transactions contemplated by
this Agreement in accordance with its terms.
ARTICLE
12
Fees
and Expenses
12.1.
Expenses. Each
party hereto shall be solely responsible for all costs and expenses incurred
by
it in connection with the negotiation, preparation and performance of and
compliance with the terms of this Agreement.
ARTICLE
13
Documents
To Be Released at Closing
13.1.
The Seller’s Documents. On
the
Closing Date, immediately before the wire transfer to be made at the Closing,
the Seller or its counsel or other authorized representative shall release
the
following documents to the Buyer (unless such documents have been delivered
to
the Buyer prior to the Closing):
| (a) |
Resolutions
of the Board of Directors of the Company and the Seller approving the
execution and delivery of this Agreement and any other related documents
and authorizing the consummation of the transactions contemplated hereby
and thereby;
|
| (b) |
Any
and all documentation evidencing Seller’s ownership of the JV Interests to
be transferred to the Buyer and evidencing the transfer of the ownership
of such JV Interests from the Seller to the
Buyer.
|
| (c) |
All
minutes books and all files and records pertaining to the business
and
operation of the Company that are in the possession of the Seller and
its
affiliates.
|
13.2.
The Buyer’s Documents. On
the
Closing Date, the Buyer or its counsel or other authorized representative shall
release the following to the Seller (unless such documents have been delivered
to the Seller prior to the Closing):
| (a) |
The
Purchase Price.
|
| (b) |
Resolutions
of the Board of Directors of the Buyer approving the execution and
delivery of this Agreement and any other related documents and agreements
referred to herein and authorizing the consummation of the transactions
contemplated hereby and thereby.
|
ARTICLE
14
Indemnification
14.1.
The Seller’s Indemnities.
Subject
to the limitations set forth in this Article 14, the Seller hereby indemnifies,
defends and holds the Buyer harmless with respect to any and all demands,
claims, actions, suits, proceedings, assessments, judgments, costs, losses,
damages, liabilities and expenses, including, without limitation, reasonable
attorney’s fees (collectively, “Losses”), asserted against, resulting from,
imposed upon or incurred by the Buyer directly or indirectly relating to or
arising out of the inaccuracy of any representation or warranty, or the breach
of any covenant or agreement, contained herein or in any document, instrument,
or certificate delivered pursuant hereto.
14.2
The Buyer’s Indemnities.
The
Buyer hereby indemnifies, defends and holds the Seller harmless with respect
to
any and all Losses, asserted against, resulting from, imposed upon or incurred
by the Seller directly or indirectly relating to or arising out of the
inaccuracy of any representation or warranty, or the breach of any covenant
or
agreement, contained herein or in any instrument or certificate delivered
pursuant hereto.
14.3.
Rights. After
the
Closing Date, the indemnification provided in Sections 14.1 and 14.2 and any
other indemnification expressly provided in this Agreement and in the terms
of
any other agreements or documents delivered pursuant to this Agreement will
be
the sole and exclusive remedy of the parties hereto with respect to any and
all
Losses incurred directly or indirectly because of or resulting from or arising
out of or relating to this Agreement, the transactions contemplated hereby,
the
Company or its respective assets, liabilities and business (other than claims
of, or causes of action arising from fraud and the breach by the Seller of
covenants against competition, on confidentiality, on no shopping, cooperation,
and publicity.)
14.4.
Survival of Representations and Warranties. The
representations, warranties, agreements and covenants contained herein will
survive the Closing and the delivery of the documents evidencing the Seller’s
ownership interest of the JV Interests and evidencing the transfer of ownership
of the JV Interests to the Buyer.
14.5.
Procedures
| (a) |
Promptly
after the receipt by any party (the “Indemnified Party”) of notice of: (i)
any claim, or (ii) the commencement of any action, proceeding or
litigation (collectively, “Litigation”) which may entitle such party to
indemnification under this Section, such party shall give the other
party
(the “Indemnifying Party”) written notice of such claim or the
commencement of such claim or Litigation and shall permit the Indemnifying
Party to assume the defense of any such Litigation. The failure to
give
the Indemnifying Party timely notice under this clause shall not preclude
the Indemnified Party from seeking indemnification from the Indemnifying
Party unless such failure has materially prejudiced the Indemnifying
Party’s ability to defend such claim or
Litigation.
|
| (b) |
If
the Indemnifying Party assumes the defense of any such claim or Litigation
with counsel reasonably acceptable to the Indemnified Party, the
obligations of the Indemnifying Party as to such claim or Litigation
shall
be limited to taking all steps necessary in the defense or settlement
of
such claim or Litigation and to holding the Indemnified Party harmless
from and against any losses, damages and liabilities caused by or arising
out of any settlement approved by the Indemnifying party or any judgment
in connection with such claim or Litigation; however, the Indemnified
Party may participate, at its or his expense, in the defense of such
claim
or Litigation provided that the Indemnifying Party shall direct and
control the defense of such claim or Litigation. The Indemnified Party
shall cooperate and make available all books and records reasonably
necessary and useful in connection with the defense. The Indemnifying
Party shall not, in the defense of such claim of Litigation, consent
to
entry of any judgment, except with written consent of the indemnified
Party, or enter into any settlement, except with the written consent
of
the Indemnified Party, which does not include as an unconditional term
thereof the giving by the claimant or the plaintiff to the Indemnified
Party of a release from all liability in respect of such claim or
Litigation.
|
| (c) |
If
the Indemnifying Party shall not assume the defense of any such claim
or
Litigation, the Indemnified Party may, but shall have no obligation
to,
defend against such claim or Litigation in such manner as it may deem
appropriate. The Indemnifying Party shall promptly reimburse the
Indemnified Party for the amount of all reasonable expenses, legal
or
otherwise, incurred by the Indemnified Party in connection with the
defense against or settlement of such claim or Litigation. If no
settlement of the claim or Litigation is made, the Indemnifying party
shall promptly reimburse the Indemnified Party for the amount of any
judgment rendered with respect to such claim or in such Litigation
and of
all reasonable expenses, legal or otherwise, incurred by the Indemnified
Party in the defense against such claim or
Litigation.
|
| (d) |
Regardless
of whether the Indemnifying Party shall have assumed the defense of
any
such claim or Litigation, the Indemnified party shall not admit any
liability with respect to, or settle, compromise or discharge, such
claim
or Litigation without the Indemnifying Party’s prior written consent
(which consent shall not be unreasonably
withheld).
|
ARTICLE
17
Termination
Rights
15.1.
Termination. This
Agreement may be terminated by either the Buyer or the Seller prior to the
Closing, if the party seeking to terminate is not in material default or breach
of this Agreement, upon written notice to the other upon the occurrence of
any
of the following: (i) by mutual written consent of the Buyer and the Seller;
(ii) by the Buyer if any of the conditions set forth in Article 10 shall have
become incapable of fulfillment, and shall not have been waived by the Buyer,
or
(iii) by the Seller if any of the conditions set forth in Article 11 shall
have
become incapable of fulfillment, and shall not have been waived by the Seller.
15.2.
Liability.
The
termination of this Agreement under Section 15.1 shall not relieve any party
of
any liability for breach of this Agreement prior to the date of
termination.
15.3.
Effect of Termination. If
this
Agreement is terminated as described in Section 15.1, this Agreement shall
become void and of no further force or effect, except for provisions of Sections
9.2, 9.3, 12.1, and15.3.
ARTICLE
16
Other
Provisions
16.1.
Specific Performance.
Because
irreparable damage would occur to any party hereto in the event the provisions
of this Agreement are not performed in accordance with the terms hereof, each
party hereto will be entitled to specific performance of the terms hereof,
in
addition to any other remedy at law or equity.
16.2.
Further Assurances. After
the
Closing, the Seller shall from time to time, at the request of and without
further cost or expense to the Buyer, execute and deliver such other instruments
of conveyance and transfer and take such other actions as may reasonably be
requested in order to more effectively consummate the transactions contemplated
here by to vest in the Buyer good and marketable title to the JV Interests
being
transferred hereunder, and the Buyer shall from time to time, at the request
of
the Seller, execute and deliver such other instruments and take such other
actions as may reasonably be requested in order to more effectively relieve
the
Seller of the obligations being assumed by the Buyer in connection therewith.
16.3.
Amendment; Assignment.
Neither
this Agreement nor any term or provision, may be changed, waived, discharged
or
terminated orally, or in any manner other than by an instrument in writing
signed by the Seller and Buyer. Neither party may assign this Agreement without
the consent of the other party, except for transfers arising out of intestacy,
descent and distribution and succession.
16.4.
Binding Effect.
This
Agreement will bind and inure to the benefit of the respective parties, their
successors and assigns, heirs and personal representatives.
16.5.
Entire Agreement. This
Agreement and any Exhibits hereto embody the entire agreement and understanding
of the parties hereto and supersede any and all prior agreements, arrangements
and understandings relating to the matters provided for herein. In the event
of
a conflict between the terms of this Agreement and any other agreement executed
in connection herewith, the terms of this Agreement shall prevail. No amendment,
waiver of compliance with any provision or condition hereof or consent pursuant
to this Agreement shall be effective unless evidence by an instrument in writing
signed by the party against whom enforcement of any waiver, amendment, change,
extension or discharge is sought.
16.6.
Headings. The
headings set forth in this Agreement are for convenience only and will not
control or effect the meaning or construction of provisions of this
Agreement.
16.7.
Payments. Neither
the Buyer on the one hand nor the Seller, or the Company on the other has made
any representation or warranty with respect to the tax treatment of
consideration paid by the Buyer to the Seller in exchange for the JV
Interests.
16.8.
Governing Law. The
construction and performance of this Agreement shall be governed by the laws
of
the State of New York without regard to conflict of laws provision that would
differ to the laws of another jurisdiction.
16.9.
Notices. Any
notice, demand or request required or permitted to be given under the provisions
of this Agreement shall be in writing and shall be deemed to have been duly
delivered and received on the date of personal delivery or on the date of
receipt, if mailed by registered or certified mail, postage prepaid and return
receipt requested, or on the date of a stamped receipt, if sent by an overnight
facsimile or facsimile transmission, and shall be addressed to the following
addresses, or to such other address as any party may request, in the case of
the
Seller, by notifying the Buyer, and in the case of the Buyer, by notifying
the
Seller:
The
Buyer:
Jinpan
International Limited
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Attention:
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Facsimile:
(▇▇▇) ▇▇▇-▇▇▇▇
The
Seller:
Haikou
Jinpan Special Transformer Works
4th
Plant,
Jinpan American Industrial Park
Haikou
City, Hainan Province, P.R.China
Attention:
Gao Jingshan
Facsimile:
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16.11
Counterparts. This
Agreement may be executed in one or more counterparts, each of which will be
deemed an original and all of which together will constitute one and the same
instrument.
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date
first written above.
| The Buyer | ||
| Jinpan International Limited | ||
| By:_______________________ | ||
| Name: Li Zhiyuan | ||
| Title: CEO & Chairman, Board of Directors | ||
| The Seller | ||
| Haikou Jinpan Special Transformer Works | ||
| By:_________________________ | ||
| Name: Gao Jingshan | ||
| Title: General Manager |
Exhibit
A
Wire
Instructions