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As Of Filer Filing For·On·As Docs:Size Issuer Agent 10/23/14 Solar Power, Inc. 8-K:1,9 10/22/14 5:328K RDG Filings/FA |
Document/Exhibit Description Pages Size 1: 8-K Current Report HTML 22K 2: EX-10 Exhibit 10.1 HTML 24K 3: EX-10 Exhibit 10.2 HTML 68K 4: EX-10 Exhibit 10.3 HTML 74K 5: EX-10 Exhibit 10.4 HTML 69K
Exhibit 10.4
Equity Purchase Agreement |
Confidential |
Equity Purchase Agreement
This Equity Purchase Agreement (hereinafter referred to as “The Agreement”) is signed on Oct. 22th, 2014 in Shanghai by and between the following two parties.
Party A( the acquirer ): SPI Solar Power Suzhou Co., Ltd.
Party B1(the Transferor I ): Beijing Taihedafang Investment Development Co., Ltd.
Party B2(the Transferor II): Xinghe Chaerhu Development Co., Ltd.
The following Party B1 Party B2 shall jointly be referred to Party B; Transferor I and Transferor II shall be jointly referred to as Transferors.
Target company: Xinghe Chaerhu Hairun Ecological Photovoltaic Power Generation Co., Ltd.
Party C(Equity pledgee): GD Solar Co., Ltd.
The parties, with friendly consultation, based on mutual cooperation and benefit, reach this Agreement on purchase of shares as follows:
Equity Purchase Agreement |
Confidential |
Equity pledgee: |
Equity pledgee of the project is the EPC general contractor. The target project has been completed, accepted and grid-connected. To guarantee that the party C should be paid the outstanding EPC service payables. The transferor agrees to pledge the 100% equity of the target company which he has hold to the equity pledgee, and the priority of equity transfer is to refund the equity pledgee the EPC project with the earning equity. Equity pledgee agrees to conduct equity sign procedures complying with this agreement. |
Specific procedures of Target company: |
To achieve the goal of buyout in this agreement, the target company is required to regroup both at home and abroad. After the regrouping, the related party assigned by the party A and B is responsible for the takeover of target company and the equity of its shareholder abroad to finish the buyout of the company as well as its foreign investment and projects in construction. The cost and expense of the target company in setting up the overseas architecture shall be borne by party B. |
Target Date: |
100% stock of the target company (target stock as following) is required to be registered in the name of the acquirer totally directly or indirectly (the date of completion is Closing Date). Closing Date should occur in ten working days counted from the satisfaction of closing conditions confirmed by transfers and acquirers. |
Approval must be obtained by the time of signing the agreement |
The acquirer confirms that during the signing of this agreement, it has obtained all the necessary internal approval and consent for completing this transaction except that the issues about the outstanding ordinary shares as the consideration of payment need the approval of the general meeting of the shareholders. As for the appointed payment of stock in the agreement, party A ensures that he and his affiliated party will vote in favor of the payment. The transferor confirms that during the signing of this agreement, it has obtained all the necessary internal approval and consent for completing this transaction, and ensures that the target company has obtained all the necessary internal approval and consent for completing this transaction. |
Equity Purchase Agreement |
Confidential |
Procurement price |
Subject to the conditions of the agreement, according to the materials, statement and guarantee provided by the transferor, the transfer amount of the target equity is RMB515 million among these payment, the consideration for shares is RMB180 million; the other RMB335 million is directly paid by party A to the target company, so as to repay the outstanding EPC project payables. When all the unpaid fees, costs, payables, debts and/or contigent liabilities in the related approval process of all the related photovoltaic power station hold by the target company which should have been paid by the target company before the settlement has lead the target company to still assume the responsibilities after the settlement, party B agree with party A to deduct the fee from the consideration of share transfer which should be paid to party B or to claim the compensation from party B. Party B will assume the responsibility of paying the debts or contigent liabilities which the target company and party A didn’t pay before the settlement. If the target company pays for party B, party B shall be entitled to deduct the fee from the consideration of share transfer which should be paid to party B or to claim the compensation from party B. |
Payment method |
The purchase price of the target company's consideration is RMB515 million, of which RMB50 million shall be paid in cash, RMB360 million shall be paid in the form of financial leases, and the remaining amount shall be settled with RMB105 million worth of Solar Power Inc.'s ordinary shares. Among them:
1. The first payment of cash: After signing this Agreement within 10 working days to pay RMB20 million in cash as an advance payment.
2. The second payment of cash: Transferor shouldl cooperate with the Offeror or a third party designated agency acquirers to conduct due diligence after receiving advance payment. The acquirers to complete due diligence and the two parties confirmed after the date of delivery conditions to satisfy, within 10 working days, the pledgee shall cooperate with the stock solution and formalities of equity, And both parties to complete the target equity settlement, change of business registration and transfer of the target company. Party A should pay RMB30 million in cash before December 20, 2014 after the Closing Date. |
Equity Purchase Agreement |
Confidential |
Equity Purchase Agreement |
Confidential |
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4. Party B has to finish the founds timely and completely in accordance with the provisions of the articles of association of the company.and keep the contribution integrity without pumping back and transfer.
5. The trades under this agreement between two parties do not violate any any of the applicable laws, regulations, rules or orders,and have received or will receive all the necessary government authorities for approval or registration / filing;besides, such transactions do not violate any contract with Party B, or any asset- binding agreement or document, and has obtained all necessary consents of the third party.
6.Target Corp need provide Party A with the authenticity, accuracy and integrity of the register of shareholders lists which reflects all the equity of the Target Corp status.
7. Business situation and risk of the Target Corp has been fully and completely disclosed to Party A, and there is no any items or risk which will damage to party A.
8. The documents,data and information which are provided by the target company all should truly, completely and accurately reflect its financial situation and the consequence during its operating period order to fulfill the agreement.
9. According to the terms and procedures under the Chinese law, the enterprises which are legally established by the target company can be lawfully existed as long as they have gained all the necessary approvals and permissions of the government.
10. In addition to the case which have been disclosed to Party A, the target company does not have other affiliated companies which are not disclosed to the party
11. Except for the cases Party A has disclosed, the target company does not have other subsidiaries which are not disclosed to Party A. Target companies enjoy a full ownership to their entitled properties and claims. The Target company has not established any form of guarantee on the property, mortgage, pledge, lien, deposit or other security interests, nor is there any form of total ownership or other rights of third party.
12. The target company has obtained a patent, trademark, patent technology and the ownership and usage of other intellectual property used in the operation, and the target company is entitled to use all or part of the intellectual property rights of the Target Company through the implementation, use, license, license enforcement, transfer and any lawful means, so as to obtain commercial interests.
13. Any target companies use intellectual property patents, trademarks, and other non-patent technology without infringing any third party's rights. If there is no individual or entity make any claims of the use the company’s intellectual property rights, or question or doubt the validity of the target company’s related license or agreement , the target company can continue to have / or use of its now owns and / or the aforementioned use of all intellectual property rights. |
Equity Purchase Agreement |
Confidential |
14. There is no significant debts or liabilities which would impact on the target company to carry out their normal daily business.
15. Since target company establishment of completion of the delivery day, it always adhere to the tax laws and regulations, all the payment of taxes and fees that tax department definitely required have been fully paid. Not received tax or any other authority department issued a reminder file, and not because of tax problems disciplined by any pose adverse effect to the transaction, there is no has not yet been settled pose adverse effect to the transaction tax investigation or dispute.
16. Target company shall has no illegal operations and has not received any administrative Punishment from the competent department or any judicial penalty from authority department.
Target company.
17. Target company shall have no unsettled Litigation, arbitration or any other procedure which against and threatened the target company or might forbid the signing and the effectiveness of this contract;party B and target company shall have no ideal about any discrepancy or illegal operation which might lead to litigation,arbitration of any other procedure that have been mentioned above.
18. Target company shall obey all the rules about labor employment and housing accumulation fund management on the laws,pay the salary fully and on time,and pay the social insurance premiums , housing fund and any other related expenses which the employer should pay for his employees,do not pay overdue or not pay at all.
19. Up to the day this agreement is signed,there shall be no unsettled labor dispute arbitration or litigation between the target company and its previous or former employees.
20. The Target Corp has obtained any license, concession (if any), government approval, such licenses, franchise (if any), full efficacy approved by the government, which are required to maintain its normal operation within the scope of its business, the transferor and the Target Corp should guarantee that there is no event that is disclosed to Party A and of which any kind of license, concession or government approved efficacy may be impaired. The transferor should ensure that the 50MW photovoltaic power station project held by the Target Corp can obtain all the necessary and relevant approval procedures and operating procedures, which include but not limit to: project archival filing registration approval documents, project establishing documents, project construction stage documents, grid or operation phrase documents, etc. |
Equity Purchase Agreement |
Confidential |
Equity Purchase Agreement |
Confidential |
Equity Purchase Agreement |
Confidential |
Equity Purchase Agreement |
Confidential |
Equity Purchase Agreement |
Confidential |
Liability for breach |
1. Except as otherwise stipulated in this Agreement, any party in violation of any of its guarantee,convention or other provisions under this Agreement, thereby causing the other party for any costs, liability or suffered any direct economic losses, the defaulting party shall compensate for other parties based on any costs, liability or damages above. The compensation shall be equal to non-breaching party’s actual loss due to the breach and all deserved bereft benefits.
2. If Party A fails unjustified payments on time under this Agreement, Party B agrees to give ten (10) business days of payment grace period ("grace period"), if within the grace period, the Party A has not yet paid, then from the starting date of the grace period, Party B is entitled to get a daily late fee by three times of bank lending rate of Party A’s unpaid funds until the entire due amount is paid. In the above-mentioned grace period, the Party has not yet paid the sums due, Party B has the option to terminate this contract; Meanwhile, Party B will return the relevant funds having paid by Party A but in addtion to the part because of the Party B and / or the target company failing to complete delivery within the period stipulated in this agreement.
3. Occurred the following circumstances, party A shall be entitled to require party B to return the advance payment in full of the principal, and the advance payment of the principal of the same period in the same period bank loans interest rate of interest:
(1)After the advance payment to party B, or according to the extension of the term of this Agreement, party B for reasons not attributable to the party's request to lift the Equity Purchase Agreement and the termination of target equity acquisition.
(2)Since party A has paid advance payment, or under this agreement within the time limit extension, the two parties meet delivery condition but party B refuses to go through the equity alteration registration and cause no delivery.
(3)If after party A has paid advance payment, party B fails to meet all conditions of delivery, the parties agree and confirm that automatically to give party B a certain time in order to meet the delivery conditions, if during the automatic extension of the period, party B cannot meet the delivery conditions, and lead to delay to handle the equity alteration registration or no delivery (Unless further appropriate delay due to technical reasons), unless party A agrees to further delay in order to meet the delivery conditions or exemption from party B to satisfy all/part of delivery condition, or party A agrees that party B has further extension handle equity change registration.(In this case, party B shall, in accordance with requirements of the party A continue to perform the share purchase agreement under Equity Purchase Agreement entry in this case), Party a has the right to require party B to return the advance payment in full of the principal, and the advance payment of the principal produced in the same period bank loans interest rate of interest. |
Equity Purchase Agreement |
Confidential |
(4)Since party A to pay advance payment, or pursuant to this agreement, within the time limit delay due to force majeure cause unable to perform or continue to perform this agreement will make purpose cannot be carried out under this agreement, either party shall have the right to demand termination of this agreement and terminate the target equity acquisition, at the same time, party A shall be entitled to require party B to return the advance payment in full of the principal, and the advance payment of the principal to the same period bank loans interest rate of interest. | |
Confidentiality clause |
This agreement is the fact Described in the terms and conditions of this agreement, and any materials provided in the independent due diligence, constitutes confidential information (hereinafter referred to as "confidential information"). Parties agree, unless the relevant government departments to audit (review), valuation, negotiation and implementation of the transaction described in this Agreement shall have jurisdiction or, ministries or stock exchange requirements for disclosure, the parties will not be used or to the first tripartite disclose any confidential information. |
General terms and conditions |
(1)This Agreement is governed by Chinese law.
(2)Disputes arising from this Agreement shall be resolved through friendly consultations of the parties, if it can not be resolved, any party may apply to the people's court, and has jurisdiction over the location of the plaintiff's lawsuit. |
Integrity of contract |
This is a complete contract by all parties. It supersedes all prior or contemporaneous oral or written communications, proposals, representations and warranties. The relevant quote, order, acknowledgment, or other communication between the parties on this contract in the contents of any conflict with this contract, are in this contract shall prevail. |
Equity Purchase Agreement |
Confidential |
Force majeure | This contract, force majeure means unforeseeable, unavoidable and insurmountable objective conditions, including: War, fire, flood, typhoon, earthquake, policy changes or other events of force majeure. After the above force majeure, the party affected by force majeure shall notify the other parties immediately. And shall provide proof of the competent authorities within 15 days after the incident eliminated. After one party provides the proof of force majeure, doesn’t bear the contract. |
Separability | Any provision of this contract as a result of any cause in whole or in part invalid, the other provisions of this contract remains the original effect, should be fulfilled. |
Title | The title of this contract is only for easy reading, do not affect any provision of this contract. |
Others | Signature and seal of this agreement by the parties, six copies, party A holds two copies, the remaining parties holds one, has the same legal effect. |
Equity Purchase Agreement |
Confidential |
(This is the signature page)
Party A: SPI Solar Power Suzhou Co., Ltd.
Legal representative or authorized representative:
October 22, 2014 (seal)
Party B1: Beijing Taihedafang Investment Development Co., Ltd.
Legal representative or authorized representative:
October 22, 2014 (seal)
Party B2: Xinghe Chaerhu Development Co., Ltd.
Legal representative or authorized representative:
October 22, 2014 (seal)
Target company: Xinghe Chaerhu Hairun Ecological Photovoltaic Power Generation Co., Ltd.
Legal representative or authorized representative:
October 22, 2014 (seal)
Party C: GD Solar Co., Ltd.
Legal representative or authorized representative:
October 22, 2014 (seal)
Attachment 1:disclosure letter
14
This ‘8-K’ Filing | Date | Other Filings | ||
---|---|---|---|---|
12/20/14 | ||||
Filed on: | 10/23/14 | |||
For Period End: | 10/22/14 | 8-K | ||
List all Filings |