AMENDED AND RESTATED BINDING LETTER OF INTENT
AMENDED
AND RESTATED
THIS BINDING LETTER OF INTENT,
hereinafter referred to as the “LOI”, is entered into by and,
|
AMONG:
|
NORDIC TURBINES, INC., a
Nevada corporation having an office at 0000 Xxxxxxxx Xxxx #000,
Xxxxxxxxxxx, Xxxxxxxxxxxxx XXX 00000-0000
|
| (“COMPANY”) | |
|
AND:
|
LUCKCHARM HOLDINGS LIMITED,
a Hong Kong company having an office at Flat/Room 703, Xxx Xxx
Comm. Building, 359-361 Queen’s Road Central, Hong
Kong
|
|
|
(“LUCKCHARM”)
|
|
AND:
|
WUHAN GUOCE NORDIC NEW ENERGY
CO. LTD, a People’s Republic of China company having an office at
Xx. 00, Xxxxx Xxxxxx, Xxxx Xxxx Xxxxxxxxxxx Xxxx, Xxxxx,
Xxxxx
|
| (“GC NORDIC”) |
|
AND:
|
NEWMARGIN GROWTH FUND L.P.,
having an office at Xxxxx 0, Xxxxxxxx Xxxxx 00 Xxxx Xxx Xxxx,
Xxxxxxxx, Xxxxx
|
(“NEWMARGIN”)
|
AND:
|
CEYUAN VENTURES II,
L.P.,
having an office at Xx.00, Xxxxxx Xxxxxx, Xxxxxxxxx Xxxxxxxx,
Xxxxxxx, Xxxxx
|
(“CEYUAN LP”)
|
AND:
|
CEYUAN VENTURES ADVISORS FUND
II, LLC.,
having an office at Xx.00, Xxxxxx Xxxxxx, Xxxxxxxxx Xxxxxxxx,
Xxxxxxx, Xxxxx
|
(“CEYUAN ADVISORS”, and together with
Ceyuan LP, “CEYUAN”)
WHEREAS the Company, GC
Nordic, Luckcharm and NewMargin entered into that certain binding letter of
intent dated July 24, 2009 (“Original LOI”), and the
Company, GC Nordic, Luckcharm and NewMargin desire to amend and restate such
Original LOI in its entirety to include additional parties as set forth
herein.
WHEREAS the Company wishes to
acquire GC Nordic and believes GC Nordic to have a valuable existing business
focusing on the production of electrical generation turbines.
AND WHEREAS the Company,
Luckcharm and GC Nordic wish to enter into a merger transaction whereby the
Company or a wholly-owned subsidiary of the Company would purchase all of the
issued and outstanding shares of Luckcharm in exchange for the issuance to the
shareholders of Luckcharm of 54% of the ownership interest in the Company (on a
post-Closing basis).
AND WHEREAS the parties wish
to enter into this Binding Letter of Intent which states that, upon completion
of the conditions as set forth herein and in a formal, definitive agreement or
other transaction structure, the Company or a wholly-owned subsidiary of the
Company will acquire 100% of the ownership interest in Luckcharm and GC
Nordic.
NOW, THEREFORE, in
consideration of $10.00 and other good and valuable consideration, the parties
agree as follows:
|
1.
|
The
Company has made a loan of USD $2,500,000 to Luckcharm on or before the
date of execution of this LOI.
|
|
2.
|
This LOI constitutes a binding agreement with regard to the
various matters set forth herein and shall become effective with
respect to Paragraphs 3-9 only upon the date the Company makes an additional loan of USD
$7,500,000 to Luckcharm.
|
|
3.
|
The
Company, Luckcharm and GC Nordic agree that they will enter into a
definitive agreement containing substantially the same terms and
provisions as set forth in Paragraphs 3-9 of this LOI within thirty (30)
days from the date of execution of this LOI (the “Definitive
Agreement”).
|
|
4.
|
Upon
the satisfaction of the conditions set forth herein and in the Definitive
Agreement, the Company or its wholly-owned subsidiary shall acquire all of
the issued and outstanding capital stock of Luckcharm in exchange for the
issuance of shares of common stock of the Company to the shareholders of
Luckcharm, which will represent a fifty four percent (54%) ownership
interest in the Company post-Closing (the “Merger”). Additionally,
upon consummation of the Merger, the Company shall directly or indirectly
own all of the outstanding capital stock of GC
Nordic.
|
|
5.
|
The
parties agree that in the event GC Nordic enters into a corporate
restructuring, the terms and conditions of this LOI shall be construed
broadly to meet the intent of the parties hereto. It is the
understanding of both parties that GC Nordic intends to restructure itself
such that all of its issued and outstanding capital stock is owned by
Luckcharm. As such, the Merger shall occur between the Company
or a wholly-owned subsidiary of the Company, Luckcharm and GC
Nordic.
|
|
6.
|
The
closing of the Merger (the “Closing”) shall occur as
promptly as practicable, but in all events on or before the date that is
thirty (30) days from the date on which GC Nordic completes the audit of
its financial statements as required to be filed by the Company upon the
Closing in accordance with the Securities Exchange Act of 1934, as
amended.
|
2
|
7.
|
The
obligation of GC Nordic to consummate the Merger is conditioned upon a
financing in the amount of USD $10,000,000 into the merged entity at
Closing, of which at least $1,000,000 or any other amount agreed upon by
Clarus Capital Ltd. and GC Nordic, shall be invested by Clarus Capital
Ltd. or one of its affiliates.
|
|
8.
|
The
Definitive Agreement shall contain customary representation and
warranties, covenants and indemnification provisions and as previously set
forth in that certain letter of intent between the Company and GC Nordic
dated May 22, 2009. For the avoidance of doubt, in the event of
any conflicts between this LOI and that prior letter of intent, the terms
and conditions of this LOI shall
control.
|
|
9.
|
In consideration of the time and
effort the
Company will incur to
pursue this transaction, each of Luckcharm and GC Nordic agrees that, from the date of
execution of this LOI (or, if sooner, until
such time as the
parties agree in writing to terminate this LOI) until the Closing, neither Luckcharm, GC Nordic nor their shareholders nor any person or
entity acting on
their behalf will in any way directly or indirectly (i) solicit, initiate,
encourage or facilitate any offer to purchase
Luckcharm or
GC Nordic or any of their assets or equity, (ii) enter into
any discussions, negotiations or agreements with any person or entity
which provide for such purchase, or (iii) provide to any persons other
than the Company or its representatives any
information or data
related to such purchase or afford access to the properties, books or
records of Luckcharm and GC Nordic to any such persons. Luckcharm and GC Nordic will promptly notify the Company of any inquiry or proposal received by Luckcharm or GC Nordic, their shareholders or their representatives offering to
purchase Luckcharm,
GC Nordic or any part of their assets or equity. The restrictions set forth in this
Paragraph 9 shall not apply to any solicitation, offer, agreement or discussions
between Luckcharm and GC Nordic relating to the restructuring outlined in
Paragraph 5 above.
|
|
10.
|
Pursuant
to that certain agreement between the parties hereto dated July 31, 2009,
NewMargin made a loan of USD $2,500,000 to the Company prior to July 24,
2009 and NewMargin will make a loan of USD $2,500,000 to the Company on
July 31, 2009, and Ceyuan will make aggregate loans totaling USD
$5,000,000 to the Company on July 31, 2009 (the “Financing Agreement”).
Upon the Closing, such aggregate loan amounts shall be converted into
shares of common stock of the Company at $0.80 per share. In the event the
parties hereto fail to consummate the Merger, then the parties shall
undertake such additional action and execute any necessary documents to
ensure that such aggregate loan amounts are converted into equity of GC
Nordic as set forth in the Financing
Agreement.
|
|
11.
|
No
party hereto will make any disclosure or public announcements of the
proposed transactions, the LOI or the terms thereof without the prior
knowledge of the other parties, which shall not be unreasonably withheld,
or except as required by relevant securities laws; provided, however, the
Company may issue press releases in the ordinary course of business but
will make no reference to the parties hereto unless their prior written
consent is received.
|
3
|
12.
|
Each
party agrees and acknowledges that such party and its directors, officers,
employees, agents and representatives will disclose business information
and information about the proposed transaction in the course of securing
financings for the Company, Luckcharm and GC Nordic and that the parties
and their representatives may be required to disclose that information
under the continuous disclosure requirements of the Securities Exchange
Act of 1934.
|
|
13.
|
This
LOI shall be construed in accordance with, and governed by, the laws of
the State of Nevada, and each party separately and unconditionally
subjects to the jurisdiction of any court of competent authority in the
State of Nevada, and the rules and regulations thereof, for all purposes
related to this agreement and/or their respective performance
hereunder.
|
|
14.
|
The
parties shall prepare, execute and file any and all documents necessary to
comply with all applicable federal and state securities laws, rules and
regulations in any jurisdiction where they are required to do
so.
|
|
15.
|
If
any term or provision hereof shall be held illegal or invalid, this LOI
shall be construed and enforced as if such illegal or invalid term or
provision had not been contained
herein.
|
|
16.
|
All
references to currency in this LOI are references to the lawful currency
of the United States of America.
|
|
17.
|
This LOI may be executed in counterparts,
by original or facsimile signature, with the same effect as if the
signatures to each such counterpart were upon a single
instrument; and each counterpart shall be enforceable against the
party actually executing such
counterpart. All counterparts shall be deemed an original
copy.
|
|
18.
|
The delay or failure of a party to
enforce at any time any provision of this LOI shall in no way be considered a
waiver of any such provision, or any other provision of this LOI. No waiver of, delay
or failure to enforce any provision of this LOI shall in any way be considered a
continuing waiver or be construed as a subsequent waiver of any such
provision, or any other provision of this LOI.
|
|
19.
|
This LOI supersedes, amend and
restates in its entirety the terms and conditions under the Original
LOI.
|
|
4
| DATED EFFECTIVE JULY 31, 2009 | ||||
| NORDIC TURBINES, INC. | ||||
|
/s/
Xxxxxx Xxxx
|
|
|||
|
|
|
|||
|
|
|
|||
| LUCKCHARM HOLDINGS LIMITED | ||||
| /s/ Authorized Signatory | ||||
| WUHAN GC NORDIC NEW ENERGY LTD. | ||||
| /s/ Authorized Signatory | ||||
| NEWMARGIN GROWTH FUND L.P. | ||||
| /s/ Authorized Signatory | ||||
| CEYUAN VENTURES, II, L.P. | ||||
| /s/ Authorized Signatory | ||||
| CEYUAN VENTURES ADVISORS FUND II, LLC | ||||
| /s/ Authorized Signatory |
5
