STOCK PURCHASE AGREEMENT by and among China Recycling Energy Corporation Sifang Holdings Co., Ltd. Shanghai TCH Energy Technology and Great Essential Investment, Ltd. April 15, 2009
Exhibit
10.1
EXECUTION
VERSION
by and
among
China
Recycling Energy Corporation
Sifang
Holdings Co., Ltd.
Shanghai
TCH Energy Technology
and
Great
Essential Investment, Ltd.
April 15,
2009
TABLE OF
CONTENTS
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Page
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1.
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Definitions
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1
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2.
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Purchase
and Sale
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4
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2.1
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Sale
and Issuance of the Shares
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4
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2.2
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Closing
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4
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2.3
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Use
of Proceeds
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5
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3.
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Representations
and Warranties of the Company Group
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5
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3.1
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Organization,
Good Standing and Qualification
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5
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3.2
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Capitalization
and Voting Rights
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5
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3.3
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Authorization
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5
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3.4
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Valid
Issuance of Shares
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6
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3.5
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Governmental
Consents
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6
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3.6
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Broker
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6
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3.7
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SEC
Reports and OTC Requirements
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6
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3.8
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Litigation
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6
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3.9
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Compliance
with Laws
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7
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3.10
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Environmental
and Safety Laws
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8
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3.11
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Intellectual
Property Rights
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8
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3.12
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Certain
Securities Law Representations
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9
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4.
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Representations,
Warranties and Covenants of the Investor
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9
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4.1
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Status
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9
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4.2
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Authorization
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9
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4.3
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Purchase
for Own Account
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10
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4.4
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Disclosure
of Information
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10
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4.5
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Investment
Experience
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10
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4.6
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Regulation
S
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10
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4.7
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Lock
Up Agreement
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11
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4.8
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Restricted
Securities
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11
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4.9
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Legends
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11
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5.
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Conditions
of the Investor’s Obligations at the Closing
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12
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5.1
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Representations
and Warranties
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12
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i
TABLE OF CONTENTS
(continued)
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Page
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5.2
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No
Material Adverse Effect
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12
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5.3
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Performance
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12
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5.4
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Authorizations
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12
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5.5
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No
Restraints
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12
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5.6
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Proceedings
and Documents
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12
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5.7
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Transaction
Documents
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13
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5.8
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Closing
Certificates
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13
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6.
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Conditions
of the Company’s Obligations at the Closing
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13
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7.
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Confidentiality
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13
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7.1
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Confidentiality
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13
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8.
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Termination
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14
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8.1
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Termination
by Investor
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14
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8.2
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Termination
by the Company
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15
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8.3
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Effect
of Termination
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15
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9.
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Miscellaneous
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16
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9.1
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Survival
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16
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9.2
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Successors
and Assigns
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16
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9.3
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Indemnity
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16
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9.4
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Governing
Law
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17
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9.5
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Dispute
Resolution
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17
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9.6
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Notices
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18
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9.7
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Fees
and Expenses
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18
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9.8
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Severability
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19
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9.9
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Amendments
and Waivers
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19
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9.10
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No
Waiver
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19
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9.11
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Rights
Cumulative
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19
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9.12
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No
Presumption
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19
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9.13
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Headings
and Subtitles; Interpretation
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19
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9.14
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Counterparts
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19
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9.15
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Entire
Agreement
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20
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ii
TABLE OF CONTENTS
(continued)
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Exhibits
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Page
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Exhibit
A
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Form
of Registration Rights Agreement
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iii
This
STOCK PURCHASE AGREEMENT (this “Agreement”) is entered into as of April 15, 2009
(the “Effective Date”), by and among China Recycling Energy Corporation, a
Nevada corporation (the “Company”), Sifang Holdings Co., Ltd., a company
organized under the Laws of the Cayman Islands (“Sifang”), Shanghai TCH Energy
Technology Co., Ltd., a wholly-foreign-owned enterprise organized under the Laws
of the People’s Republic of China (“TCH” and together with the Company and
Sifang, the “Company Group”), and Great Essential Investment, Ltd., a company
registered in the Virgin Islands (the “Investor”). Each of the
Company, Sifang, TCH and the Investor is referred to herein individually as a
“Party” and collectively as the “Parties.”
RECITALS
The
Company proposes to issue, and the Investor proposes to purchase 2,352,941
shares (the “Shares”) of common stock, US$0.001 par value, of the Company (the
“Common Stock”).
WITNESSETH
NOW,
THEREFORE, in consideration of the foregoing, the mutual promises hereinafter
set forth, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Parties hereto hereby agree as
follows:
1. Definitions. The
following terms shall have the meanings ascribed to them below:
“Affiliate” means, with
respect to a Person, any other Person that, directly or indirectly, Controls, is
Controlled by or is under common Control with such Person.
“Agreement” has the meaning
set forth in the Preamble of this Agreement.
“Arbitration Notice” has the
meaning set forth in Section 9.5(b)
hereof.
“Board” or “Board of
Directors” means the board of directors of the Company.
“Business Day” means any day
that is not a Saturday, Sunday, legal holiday or other day on which commercial
banks are required or authorized by law to be closed in New York,
USA.
“Closing” has the meaning set
forth in Section
2.2 hereof.
“Common Stock” means the
common stock of the Company, US $0.001 par value.
“Company” has the meaning set
forth in the Preamble of this Agreement.
“Company Group” has the
meaning set forth in the Preamble of this Agreement.
“Confidential Information” has
the meaning set forth in Section 7.1
hereof.
“Contract” means, as to any
Person, any provision of any security issued by such Person or any oral or
written contract, agreement, undertaking, understanding, indenture, note, bond,
loan, instrument, lease, mortgage, deed of trust, franchise, or license to which
such Person is a party or by which such Person or any of its property is
bound.
“Control” of a given Person
means the power or authority, whether exercised or not, to direct the business,
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 shall conclusively be presumed to exist upon possession
of beneficial ownership or power to direct the vote of more than fifty percent
(50%) of the votes entitled to be cast at a meeting 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 “Controlled” and
“Controlling” have meanings correlative to the foregoing.
“Disclosing Party” has the
meaning set forth in Section 7.1(c)
hereof.
“Dispute” has the meaning set
forth in Section
9.5(a) hereof.
“Effective Date” has the
meaning set forth in the Preamble of this Agreement.
“Environmental Laws” has the
meaning set forth in Section 3.10
hereof.
“FCPA” means the United States
Foreign Corrupt Practices Act of 1977, as amended.
“Governmental Authority” means
any nation or government or any 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 government authority, agency,
department, board, commission or instrumentality of the U.S., Cayman Islands,
PRC or any other country, or any political subdivision thereof, any court,
tribunal or arbitrator, and any self-regulatory organization.
“Indemnifiable Loss” means,
with respect to any Person, any action, cost, damage, disbursement, expense,
liability, loss, deficiency, diminution in value, obligation, penalty or
settlement of any kind or nature. Notwithstanding anything to the
contrary provided in the preceding sentence, “Indemnifiable Loss” shall include,
but shall not be limited to, (i) interest or other carrying costs, penalties,
legal, accounting and other professional fees and expenses incurred in the
investigation, collection, prosecution and defense of claims and amounts paid in
settlement, that may be imposed on or otherwise incurred or suffered by such
Person and (ii) any Taxes that may be payable by such Person by reason of the
indemnification of any Indemnifiable Loss hereunder, other than Taxes that would
have been payable notwithstanding the event giving rise to
indemnification.
“Indemnified Party” has the
meaning set forth in Section 9.3(b)
hereof.
“Indemnifying Party” has the
meaning set forth in Section 9.3(b)
hereof.
2
“Investor” has the meaning set
forth in the Preamble of this Agreement.
“Intellectual Property” means
all patents, patent applications, trademarks, service marks, trade names,
copyrights, trade secrets, processes, compositions of matter, formulas, designs,
inventions, proprietary rights, know-how and any other confidential or
proprietary information owned or otherwise used by the Company
Group.
“Knowledge” means, with
respect to any Person, the actual knowledge of such Person and that knowledge
which should have been acquired by such Person after making such due inquiry and
exercising such due diligence as a prudent business person would have made or
exercised in the management of his or her business affairs, including but not
limited to due inquiry of all officers, directors, employees, consultants and
professional advisers (including attorneys, accountants and auditors) of the
Person and of its Affiliates who could reasonably be expected to have knowledge
of the matters in question.
“Law” or “Laws” means any
constitutional provision, statute or other law, rule, regulation, official
policy or interpretation of any Governmental Authority and any injunction,
judgment, order, ruling, assessment or writ issued by any Governmental
Authority.
“Material Adverse Effect”
means with respect to any Person, any event, occurrence, fact, condition, change
or development that (i) has or is reasonably like to have a material adverse
effect on the operations, results of operations, financial condition, prospects,
assets or liabilities of such Person, or (ii) materially impairs or is
reasonably likely to materially impair the ability to perform the material
obligations of such Person hereunder or under any Transaction Document or any
Material Contract of such Person, as applicable. In the case of any
member of the Company Group, any Material Adverse Effect with respect to such
member of the Company Group shall be deemed to constitute a Material Adverse
Effect with respect to all of the members of the Company Group.
“Party” has the meaning set
forth in the Preamble of this Agreement.
“Person” means any individual,
corporation, partnership, limited partnership, proprietorship, association,
limited liability company, firm, trust, estate or other enterprise or
entity.
“PRC” means the People’s
Republic of China, but solely for the purposes of this Agreement and the other
Transaction Documents, excluding the Hong Kong Special Administrative Region,
the Macau Special Administrative Region and the islands of Taiwan.
“Purchase Price” has the
meaning set forth in Section 2.1
hereof.
“Registration Rights
Agreement” means the Registration Rights Agreement entered into by the
Company and the Investor on the date hereof, in the form attached hereto as
Exhibit A.
3
“SAFE” means the State
Administration of Foreign Exchange of the PRC.
“SEC” means the U.S.
Securities and Exchange Commission.
“SEC Reports” has the meaning
set forth in Section
3.7(a) hereof.
“Securities Act” means the
U.S. Securities Act of 1933, as amended and interpreted from time to
time.
“Subsidiary” means, with
respect to any specified Person, any other Person Controlled by the specified
Person, directly or indirectly, whether through contractual arrangements or
through ownership of equity securities, voting power or registered
capital.
“Tax” means any national,
provincial or local income, sales and use, excise, franchise, real and personal
property, gross receipt, capital stock, production, business and occupation,
disability, employment, payroll, severance or withholding tax or any other type
of tax, levy, assessment, custom duty or charge imposed by any Governmental
Authority, any interest and penalties (civil or criminal) related thereto or to
the nonpayment thereof, and any loss or Liabilities incurred in connection with
the determination, settlement or litigation of any Liabilities arising
therefrom.
“Tax Return” means any tax
return, declaration, report, estimate, claim for refund, claim for extension,
information return, or statement relating to any Tax, including any schedule or
attachment thereto.
“Transaction Documents” means
this Agreement and the Registration Rights Agreement, and each of the agreements
and other documents otherwise required in connection with implementing the
transactions contemplated by any of the foregoing.
“U.S. GAAP” means generally
accepted accounting principles in the United States, applied on a consistent
basis.
“US $” means United States
dollars, the lawful currency of the United States.
2. Purchase
and Sale.
2.1 Sale and Issuance of the
Shares. Subject to the terms and conditions of this Agreement
at the Closing (as defined below), the Company will issue and sell to
the Investor, and the Investor will subscribe for and purchase, the Shares, for
an aggregate purchase price of US $2,000,000 (the “Share Purchase
Price”).
2.2 Closing. The
consummation of the sale and issuance of Shares pursuant to Section 2.1 (the
“Closing”) shall take place remotely via the exchange of documents and
signatures as soon as practicable after all closing conditions specified in
Section 5
hereof have been waived or satisfied in accordance thereto, or at such time and
place as the Company and the Investor shall mutually agree upon, orally or in
writing. At the Closing, the Company shall deliver to the Investor a
certificate or certificates representing the Shares (or through its transfer
agent as applicable), and the Investor shall pay the Purchase Price at the
Closing, by check or wire transfer to a bank account designated in writing by
the Company prior to the Closing.
4
2.3 Use of
Proceeds. The proceeds from the Purchase Price shall be used
by the Company for general corporate purposes and for its other working capital
needs.
3. Representations and Warranties of the
Company Group. Each member of the Company Group, jointly and
severally, represents and warrants to the Investor that each of the statements
contained in this Section 3 is true,
complete and not misleading as of the date of this Agreement, and each of such
statements shall be true, complete and not misleading on and as of the date of
the Closing, with the same effect as if made on and as of the date of the
Closing.
3.1 Organization, Good Standing and
Qualification. Each member of the Company Group is duly
organized, validly existing and in good standing under the Laws of the
jurisdiction of its incorporation. Each member of the Company Group
has all requisite legal and corporate power and authority to carry on its
business as now conducted, and is duly qualified to transact business in each
jurisdiction in which it conducts and proposes to conduct business.
3.2 Capitalization
and Voting Rights.
(a) As
of the date of this Agreement, the authorized capital of the Company consists of
100,000,000 shares of Common Stock, of which (i) 36,425,094 shares of Common
Stock are currently issued and outstanding, (ii) 3,000,000 shares of Common
Stock are subject to options, and (iii) there are no other capital stock issued
or authorized.
(b) All
share capital of each member of the Company Group has been duly and validly
issued (or subscribed for), fully paid and non-assessable and are free of Liens
and any restrictions on transfer (except for any restrictions on transfer under
applicable securities Law or as expressly contemplated under the Transaction
Documents) and have been issued in compliance with the requirements of all
applicable securities Laws and regulations, including, to the extent applicable,
the Securities Act.
(c) No
member of the Company Group has granted or agreed to grant any Person any
registration rights (including piggyback registration rights) with respect to
any of their securities, except to Carlyle Asia Growth Partners III, L.P. and
its affiliates.
3.3 Authorization. Each
member of the Company Group has all requisite legal and corporate power, and has
taken all corporate action on the part of such Person, its officers, directors
and shareholders as may be necessary for the authorization, execution and
delivery of this Agreement and each of the Transaction Documents to which it is
a party and the performance of all obligations of such Person hereunder and
thereunder. The authorization, issuance of the Shares being sold
hereunder, has been taken or will be taken prior to the Closing, and this
Agreement, each of the Transaction Documents to which each member of the Company
Group is a party, when executed and delivered by such Person, will constitute
the valid and legally binding obligation of such Person, enforceable against
such Person in accordance with their respective terms.
5
3.4 Valid
Issuance of Shares.
(a) The
Shares that are being purchased by or issued to the Investors hereunder, when
issued, delivered and paid for in accordance with the terms of this Agreement
for the consideration expressed herein, will be duly and validly issued, fully
paid and non-assessable, free from any Liens and will be free of restrictions on
transfer except as provided in this Agreement (except for any restrictions on
transfer under applicable securities Laws).
(b) Except
as expressly contemplated by the Transaction Documents, the Shares are not
subject to any preemptive rights, rights of first refusal or other similar
rights.
3.5 Governmental
Consents. No consent, approval, order or authorization of, or
registration, qualification, designation, declaration or filing with, any
Governmental Authority on the part of the Company Group is required in
connection with the valid execution, delivery and consummation of the
transactions contemplated by this Agreement or the Transaction Documents or the
offer, sale, issuance or reservation for issuance of the Shares.
3.6 Broker. The Company
does not have any Contract with any broker, finder or similar agent with respect
to the transactions contemplated by this Agreement or by any of the Transaction
Documents and the Company has incurred no liability for any brokerage fees,
agents’ fees, commissions or finders’ fees in connection with any of the
Transactions Documents or the consummation of the transactions contemplated
therein.
3.7 SEC
Reports and OTC Requirements.
(a) The
Company has filed all reports, schedules, forms, statements and other documents
required to be filed by it under the Securities Act and the Exchange Act (the
foregoing materials, including the exhibits thereto and documents incorporated
by reference therein, being collectively referred to herein as the “SEC
Reports”) on a timely basis or has received a valid extension of such time of
filing and has filed any such SEC Reports prior to the expiration of any such
extension.
(b) The
Company has not, in the 12 months preceding the date hereof, received notice
from the OTC on which the Common Stock has been traded to the effect that the
Company is not in compliance with the OTC requirements. The Company
is, and upon consummation of the transactions contemplated hereby expects to be,
in compliance with all of the OTC listing requirements.
3.8 Litigation. There
is no action, suit, investigation or other court, regulatory or other proceeding
pending or to the Knowledge of the Company Group, currently threatened against
any member of the Company Group or their respective assets, businesses or
proposed business activities, nor is there any basis for any of the
foregoing. There is no judgment, decree or order of any court or
Governmental Authority in effect and binding on any member of the Company Group
or their respective assets or properties. No Government Authority has
at any time materially challenged or questioned in writing the legal right of
any member of the Company Group to conduct its business as presently being
conducted or proposed to be conducted. No member of the Company Group
has received any opinion or memorandum or advice from legal counsel to the
effect that it is exposed, from a legal standpoint, to any liability or
disadvantage which may be material to its business.
6
3.9 Compliance
with Laws.
(a) Each
member of the Company Group is in compliance with all material Laws or
regulations that are applicable to it or to the conduct or operation of its
business or the ownership or use of any of its assets or
properties.
(b) No
event has occurred and no circumstance exists that (with or without notice or
lapse of time) (i) may constitute or result in a violation by any member of the
Company Group of, or a failure on the part of such member to comply with, any
material Law or regulation, or (ii) may give rise to any obligation on the part
of a member of the Company Group to undertake, or to bear all or any portion of
the cost of, any remedial action of any material nature.
(c) No
member of the Company Group has received any notice from any Governmental
Authority regarding (i) any actual, alleged, possible or potential material
violation of, or material failure to comply with, any material Law, or (ii) any
actual, alleged, possible or potential material obligation on the part of such
member of the Company Group to undertake, or to bear all or any portion of the
cost of, any remedial action of any material nature.
(d) Neither
any member of the Company Group nor any of its respective officers, directors or
representatives has (i) made, directly or indirectly, any payment, loan or gift
of any money, or anything of value to, or for the use of, any government
official (including an official of a government-owned or controlled entity), any
political party or official, or any candidate for political office, or any other
person where it knew or had reason to know that such payment, loan or gift would
be given directly or indirectly to any government official or political party or
official candidate, and it has not taken any action or made any payment
(including promises to take action or make payments) for the purpose of inducing
any of the foregoing persons to do any act to make any decisions in his or its
official capacity (including a decision to fail to perform his or its official
function) or use his or its influence with a government or instrumentality in
order to affect any act or decision of such government or instrumentality in
order to assist any member of the Company Group or Investor or their respective
Affiliates in obtaining or retaining any business or to obtain an unfair
competitive advantage or which may cause any member of the Company Group or
Investor or their respective Affiliates to be in violation of, the FCPA or
similar laws and regulations, or (ii) established or maintained any fund or
assets in which any member of the Company Group has proprietary rights that have
not been recorded in its books and records of such member of the Company
Group.
7
3.10 Environmental and Safety
Laws. Each member of the Company Group (a) is in compliance
with any and all currently applicable foreign, federal, state, national,
provincial, and local laws and regulations relating to the protection of the
environment or hazardous or toxic substances or wastes, pollutants or
contaminants (“Environmental Laws”), (b) has received and is in compliance with
all permits, licenses or other approvals required of it under applicable
Environmental Laws to conduct its business, (c) has not received actual notice
of any actual or potential liability for the investigation or remediation of any
disposal or release of hazardous or toxic substances or wastes, pollutants or
contaminants, (d) no member of the Company Group has Knowledge of any facts
which would give rise to any claim, public or private, against it of violation
of Environmental Laws arising out of the operations of the Company and its
Subsidiaries; and (e) no member of the Company Group has stored any hazardous
materials on real properties now or formerly owned, leased or operated by any of
them, and has not disposed of any hazardous materials, in a manner contrary to
any Environmental Laws.
3.11 Intellectual
Property Rights.
(a) The
members of the Company Group own or otherwise has the sufficient right or
license to use all Intellectual Property necessary for its business as currently
conducted without any violation or infringement of the rights of others, free
and clear of all Liens other than Permitted Liens. There is no
pending or, to the Knowledge of the Company Group, threatened, claim or
litigation against any member of the Company Group, contesting the right to use
its Intellectual Property, asserting the misuse thereof, or asserting the
infringement or other violation of any Intellectual Property of any third
party. All material inventions and material know-how conceived by
employees of the Company Group, including without limitation the Principal
Shareholders, and related to the businesses of the Company Group are “works made
for hire”, and all right, title, and interest therein, including any
applications therefore, have been transferred and assigned to, and are currently
owned by, the Company Group.
(b) No
proceedings or claims in which any member of the Company Group alleges that any
person is infringing upon, or otherwise violating, any member of the Company
Group’s Intellectual Property rights are pending, and none has been served,
instituted or asserted by any member of the Company Group.
(c) None
of the Key Employees of any member of the Company Group is obligated under any
Contract, or subject to any judgment, decree or order of any court or
administrative agency, that would interfere with the use of his or her best
efforts to promote the interests of the Company Group or that would conflict
with the business of the Company Group as presently conducted. It
will not be necessary to utilize in the course of the Company Group’s business
operations any inventions of any of the respective employees of the Company
Group made prior to their employment by the Company Group, except for inventions
that have been validly and properly assigned or licensed to the Company Group as
of the date hereof.
(d) The
members of the Company Group have each taken all security measures that in the
judgment of the Company Group are commercially prudent in order to protect the
secrecy, confidentiality and value of their respective Intellectual
Property.
8
3.12 Certain
Securities Law Representations.
(a) Assuming
the accuracy of the Investor’s representations and warranties set forth in Section 4, the offer,
sale and issuance of the Shares as contemplated by the Transaction Documents,
are exempt from the qualification, registration and prospectus delivery
requirements of the Securities Act, the Trust Indenture Act of 1939, as amended
and any applicable securities Laws.
(b) None
of the Company, its Subsidiaries, their respective Affiliates, or any Person
acting on its or their behalf has, directly or indirectly, made offers or sales
of any security, or solicited offers to buy, sell or offer to sell or otherwise
negotiate in respect of, in the United States or to any United States citizen or
resident, any security which is or would be integrated with the sale of the
Shares in a manner or under circumstances that would require the registration of
the Shares under the Securities Act.
(c) None
of the Company, its Subsidiaries, their respective Affiliates, or any Person
acting on its or their behalf (other than the Investor, its Affiliates or
persons acting on their behalf, as to whom the Company makes no representation)
has engaged in any directed selling efforts (within the meaning of Regulation S)
with respect to the Shares; and each of the Company, its Subsidiaries, their
respective Affiliates and each person acting on its or their behalf has complied
with the offering restrictions requirement of Regulation S.
(d) None
of the Company or its Subsidiaries has and no one acting on its behalf has, (a)
taken, directly or indirectly, any action designed to cause or to result in, or
that has constituted or which might reasonably be expected to constitute, the
stabilization or manipulation of the price of the Common Stock to facilitate the
sale or resale of any of the Shares, (b) sold, bid for, purchased, or paid
anyone any compensation for soliciting purchases of, the Shares, or (c) paid or
agreed to pay to any person any compensation for soliciting another to purchase
any other securities of the Company or its Subsidiaries.
4. Representations, Warranties and
Covenants of the Investor. The Investor hereby represents,
warrants and covenants to the Company Group, that:
4.1 Status. The
Investor is an entity duly organized, validly existing and in good standing
under the Laws of the jurisdiction of its incorporation or
formation
4.2 Authorization. The
Investor has full power and authority to enter into this Agreement and each of
the Transaction Documents to which it is a party, and this Agreement and each of
the Transaction Documents to which it is a party, when executed and delivered by
the Investor, will constitute valid and legally binding obligations of the
Investor, enforceable against it in accordance with their respective terms
except (a) as limited by applicable bankruptcy, insolvency, reorganization,
moratorium and other Laws of general application affecting enforcement of
creditors’ rights generally, (b) as limited by Laws relating to the availability
of specific performance, injunctive relief or other equitable remedies, and (c)
to the extent the indemnification provisions contained in the Transaction
Documents may be limited by applicable securities Laws.
9
4.3 Purchase for Own
Account. The Shares to be received by the Investor, if any,
will be acquired for investment purposes for the Investor’s own account or the
account of one or more of the Investor’s Affiliates, not as a nominee or agent,
and not with a view to the resale or distribution of any part thereof, and the
Investor does not have any present intention of selling, granting any
participation in, or otherwise distributing the same.
4.4 Disclosure of
Information. The Investor believes it has received all the
information it considers necessary or appropriate for deciding whether to
purchase the Shares. The Investor and its advisors have been afforded
the opportunity to ask questions of and receive answers from representatives of
the Company regarding the terms and conditions of the offering of the Shares and
relating to the business, finances and operations of the members of the Company
Group. Notwithstanding the foregoing, each Party acknowledges and
agrees that the foregoing shall not in any way limit, reduce or affect the
representations and warranties provided by Company Group in this Agreement or
the right of the Investor to rely thereon.
4.5 Investment
Experience. The Investor is an investor in securities of
companies in the development stage and acknowledges that it is able to fend for
itself, can bear the economic risk of its investment, and has such knowledge and
experience in financial or business matters that it is capable of evaluating the
merits and risks of the investment in the Shares. If other than an
individual, the Investor also represents it has not been organized for the
purpose of acquiring the Shares.
4.6 Regulation
S.
(a) The
Investor is not a “U.S. Person” (as defined in Rule 902 of Regulation S under
the Securities Act) and it understands that no action has been or will be taken
in any jurisdiction by the Company that would permit a public offering of the
Shares in any country or jurisdiction where action for that purpose is
required. The Investor is not acquiring the Shares for the account or
benefit of any U.S. persons except in accordance with exemption from
registration requirements of the Securities Act or in a transaction not subject
thereto.
(b) The
Investor (i) agrees that it will not offer, sell or otherwise transfer any of
the Shares nor, unless in compliance with the Securities Act, engage in hedging
transactions involving such Shares on or prior to the date which is one year
after the later of the date of the commencement of the offering and the date of
original issuance and such later date, if any, as may be required by applicable
law, except (A) to the Company, (B) pursuant to a registration statement that
has been declared effective under the Securities Act, (C) for so long as any
Shares is eligible for resale pursuant to Rule 144A under the Securities Act, to
a person it reasonably believes is a “qualified institutional buyer” as defined
in Rule 144A that purchases for its own account or for the account of another
qualified institutional buyer to whom notice is given that the transfer is being
made in reliance on Rule 144A, (D) pursuant to offers and sales to Persons who
are not “U.S. Persons” (within the meaning of Regulation S) that occur outside
the United States within the meaning of Regulation S, or (E) pursuant to any
other available exemption from the registration requirements of the Securities
Act, and (ii) agrees that it will give to each Person to whom Shares are
transferred a notice substantially to the effect of this
paragraph.
10
(c) No
form of “directed selling efforts” (as defined in Rule 902 of Regulation S under
the Securities Act), general solicitation or general advertising in violation of
the Securities Act has been or will be used nor will any offers by means of any
directed selling efforts in the United States be made by the Investor or any of
its representatives in connection with the offer and sale of any of the
Shares.
4.7 Lock Up
Agreement. The Investor covenants and agrees that, for a
period beginning at Closing and ending on the date that is one year after
Closing, the Investor will not, without the prior written consent of the Company
(which consent may be withheld in the Company’s sole discretion) (i) sell, offer
to sell, contract or agree to sell, hypothecate, pledge, grant any option to
purchase or otherwise dispose of or agree to dispose of, directly or indirectly,
or request or file (or participate in the filing of) a registration statement
with the SEC in respect of the Shares, (ii) establish or increase a put
equivalent position or liquidate or decrease a call equivalent position within
the meaning of the rules and regulations of the SEC with respect to, any Common
Stock or any securities convertible into or exercisable or exchangeable for
Common Stock, or warrants or other rights to purchase Common Stock or any such
securities, or (iii) enter into any swap or other arrangement that transfers to
another, in whole or in part, any of the economic consequences of ownership of
Common Stock or any securities convertible into or exercisable or exchangeable
for Common Stock, or warrants or other rights to purchase Common Stock or any
such securities, whether any such transaction is to be settled by delivery of
Common Stock or such other securities, in cash or otherwise or (iv) publicly
announce an intention to effect any transaction specified in clause (i), (ii) or
(iii) above.
4.8 Restricted
Securities. The Investor understands that the Shares are
characterized as “restricted securities” under U.S. federal securities Laws
inasmuch as they are being acquired from the Company in a transaction not
involving a public offering and that under such Laws and applicable regulations
such securities may be resold without registration under the Securities Act only
in certain limited circumstances. The Investor understands that the
Shares have not been qualified or registered under the Laws of any other
jurisdiction and therefore may be viewed as restricted securities under any or
all of such other applicable securities Laws.
4.9 Legends. The
Investor understands that the certificates evidencing the Shares issued pursuant
to this Agreement may bear the following legend:
“THE
SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR APPLICABLE STATE
SECURITIES LAWS. THE SECURITIES MAY NOT BE OFFERED FOR SALE, SOLD,
TRANSFERRED OR ASSIGNED IN THE (A) ABSENCE OF (1) A REGISTRATION STATEMENT IN
EFFECT WITH RESPECT TO THE SECURITIES UNDER THE SECURITIES ACT OR (II) AN
OPINION OF COUNSEL TO THE HOLDER THAT SUCH REGISTRATION IS NOT REQUIRED OR (B)
UNLESS SOLD PURSUANT TO RULE 144 OR RULE 144 OF THE SECURITIES
ACT. THIS SECURITY MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE
MARGIN ACCOUNT OR OTHER LOAN SECURED BY SUCH SECURITIES.”
11
5. Conditions of the Investor’s
Obligations at the Closing. The obligations of the Investor to
consummate the Closing under Section 2.1 of this
Agreement, unless otherwise waived in writing by the Investor, are subject to
the fulfillment on or before the Closing of each of the following
conditions:
5.1 Representations and
Warranties. Each of the representations and warranties of the
Company Group contained in Section 3 shall be
true, complete and not misleading when made, and shall be true, complete and not
misleading in all material respects on and as of the Closing with the same
effect as though such representations and warranties had been made on and as of
the date of the Closing, except in either case for those representations and
warranties (a) that already contain any materiality qualification, which
representations and warranties, to the extent already so qualified, shall
instead be true, complete and not misleading in all respects as so qualified as
of such respective dates and (b) that address matters only as of a particular
date, which representations will have been true, complete and not misleading in
all material respects (subject to clause (a) of this Section 5.1) as of
such particular date.
5.2 No Material Adverse
Effect. Since the date of this Agreement there shall not have
been or occurred any Material Adverse Effect in respect of any member of the
Company Group.
5.3 Performance. The
Company Group shall have performed and complied with all agreements, obligations
and conditions contained in the Transaction Documents that are required to be
performed or complied with by such Parties, on or before the
Closing.
5.4 Authorizations. The
Company Group shall have obtained all authorizations, approvals, waivers,
permits or filings of any Person or any Governmental Authority necessary for the
consummation of all of the transactions contemplated by this Agreement and each
of the other Transaction Documents, including without limitation any filings,
authorizations, approvals, waivers or permits that are required in connection
with the lawful issuance of the Shares pursuant to this Agreement and all such
filings, authorizations, approvals, waivers and permits shall be effective as of
the Closing.
5.5 No Restraints. No
court of competent jurisdiction or other Governmental Authority shall have
issued any judgment to, and no Person shall have instituted any action seeking
to, enjoin, restrain or otherwise prohibit the consummation of the
Transactions.
5.6 Proceedings and
Documents. All corporate and other proceedings in connection
with the transactions to be contemplated at the Closing and all documents
incident thereto, including without limitation written approval from all of the
then current holders of equity interests of the Company and the other members of
the Company Group, as applicable, with respect to this Agreement and the other
Transaction Documents and the transactions contemplated hereby and thereby,
shall have been completed in form and substance satisfactory to the Investor,
and the Investor shall have received all such counterpart original or other
copies of such documents as it may reasonably request.
12
5.7 Transaction
Documents. The parties shall have executed and delivered the
Transaction Documents.
5.8 Closing
Certificates. The chief executive officer or president of each
member of the Company Group shall have executed and delivered to the Investor at
the Closing a certificate dated as of the Closing stating that the conditions
specified in this Section 5 have been fulfilled or satisfied (including, for the
avoidance of doubt, a “bringdown” as of the Closing to the effect of Sections 5.1(a)
and(b)), and (ii) attaching thereto (a) the Charter Documents of such
member of the Company Group as then in effect, and (b) copies of all resolutions
approved by the shareholders and boards of directors of such member of the
Company Group related to the transactions contemplated hereby (as
applicable).
6. Conditions of the Company’s
Obligations at the Closing. The obligations of the Company to
consummate the Closing under Section 2 of this
Agreement, unless otherwise waived in writing by the Company, is subject to the
conditions that (i) the representations and warranties of the Investor contained
in Section 4 shall be true, complete and not misleading in all material respects
when made, and shall be true, complete and not misleading in all material
respects on and as of the Closing with the same effect as though such
representations and warranties had been made on and as of the date of the
Closing and (ii) the Investor shall have paid the Purchase Price as contemplated
in Section 2.2
hereof. For the avoidance doubt, the obligation of the Company to
consummate the transactions under the Closing shall not be relieved or modified
by any waiver by the Investor of the applicable closing conditions set forth in
Section 5.
7. Confidentiality.
7.1 Confidentiality.
(a) Disclosure. The
terms and conditions of this Agreement, any term sheet or memorandum of
understanding entered into pursuant to the transactions contemplated hereby, all
exhibits and schedules attached hereto and thereto, the transactions
contemplated hereby and thereby, and all information furnished by any Party
hereto and by representatives of such Parties to any other Party hereof or any
of the representatives of such Parties in connection with the transactions,
including any information relating to the business, markets, financial data of
such Party or its Affiliates (collectively, the “Confidential Information”),
shall be considered confidential information and shall not be disclosed by any
Party hereto to any third party except in accordance with the provisions set
forth below.
13
(b) Permitted
Disclosures. Notwithstanding the foregoing, the Company and
the Investor may disclose (a) the Confidential Information to its current or
bona fide prospective investors, Affiliates and their respective employees,
bankers, lenders, accountants, legal counsels, business partners or
representatives or advisors who need to know such information, in each case only
where such persons or entities are informed of the confidential nature of the
Confidential Information and are under appropriate nondisclosure obligations
substantially similar to those set forth in this Section 7.1, (b) such
Confidential Information as is required to be disclosed pursuant to routine
examination requests from Governmental Authorities with authority to regulate
such Party’s operations, in each case as such Party deems appropriate in its
sole discretion, and the Confidential Information to any Person to which
disclosure is approved in writing by the other Parties hereto. Any
Party hereto may also provide disclosure in order to comply with applicable
Laws, as set forth in Section 7.1(c)
below.
(c) Legally Compelled Disclosure; SEC
Disclosure. Except as set forth in Section 7.1(b) above,
in the event that any Party is requested or becomes legally compelled (including
without limitation, pursuant to any applicable tax, securities, or other Laws
and regulations of any jurisdiction) to disclose the existence of this
Agreement, such party (the “Disclosing Party”) shall provide the other Parties
hereto with prompt written notice of that fact and shall consult with the other
Parties hereto regarding such disclosure. At the request of any other
Parties, the Disclosing Party shall, to the extent reasonably possible and with
the cooperation and reasonable efforts of the other Parties, seek a protective
order, confidential treatment or other appropriate remedy. In any
event, the Disclosing Party shall furnish only that portion of the information
that is legally required and shall exercise reasonable efforts to obtain
reliable assurance that confidential treatment will be accorded such
information. Notwithstanding the foregoing, the Parties agree and
acknowledge that certain public disclosure or filings may be required by
applicable securities Law with respect to the transactions contemplated by the
Transaction Documents, and the Parties agree to consult with one another and
agree upon the form and substance of such announcement or filing prior to making
such announcement or filing. No later than the later of (i) the day
following the Closing and (ii) the Business Day following the clearance for the
announcement of the Closing in the United States, the Company shall file a Form
8-K announcing the Closing of the transactions contemplated hereby and the
material terms thereof, which must be reviewed and consented to by the Investor
prior to the filing.
(d) Other
Exceptions. Notwithstanding any other provision of this Section 7.1, the
confidentiality obligations of the Parties shall not apply to: (i) information
which a restricted party learns from a third party which the receiving party
reasonably believes to have the right to make the disclosure, provided the
restricted party complies with any restrictions imposed by the third party; (ii)
information which is rightfully in the restricted party’s possession prior to
the time of disclosure by the protected party and not acquired by the restricted
party under a confidentiality obligation; or (iii) information which enters the
public domain without breach of confidentiality by the restricted
party.
8. Termination.
8.1 Termination by
Investor. The Investor may terminate this Agreement at any
time prior to any Closing by written notice to the Company if any of the
following has occurred:
(a) any
Material Adverse Effect has occurred;
14
(b) if
any court of competent jurisdiction or other Governmental Authority shall issue
any judgment or take such other action enjoining, restraining or otherwise
prohibiting the consummation of any of the transactions contemplated by this
Agreement;
(c) the
failure of any member of the Company Group to satisfy the conditions contained
in Sections 5 hereof (including, for the avoidance of doubt, the breach,
inaccuracy or incompleteness of any representation or warranty such that the
condition contained in Section 5.1 would not
be satisfied) on or prior to, April 14, 2009;
(d) any
outbreak or escalation of hostilities or other national or international
calamity or crisis, including acts of terrorism, or material adverse change or
disruption in economic conditions in, or in the financial markets of, the United
States, the European Union, the Peoples’ Republic of China or Hong Kong (it
being understood that any such change or disruption shall be relative to such
conditions and markets as in effect on the date hereof), if the effect of such
outbreak, escalation, calamity, crisis, act or material adverse change in the
economic conditions in, or in the financial markets of, the United States, the
European Union, the Peoples’ Republic of China or Hong Kong could be reasonably
expected to make it, in the Investor’s sole judgment, impracticable or
inadvisable to proceed with the consummation of the transactions on the terms
and in the manner contemplated in this Agreement;
(e) suspension
of trading in the Common Stock by the OTC Bulletin Board;
(f) the
enactment, publication, decree or other promulgation after the date hereof of
any applicable Law that could be reasonably expected to have a Material Adverse
Effect; or
(g) the
declaration of a banking moratorium by any federal or New York state
Governmental Authority; or the taking of any action by any Governmental
Authority after the date hereof in respect of its monetary or fiscal affairs
that could reasonably be expected to have a material adverse effect on the
financial markets in the United States, European Union, the Peoples’ Republic of
China, Hong Kong or elsewhere.
8.2 Termination by the
Company. The Company may terminate this Agreement at any time
prior to any Closing by written notice to the Investor based upon the Investor’s
intentional breach of its representations, warranties, covenants and obligations
under this Agreement.
8.3 Effect of
Termination. In the event that this Agreement is terminated
pursuant to this Section 8, and
if:
(a) the
termination occurs before the Closing, then this Agreement shall immediately
terminate, become void and have no effect, without any liability or obligation
on the part of any party to this Agreement;
Notwithstanding
anything to the contrary in the foregoing, if this Agreement is terminated
pursuant to Section
8.1 or 8.2 as a result of a
material or intentional breach of any representation, warranty or covenant
contained in this Agreement, nothing herein shall affect the non-breaching
party’s right to damages and any other costs, expenses and losses on account of
such other party’s breach, and any other remedies available in equity or at
law. Notwithstanding anything to the contrary in this Agreement, the
provisions of Section
7.1 (Confidentiality), this Section 8.3 and Section 9
(Miscellaneous) shall survive any termination of this
Agreement.
15
9. Miscellaneous.
9.1 Survival. The
representations and warranties set forth under Section 3 and any covenants and
agreements of the Company Group contained in or made pursuant to this Agreement
shall survive the Closing; provided, that notwithstanding any provision herein
to the contrary, any claim for indemnity made pursuant to this Agreement by
Investor shall be made within one year of the Closing.
9.2 Successors and
Assigns. Except as otherwise provided herein, the terms and
conditions of this Agreement shall inure to the benefit of and be binding upon
the respective successors and assigns of the Parties hereto whose rights or
obligations hereunder are affected by such terms and conditions. This
Agreement, and the rights and obligations hereunder, shall not be assigned
without the mutual written consent of the Parties hereto, provided that the
Investor may assign its rights and obligations to an Affiliate of the Investor
without consent of the other Parties under this Agreement. Nothing in
this Agreement, express or implied, is intended to confer upon any Party other
than the Parties hereto or their respective successors and assigns any rights,
remedies, obligations, or liabilities under or by reason of this Agreement,
except as expressly provided in this Agreement.
9.3 Indemnity.
(a) Each
of the members of the Company Group hereby agrees to jointly and severally
indemnify and hold harmless the Investor, and the Investor’s employees,
Affiliates, agents and assigns, from and against any and all Indemnifiable
Losses suffered by the Investor, or the Investor’s employees, Affiliates, agents
and assigns, directly or indirectly, as a result of, or based upon or arising
from any (i) inaccuracy in or breach or nonperformance of any of the
representations, warranties, covenants or agreements made by the members of the
Company in or pursuant to this Agreement or any of the other Transaction
Documents and (ii) compliance with SAFE by the Company or any of its
shareholders.
(b) Any
Party seeking indemnification with respect to any Indemnifiable Loss (an
“Indemnified Party”) shall give written notice to the party required to provide
indemnity hereunder (the “Indemnifying Party”).
(c) If
any claim, demand or Liability is asserted by any third party against any
Indemnified Party, the Indemnifying Party shall upon the written request of the
Indemnified Party, defend any actions or proceedings brought against the
Indemnified Party in respect of matters embraced by the indemnity under this
Section
9.3. If, after a request to defend any action or proceeding,
the Indemnifying Party neglects to defend the Indemnified Party, a recovery
against the Indemnified Party suffered by it in good faith shall be conclusive
in its favor against the Indemnifying Party, provided, however,
that, if the Indemnifying Party has not received reasonable notice of the action
or proceeding against the Indemnified Party or is not allowed to control its
defense, judgment against the Indemnified Party shall only constitute
presumptive evidence against the Indemnifying Party.
16
(d) This
Section 9.3
shall not be deemed to preclude or otherwise limit in any exercise of any other
rights or pursuit of other remedies for the breach of this Agreement or with
respect to any misrepresentation.
9.4 Governing Law. This
Agreement shall be governed by and construed under the Laws of the State of New
York, without regard to principles of conflicts of law thereunder.
9.5 Dispute
Resolution.
(a) Any
dispute, controversy or claim (each, a “Dispute”) arising out of or relating to
this Agreement, or the interpretation, breach, termination or validity hereof,
shall be resolved at the first instance through consultation between the parties
to such Dispute. Such consultation shall begin immediately after any
party has delivered written notice to any other party to the Dispute requesting
such consultation.
(b) If
the Dispute is not resolved within sixty (60) days following the date on which
such notice is given, the Dispute shall be submitted to arbitration upon the
request of any party to the Dispute with notice to each other party to the
Dispute (the “Arbitration Notice”).
(c) The
arbitration shall be conducted in Hong Kong and in accordance with the Rules of
the International Chamber of Commerce by one (1) arbitrator selected in
accordance with such Rules.
(d) The
arbitration proceedings shall be conducted in English.
(e) Each
party to the arbitration shall cooperate with each other party to the
arbitration in making full disclosure of and providing complete access to all
information and documents requested by such other party in connection with such
arbitration proceedings, subject only to any confidentiality obligations binding
on such party.
(f) The
arbitrator shall decide any dispute submitted by the parties to the arbitration
tribunal strictly in accordance with the substantive law of New York and shall
not apply any other substantive law.
(g) Any
party to the Dispute shall be entitled to seek preliminary injunctive relief, if
possible, from any court of competent jurisdiction pending the constitution of
the arbitral tribunal.
(h) During
the course of the arbitration tribunal’s adjudication of the dispute, this
Agreement shall continue to be performed except with respect to the part in
dispute and under adjudication.
17
(i) The
award of the arbitration tribunal shall be final and binding upon the parties,
and the prevailing party may apply to a court of competent jurisdiction for
enforcement of such award.
9.6 Notices. Any notice
required or permitted pursuant to this Agreement shall be given in writing and
shall be given either personally or by sending it by next-day or second-day
courier service, fax, electronic mail or similar means to the address as shown
below (or at such other address as such Party may designate by fifteen (15)
days’ advance written notice to the other Parties to this Agreement given in
accordance with this Section 9.6):
If to the
Company, to:
Room 909,
Tower B
▇▇▇▇▇’an
Metropolis Center
▇▇. ▇▇
▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Xi’ an
▇▇▇▇▇▇, ▇▇▇▇▇
Attention: ▇▇.
▇▇▇▇▇▇ ▇▇
Tel: ▇▇▇
(▇▇) ▇▇▇▇-▇▇▇▇
Fax: ▇▇▇
(▇▇) ▇▇▇▇-▇▇▇▇
If to the
Investor, to:
Great
Essential Investment, Ltd
▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
Wickhams
Cay 1
Road Town
Tortola
British
Virgin Islands
Attention:
Mr. Jinghe Dong
Tel: ▇▇-▇▇-▇▇▇▇-▇▇▇▇
Fax:
▇▇-▇▇-▇▇▇▇-▇▇▇▇
Where a
notice is sent by next-day or second-day courier service, service of the notice
shall be deemed to be effected by properly addressing, pre-paying and sending by
next-day or second-day service through an internationally-recognized courier a
letter containing the notice, with a confirmation of delivery, and to have been
effected at the expiration of two (2) days after the letter containing the same
is sent as aforesaid. Where a notice is sent by fax or electronic
mail, service of the notice shall be deemed to be effected by properly
addressing, and sending such notice through a transmitting organization, with a
written confirmation of delivery, and to have been effected on the day the same
is sent as aforesaid.
9.7 Fees and
Expenses. Each Party shall pay all of its own costs and
expenses incurred in connection with the negotiation, execution, delivery and
performance of this Agreement and other Transaction Documents and the
transactions contemplated hereby and thereby. If any action at law or
in equity is necessary to enforce or interpret the terms of this Agreement, the
prevailing party shall be entitled to reasonable attorney’s fees and expenses in
addition to any other relief to which such party may be
entitled.
18
9.8 Severability. If
one or more provisions of this Agreement are held to be unenforceable under
applicable Law, such provision shall be excluded from this Agreement and the
balance of the Agreement shall be interpreted as if such provision were so
excluded and shall be enforceable in accordance with its terms.
9.9 Amendments and
Waivers. Any term of this Agreement may be amended and the
observance of any term of this Agreement may be waived (either generally or in a
particular instance and either retroactively or prospectively), only with the
written consent of the Company and Investor. Any amendment or waiver
effected in accordance with this paragraph shall be binding upon each of the
Parties hereto.
9.10 No Waiver. Failure
to insist upon strict compliance with any of the terms, covenants, or conditions
hereof will not be deemed a waiver of such term, covenant, or condition, nor
will any waiver or relinquishment of, or failure to insist upon strict
compliance with, any right, power or remedy power hereunder at any one or more
times be deemed a waiver or relinquishment of such right, power or remedy at any
other time or times.
9.11 Rights
Cumulative. Each and all of the various rights, powers and
remedies of a party hereto will be considered to be cumulative with and in
addition 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
Agreement. The exercise or partial exercise of any right, power or
remedy will neither constitute the exclusive election thereof nor the waiver of
any other right, power or remedy available to such Party.
9.12 No Presumption. The
Parties acknowledge that any applicable Law that would require interpretation of
any claimed ambiguities in this Agreement against the Party that drafted it has
no application and is expressly waived. If any claim is made by a
Party relating to any conflict, omission or ambiguity in the provisions of this
Agreement, no presumption or burden of proof or persuasion will be implied
because this Agreement was prepared by or at the request of any Party or its
counsel.
9.13 Headings and Subtitles;
Interpretation. The titles and subtitles used in this
Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement. Unless a provision hereof
expressly provides otherwise: (i) the term “or” is not exclusive; (ii) words in
the singular include the plural, and words in the plural include the singular;
(iii) the terms “herein”, “hereof”, and other similar words refer to this
Agreement as a whole and not to any particular section, subsection, paragraph,
clause, or other subdivision; (iv) the term “including” will be deemed to be
followed by “, but not limited to,”; (v) the masculine, feminine, and neuter
genders will each be deemed to include the others; (vi) the terms “shall”,
“will”, and “agrees” are mandatory, and the term “may” is permissive; (vii) the
term “day” means “calendar day”, and (viii) all references to dollars or to
“US$” are to currency of the United States of America (and shall be deemed to
include reference to the equivalent amount in other currencies).
9.14 Counterparts. This
Agreement may be executed in two or more counterparts, each of which shall be
deemed an original, but all of which together shall constitute one and the same
instrument. Facsimile and e-mailed copies of signatures shall be
deemed to be originals for purposes of the effectiveness of this
Agreement.
19
9.15 Entire
Agreement. This Agreement and the Transaction Documents,
together with all schedules and exhibits hereto and thereto, constitute the
entire agreement among the Parties with respect to the subject matter hereof and
thereof, and no Party shall be liable or bound to any other Party in any manner
by any warranties, representations, or covenants except as specifically set
forth herein or therein. For the avoidance of doubt, this Agreement
shall be deemed to terminate and supersede the provisions of any term sheet,
letter of intent, memorandum of understanding, confidentiality and nondisclosure
agreement, or other agreement executed between Investor and the Company prior to
the date of this Agreement, none of which agreements shall
continue.
[The
remainder of this page has been left intentionally blank]
20
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date
first written above.
|
COMPANY
GROUP:
|
CHINA RECYCLING ENERGY CORPORATION | |
|
By:
|
/s/ ▇▇▇▇▇▇ ▇▇
|
|
|
Name:
▇▇▇▇▇▇ ▇▇
|
||
|
Title:
Chief Executive Officer
|
||
|
SIFANG
HOLDINGS CO., LTD.
|
||
|
By:
|
/s/ ▇▇▇▇▇▇ ▇▇
|
|
|
Name:
▇▇▇▇▇▇ ▇▇
|
||
|
Title:
Chief Executive Officer
|
||
|
SHANGHAI
TCH ENERGY TECHNOLOGY CO., LTD.
|
||
|
By:
|
/s/ Xiaoshan He
|
|
|
Name:
Xiaoshan He
|
||
|
Title:
Director
|
||
Signature
page continued on next page
21
|
INVESTOR:
|
For and on behalf of | |
| GREAT ESSENTIAL INVESTMENT, LTD. | ||
|
By:
|
/s/
Jinghe Dong
|
|
|
Name:
Jinghe Dong
|
||
|
Title:
Executive
Director
|
||
22