Project Investment Contract
Exhibit
10.1
[Translated
from the original Chinese version]
Party
A：Local
Government of Hanshan County, Anhui Province, People’s Republic of
China
Party
B：Xxxxx Xxxxx
Limited
In order
to promote the sound development of the regional economy, and protect the rights
and interests of the investors and the public interests, based on the principle
of good faith cooperation, equality and mutual benefit, common development,
through friendly negotiation, the local government of Hanshan County, Anhui
Province, PRC (“Party A” hereafter) and Xxxxx Xxxxx Limited (“Party B”
hereafter) enter into this Contract and act in accordance with this
Contract.
Section
1 Investment Overview
Article
1 Party B is to acquire the Chaodong Nanomaterials
Science and Technology Co., Ltd. based in the industrial park of Hanshan County,
Anhui Province, and to invest in a new Nano Precipitated Calcium Carbonate
project (“Project” hereafter). The specified investment size and planning of
Party B is:
the
designed production capacity is 200,000 (Two hundred
thousand) tons/year;
the total
investment is ￥1,200,000,000 (RMB
One and 2/10 billion);
the land
for the Project is 512 Mu;
it is
anticipated to continue with the investment in construction beginning from 2009,
and fulfill the construction in 2013.
Party B
is entitled to the planning and designing, and reporting for approval in
accordance with the project progress and the land use
conditions.
Section
2 Project Construction
Article
2 Prerequisites of the Investment
Only when
the following Prerequisites are met, can the Project investment be launched：
（1）The industrial
land for the first phase construction of 512 Mu (subject to the actual
measurement) has already been granted to Party B for the Project by Party A
irrevocably;
（2）Party B or other
designated PRC. or foreign entity by Party B is to successfully acquire Chaodong
Nanomaterials Science and Technology Co., Ltd.(“CNST” hereafter), and fulfill
the relevant procedures;
（3）Party A guarantees
that the existing limestone resources (the already transferred part included)
based in the Dacishan area of Hanshan County (geographic location is subject to
the detailed geological investigation report) meets the quality requirement of
the resolvent limestone, and the reserves are at least 60,000,000 (Sixty
million) tons (the reserves and quality requirement are to be specified and
defined in the feasibility study report by Party B). The actual reserves of the
limestone are subject to the result of the appraisal organized by the Ministry
of Land and Resources of Anhui Province;
（4） Party A commits
that the rights to all the existing reserves without use rights transfer in the
Dacishan area shall be given to Party B at one time, and no other rights to the
reserves be given to any other parties. The limestone shall be transferred to
Party B according to its production need in batches and publicly, and Party B
shall pay for the limestone use rights in accordance with relevant national
regulations annually.
（5） If any of the
aforesaid Prerequisite or Prerequisites are not able to be met because of any
reason after signing the Contract, Party B is entitled to terminate the Contract
immediately with no obligation; If Party B encounters any loss hereby, Party A
is obliged to compensate Party B.
Article 3
Location, area, and terms of use rights of the Land
The
industrial land selected by Party B is based in the industrial park of Party A,
north of the location of the former CNST. Detailed location is referenced in the
attached chart. The terms of the land is 50 (fifty) years. The land for the
project shall be planned by one time, and be given to Party B by phase based on
Party B’s investment plan. The land given for the first phase shall not be less
than 512 Mu and no land shall be planned for any other project in the planning
area.
The
reserved industrial land is located in the east of the E. city ring road, the
south of provincial road No. 105, to the north of Changguang village, with the
area of 1000 Mu and rights reserved for 5 years. Party A is entitled to decide
whether to use the aforesaid reserved land or not within the reserved terms. If
it has decided to use the reserved land within the terms, Party A shall provide
the land according to the project schedule of Party B timely.
The land
for the Research & Development center and the real estate project (staff
residential land) is located in the Hancheng New Area (detailed location is
subject to the planning line), with area of 40 Mu (subject to the actual
measurement of the government land administration department and recorded in the
State-owned Land-use Right
Certificate granted to Party B). The terms of residence is 70 (seventy)
years.
Article
4 Conditions of the Provided Industrial Project
Land
The
project land should be furnished with electricity, water resource, communication
facility, close-circuit television, broad band, transportation system, sewer
system, rain water supply, and be leveled. There shall be no barricades, such as
public overhead line, within the project construction area.
Article
5 Supporting Municipal Facilities and Related
Conditions
1、Facilities such as
electricity, water resource, communication facility, close-circuit television,
broad band, transportation system, sewer system, rain water supply, etc. shall
be furnished within the whole project area so as to meet the needs of Party B,
and all the rendered costs shall be undertaken by Party A.
2、Party A guarantees
that the water, electricity and gas supply will meet the demands of Party B.
Party B shall inform Party A of the water and electricity load (in written
format) _____days after signing the Contract (basically in line with the
feasibility report). All the opening costs, including those of water,
electricity, natural gas, fuel gas, steam supply, communication facility,
close-circuit television, broad band, etc. shall be undertaken by Party
A.
3、Actively
coordinate the resolution of Party B's request in rail transport.
4、Party A shall
provide enough electricity and water resources for Party B’s use based on the
prices of those for large-scale industrial production purpose.
Section
3 Cost for the Land Transfer and Payment Terms
Article
6 Cost of Land Transfer
The
Project land is obtained by Party B through the process of tender, auction or
public listing. The cost of land transfer will be charged based on the actual
auction price. The costs include all the administrative expenses in relation to
the land to meet all the prerequisites for commencing construction and the
related land development cost and compensation. All the one-time opening costs
involved in the public utilities shall be undertaken by Party A.
Article
7 Payment Terms
Party B
shall pay the cost of land transfer based on the following terms:
1、The industrial
land for the first phase is approximately 512 Mu, and will be transferred
according to the national provisions on tender, auction and public listing.
Security deposit will be paid in accordance with the tendering documents. And
after the land use rights is obtained, the Land Transfer Contract will be then
signed, and cost of land transfer will be settled pursuant to the provisions of
the Land Transfer Contract.
2、The reserved
industrial land is approximately 1,000 Mu (One thousand Mu), and will be
transferred according to the national provisions on tender, auction and public
listing. The cost and payment terms will be the same as provided in Article 7-1.
The land can be put into use after the fulfillment of the first phase investment
of RMB 1,200,000,000 (One and 2/10 billon) and commencing production. Detailed
items should be defined otherwise.
3、The land for the
Research and Development center and staff residence are approximately 40 Mu, and
the cost of land transfer and payment terms will be the same as the Article
7.-1. And the specified land providing date will be negotiated by the two
parties otherwise. Party A shall provide land of 20 Mu (Twenty Mu) for building
the Research & Development center and staff residence each time Party B
completes its production capacity of 100,000 tons (One hundred thousand tons).
Party A guarantees that the land of total 40 Mu (Forty Mu) provided in two
phases are adjacent.
4、Within 10 (ten)
days from the day when Party B settles the relevant cost of land transfer, the
relevant project land licensed under the state-owned land use rights shall be
transferred to Party B by Party A.
Article
8 Delivery of Relevant licenses and Transfer of the
Project Land
After
Party B’s signing of the Land Transfer Contract and settling the cost, Party A
shall assist Party B in the transaction of the state-owned land use rights
certificate without any right to mortgage or other rights, in the name of Party
B, the land use rights owner, within 30 (thirty) days from the day Party B
settles the cost. Party A shall guarantee Party B that no third party shall be
entitled to the land use rights.
Section
4 Preferential Policies
Article
9 Party A promises Party B or the project company
registered by Party B that it will not only enjoy all preferential policies
specified in this Investment Contract, but also enjoy the tax preference, fiscal
subsidies of the state, province, city and Hanshan County. In addition, parts of
Administrative and Institutional fees are not charged.
Party A
further promises to assist the project company to carry out the preferential
policies that are enacted by the state, province, city or Hanshan County at
times in future and adjusted or modified to apply to the project company in
every respect.
Article 10 If
Party B establishes other new registered companies on the project land and
begins the production and operation, or if Party B leases parts of its buildings
to other registered companies for operations, and the project relates to the
industry and high-tech products of Party B and the Industrial and Commercial and
tax registrations are made in Hanshan County, the new company shall enjoy all
preferential policies specified in the aforesaid Article 9.
Section
5 Responsibilities and Obligations of Both Parties
(Ⅰ) The
responsibilities and obligations of Party B
Article
11 After approvals received, funds shall be invested
into the project according to the specified terms for project construction and
the construction shall be completed on schedule and put into production; Party B
must invest on schedule; If Party B is not able to invest according to the
schedule at any phase due to any reason, Party A shall provide Party B with a
grace period of three months. If the investment is still not executed within the
three months grace period, Party A shall issue a written notice before the
expiration day requiring Party B to execute the investment. If the investment is
still not able to be executed within fifteen days beginning from the notice day,
Party A is entitled to take back the unused land and limestone, but with
limitation to the land and limestone which are not paid by Party B.
Article
12 The construction of the project must meet
environmental and safety requirements. After the operation starts, Party B shall
operate complying with laws and regulations, produce in accordance with safety
standards, and pay taxes according to regulations.
Article
13 The project investment must reach the investment
level of Hanshan industrial park set by the state i.e. the investment shall not
be less than RMB 1,200,000 / Mu (One and 2/10 million/ Mu).
Article 14 The reserved land
of 1,000 (One thousand) Mu shall be provided to Party B for use once the first
phase investment of RMB 1,200,000,000 (One and 2/10 billion) is fulfilled and
put into production in accordance with the local planning and industrial
investment level, otherwise the land shall not be provided. The provided
limestone shall and only be used for the production of NPCC in Hanshan,
otherwise Party A is entitled to terminate the Contract and take back the
limestone. The loss rendered hereby shall be assumed by Party B.
(Ⅱ) The
responsibilities and obligations of Party A
Article 15 Party A will assist
Party B to process any procedures and formalities on company establishment, such
as the project’s examination and approval, business license, tax registration
and bank account opening, and go through other formalities such as planning
report and approval, environmental protection, infrastructure construction and
project completion (including but not limited to the check and acceptance for
fire protection, the environmental impact review, the construction land use
permit, the planning permit of construction engineering, the housing (starting)
permit of construction engineering, filing records of the assessment and
acceptance of completed housing project and registration), and will provide
Party B with all types of basic data and information for the planning and design
of the construction.
Article
16 Party A commits to make the project land entirely
following the conditions of the project startup specified in this Contract
within 60 days after Party B has received the state-owned land use
certificate.
Article 17 In
order to help Party B invite and arrange technology and management personnel,
Party A should provide certain living convenience. In addition, according to the
request of Party B or the project company of Party B, Party A should provide
land for Research & Development and real estate of no less than 40 Mu (Forty
Mu) with full set of facilities, and the land will be obtained by Party B
through the process of tender, auction and public listing and built in
accordance with the local planning conditions. In addition, based on the
investment scale of Party B, when the scale is larger than 200,000 tons (Two
hundred thousand)/ year, similar land of 20 Mu (Twenty) shall be added with the
proximity of the land slot of 40 Mu (Forty) for every additional 100,000 tons
(One hundred thousand)/ year.
Article 18 If
Party A does not handle the state-owned land use certificate for Party B in the
prescribed period of Article 8 hereof, or if Party A does not deliver the
corresponding project land to Party B in the prescribed period of Article 15
hereof, which causes delay in Party B’s obtaining the state-owned land use
certificate or possessing the project land under this Contract, Party A should
pay Party B a penalty amounting to 0.1% of the land grant fee paid by Party B
for each delayed day until Party B obtains the state-owned land use certificate
or the project land. Party B has the right to dissolve this Investment Contract
in the case that Party A delays handling the state-owned land use certificate or
delivering the project land, and the delayed time exceeds more than 6 months of
the time specified in this Contract. Party A should return the full land grant
fee and other land payments to Party B, and make compensation for all losses
caused by the breaching actions of Party A.
Article 19 If the
project land does not have all of the conditions of project startup in position
within the period specified in Article 15 hereof due to Party A, Party A should
provide the written statement to explain the delay and plan of having conditions
of startup within 30 days before the appointed time and obtain Party B’s
approval.
If Party
B does not obtain the construction permit due to Party A, and if the
construction conditions of the project land do not meet the conditions for Party
B’s necessary requirements according to this Contract which causes delay of
Party B’s starting of construction, Party A should pay a penalty amounting to
0.2% of the grant land fee hereunder until Party A fulfills all the necessary
conditions specified in Article 5 hereof. If the necessary construction
conditions do not meet the construction requirements of Party B according to
Article 5 hereof due to Party A and at the same time the delayed time exceeds 6
months of the time specified herein, Party B reserves the right to dissolve this
Contract and Party A shall return the full land grant fee and other land
payments paid by Party B and make compensation to Party B for all the losses
caused by the breaching actions of Party A.
Article 20 In
any case, where Party B fulfills the Contract and put into production on
schedule (including the time period based on the grace period), if Party A
cannot perform the provisions of Item 2 in Article 7, causing Party B to be
unable to obtain the reserved land of 1,000 Mu (One thousand), and/or cannot
perform the provision of Item 3 in Article 7, causing Party B to be unable to
obtain the full furnished staff residential land of no less than 40 Mu (Forty),
Party A is considered to essentially break the Contract, where Party A shall pay
Party B the penalty
of 5% of total cost of lands hereunder. If the aforesaid penalty is not
sufficient to compensate Party B’s actual loss hereby, Party A shall pay for the
actual loss and the penalty of 5% shall still be paid to Party B.
Article
21 Party A commits to coordinate Party B’s relationship
with the local government sectors so as to let the related sectors provide Party
B with high-quality and efficient services in the process of project
development.
1. In the
project’s feasibility study phase, Party A should actively provide all required
basic information such as social, economical and cultural conditions, and
hydrological and geologic conditions of the project land and the surrounding
areas for Party B’s reference free of charge.
If Party
B confirms that any project land under this Contract is not in accordance with
the geologic conditions of NPCC projects initiated by Party B, Party A commits
to select other appropriate land for Party B.
2. From
the date when both Party A and Party B signed this Investment Contract, if any
dispute occurs that is related to the land use, removal, compensation and
settlement for households relocated due to the project land of Party B, Party A
is fully responsible for solving the dispute and Party B shall have no
responsibility and will not pay any expense related to any
dispute.
3. From
the date when both Party A and Party B signed the contract for granting
state-owned land, Party A should make service commitments of management and
provide good outside environment for investment construction, production and
operations, and Party A should establish a coordination service leading group
with the county mayor or deputy county mayor as the group leader and principals
of functional departments as the members. Party A is in charge of the
coordination and management of all administrative and law-enforcement
departments to ensure the smooth implementation of the
construction.
4. During
the period of the project construction of Party B, Party A should ensure a good
construction environment for Party B. If Party B’s construction is affected by
the outside interference due to Party A’s not taking measures or taking
ineffective measures, Party A should find out the facts and responsibilities
timely and eliminate that interference as soon as possible. If economic losses
are not caused by Party B itself, Party A should make full compensation for
Party B.
5. During
and after the construction process, Party A should ensure that related
departments and the general public in the regions administrated by the Hanshan
government do not intervene in the enterprise’s production and operation, and do
not enter the factory to disturb its production and operation in the name of
inspecting (normal legal inspection excluded), reviewing or news reports. Party
A should obtain Party B’s approval in advance if the inspection by superior
leaders and news reports organized by Party A are necessary.
6. In the
construction process, Party A should make sure that the autonomy of inviting
tenders of Party B free of interference by any government sectors, entity or
individual.
7. Land
use boundary of Party B: Subject to the survey and delimitation report, Party B
builds walls in accordance with declared planning and design conditions (to
build walls by the red lines of the project land in light of survey and
delimitation to the side of the road).
Article
22 Party A commits to provide conveniences for the
project management to ensure their children have the equal opportunities of
education with the local residents
Section
6 Force Majeure
Article 23 If
partial or whole failure in executing the Contract is caused by the force
majeure factor, neither party shall be entirely responsible for breach of the
Contract. However, both parties shall take necessary measures to minimize the
losses caused by the force majeure.
Article
24 The party that meets the force majeure should inform
the other party of the conditions of the accident in written form within 48
hours, and submit the report on nonperformance, partial performance or delayed
performance of this Contract and the proofs of this force majeure incident
issued by related authorities to the other party within 10 days after the
incident.
Section
7 Notice
Article
25 Any notice or communication required or allowable
hereby is considered to be delivered to its destination actually at the time of
receival without regard to its method of delivery.
Section
8 Applicable laws and Solution of Disputes
Article
26 The establishment, effectiveness, explanation,
performance and solution of disputes hereunder shall apply the laws of the
People’s Republic of China.
Article
27 Any dispute caused in the process of performing this
Contract shall be solved through friendly negotiation between the two parties.
For dispute or disputes that cannot be solved through negotiation, either party
can apply for arbitration in the Beijing Arbitration Commission. The verdict is
final and is legally binding on both parties.
Section
9 Confidentiality
Article
28 Without the written consent of the other party
hereto, neither party shall disclose business or technology secrets or other
secrets obtained from performing this Contract to the third party, unless the
disclosure is made pursuant to mandatory disclosure requirements of related
rules and regulations (including but not limited to disclosures made by the
listed company according to mandatory requirements of rules and regulations in
the listing place). If any party breaches this provision of disclosure, the
breaching party should be responsible for it and pay a penalty amounting to RMB
5 million (Five million) to the corresponding party.
Section
10 Supplementary Articles
Article
29 Any supplementary article, appendix and related
document attached hereto are indivisible parts hereof and have the same
effectiveness with this Contract. The open items of this Contract can be
supplemented through the negotiation of both parties. This Contract can be
terminated or renewed if both parties negotiate and unanimously
agree.
Article
30 Party B reserves the right to arrange other domestic
or foreign corporations as the investment subjects to establish a project
company by investing directly or by merging and changing according to specific
conditions.
No matter
if the project company is established by Party B or by the aforesaid other
domestic or foreign corporations by way of investing directly or merging and
changing, Party B reserves the right to transfer all rights and obligations that
Party B should undertake hereunder to the project company without Party A’s
prior consent.
Article 31 Party A
ensures that in the administrative regions governed by Party A, it will not
introduce or set up any NPCC production project and enterprise (including all
enterprises whose key raw material is limestone and key ingredient of end
products are NPCC powders and sizing agents) other than Party B or the related
party of Party B, and it will not examine and approve the enterprises and
projects of this kind and will not go through the related formalities such as
registration. If Party A breaches this article to introduce any project in the
aforesaid range, it should pay Party B a penalty amounting to 50% of the total
investment hereunder and the total investment should be subject to the audit
report issued by a well-known, international accounting firm.
Article
32 The Contract has the legal effectiveness upon Party
B, other domestic or foreign enterprise arranged by Party B as the investment
subject, and the project company especially established for the
project.
Article
33 Party B shall make project investments in accordance
with the Contract and is entitled to the financial support policy issued by
Party A. If the related policy has been adjusted, the adjusted preferential
policy is applied.
Article
34 This Investment Contract is in quadruplicate, and
each party holds two copies, which come into effect after the signing and
sealing by the legal representatives of both parties (representatives) or by
authorized representatives.
|
Party
A:
|
Party
B:
|
|
(Seal)
|
(Seal)
|
|
Representative
or authorized
representative
(Sign):
|
Legal
representative or authorized
representative
(Sign):
|
|
Date:
|
Date
|
Place of Signing: China
Supplemental
Agreement
Party
A：
Party
B：
Based on
the project investment contract signed on
M D___ Y ___by Party A and Party B, in the principle of
good faith cooperation, equality and mutual benefit, common development, Party A
and Party B enter into the supplemental agreement on matters not
covered:
1、Party A shall
assist Party B to register the company in Hanshan industrial park and transact
relevant procedures to promote the project progress.
2、After Party B has
paid off the land grant fee according to Article 8 hereof, Party A shall assist
Party B in proceeding with land use right certificates for this industrial land
area and real estate land area in the name of the project company at the same
time the project company as the land use right user does not have to take any
mortgage or any other obligations, and the land use right shall not be recourse
by any third party.
3、Party B shall pay
the limestone resource at the listed price of RMB 0.4/ton. As to the exceeding
part of the price, Party A shall make full-payout within seven working days to
Party B in the means of financial support. The forestry fee and land charges
incurred by Party B when proceeding with the mining right procedure shall be
compensated by Party A.
4. The
land originally owned by CNST of 100 Mu (One hundred) shall be transferred to
Party B with the coordination of Party A with relevant authorities.
4、As to the mine and
equity originally owned by CNST, within two months after Party B pay for the
cost of equity transfer hereunder, Party A shall guarantee Party A with the
mining rights certificate of no less than 30 years in the form of legal transfer
by coordinating, and all the cost incurred shall be assumed by Party A (agency
fee excluded).
6. Legal
Title certificates to the property originally owned by CNST shall be transferred
to Party B within two months after completing equity transfer with the
coordination of Party A with relevant authorities, and all incurred costs shall
be assumed by Party A (agency fee excluded).
7. Party
B shall complete the investment on schedule (including the time period grant by
the grace period). The detailed schedule is as follows:
By
the end of October 2010, fulfill the investment of RMB 350,000,000 (Three
hundred fifty million), and complete the construction of the production capacity
of 40,000 tons (Forty thousand);
By
the end of November 2011, fulfill the accumulative investment of RMB 630,000,000
(Six hundred thirty million), and complete the construction of the production
capacity of 100,000 tons (One hundred thousand tons);
By
the end of January 2013, fulfill the accumulative investment of RMB
1,200,000,000 (One and 2/10 billion), and complete the construction of the
production capacity of 200,000 tons (Two hundred thousand tons)
8、Finance taxation subsidy
policy
（1）Corporate income
tax
From the
profit-generating year, the local government shall give the company funding
support in the following way: for the first three years, all the
local retention of enterprise income tax funds shall be returned to the company
as funding support; from the forth year to the sixth
year, the local government shall return 50% of the local retention of
enterprise income tax funds to the company as funding support. For each
production line invested, the tax rate shall be calculated in this way and will
enjoy this policy.
（2）Value Added
Tax
Upon the
date of the beginning of production, for the first three years, 25% of the total VAT
funds that the company paid shall be returned as funding support; from the forth
year to the sixth year, 12.5% of the total
VAT funds that the company paid shall be returned as funding
support.
（3）Business
tax
Upon the
date of the beginning of production, for the first three years, all the
local retention of business tax funds that this production line paid shall be
returned to the company as funding support; from the forth year to the sixth
year, 50% of the local retention of business tax funds that this
production line paid shall be returned to the company as funding
support.
（4）Land deed
tax
The land
deed tax is to be 4% of the land
transaction price, all the tax for land paid by the company shall be returned to
the company as funding support.
（5）Land use
tax
For each
land area, when the land certificate is transacted, 100% of the first three
years of land use tax paid by the company shall be returned as funding support.
In the forth to sixth years, 50% will be provided to Party B annually for
support.
（6）The Hanshan
government shall coordinate not to charge Party B for some administration
related fees, excluding any necessary portion. (Details please refer to the
schedule listed as the Attachment 1 herof).
（7）The high-level
professionals employed by Party B shall enjoy all the preferential policies of
Hanshan County’s Talent Introduction Policy. Party A shall provide support such
as housing, living allowance etc. The housing for Party B’s executives and other
high-level personnel shall be resolved through marketing operations conducted by
Party A.
（8）Real estate
project for staff residence shall not enjoy other financial support policy
except for the favorable land price.
(9) All
land tax preference policies are issued to Party B in the form of financial
supporting funds after collecting from Party B to support Party B’s project
construction.
（10) Provided Party
B cannot fulfill the required investment on schedule, Party A shall reserve the
right to take back the dormant land, mine, preferential policy and financial
supporting policy in accordance with the provisions specified in Article 11 of
the Contract..
（11) Appendix
describing the applicable national and local tax categories, tax rate and all
kinds of tax preferences and enjoyable years for this NPCC project under the
Hanshan County NPCC Project
Investment Contract shall be listed as Attachment 2 of this Supplemental
Agreement.
9、This Supplemental Agreement and
its appendixes are inalienable constituents of the Hanshan County NPCC project
investment contract and shall have the same legal force with “ Project
Investment Contract.
10、This
Supplemental Agreement shall be effective when signed and sealed by legal
representatives of the both parties and is in quadruplicate, two copies for each
party.
Party
A:
(Seal)
Representative
or Authorized Representative (Signature):
Date:
Party
B:
(Seal)
Representative
or Authorized Representative (Signature):
Date:
Agreement
Signing Place: China
