FORM 8-K Exhibit 10.1
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TRT PROJECT JOINT-OPERATION AGREEMENT
THIS JOINT-OPERATION AGREEMENT (hereinafter "Agreement"), is made and entered
into as of this First day of February, 2007, subject to the approval by Board of
Directors of both Parties and their mother companies if applicable, by and
between:
Shanghai TCH Data Technology Co. Ltd. ("TCH"), a company duly organized and
existing under the laws of the People's Republic of China and having its
principal executive office at Xxxxx 000, Xx.000, Xxxx Xxxxxxx Xxxx, Xxxxxx New
District, Shanghai, People's Republic of China;
And
Xi'an Yingfeng Science and Technology Co., Ltd. ( "Yingfeng"), a company duly
organized and existing under the laws of the People's Republic of China and
having its principal executive office at Xxxxx'an Xxxxxxxxxxxxx Xxxxxx, Xxxxx X,
Xxxx 000, Xx. 00, Xxx-Xxxx-Xxxxx Xxxxxx, Xx'xx Xxxx, Xxxxxxx Xxxxxxxx, People's
Republic of China, Postal Code: 710068;
(TCH and Yingfeng shall individually be referred to as a "Party", and
collectively as the "Parties".)
WITNESSETH:
WHEREAS, Both Parties are duly organized under the applicable laws and
regulations and have full authority and power to negotiate, enter and execute
business contracts and agreements; and
WHEREAS, Both Parities have experiences and expertise in designing, constructing
and operating top gas recovery turbine systems ("TRT"); and
WHEREAS, On September 26, 2006, Yingfeng entered the "Contract To Design and
Construct TRT Project" ("Project Contract") with Xingtai Iron and Steel
Company.,Ltd. ("Xingtai") to design and construct a TRT system for Xingtai
(Please see Exhibit A to this Agreement or Exhibit 10.2 to this Form 8-K for the
full text of the Project Contract between Yingfeng and Xingtai); and
WHEREAS, Yingfeng and TCH would jointly pursue the TRT Project specified in the
aforementioned Project Contract. TCH would provide the necessary investment and
properties including cash, hardware, software, major components, and equipments;
Yingfeng would provide the expertise, skills and manpower in designing,
installation, maintenance and operation of the TRT system; and
NOW, THEREFORE, intending to be bound, the Parties hereto agree as follows:
ARTICLE 1. RIGHTS AND OBLIGATIONS
SECTION 1.01.
TCH and Yingfeng agree to jointly pursue the project of designing,
constructing, installing, maintaining and operating TRT system for Xingtai
("Joint Project").
SECTION 1.02 The Rights and Obligations of TCH.
TCH provide the investment and properties in the TRT Project, including
cash, hardware, software, equipments, components, and devices that are set forth
in the Project Contract as necessary and needed in constructing and operating
the TRT system. The detailed list of the hardware, software, equipments,
components, and devices to be invested by TCH will be presented in the "Property
Item List" recognized and confirmed by both Parties. The Property Item List will
be prepared by TCH and submitted for approval by both Parties prior to the
actual construction and installation of the TRT system. The items listed in the
Property Item List will include, but no limited to, tangible and intangible
properties.
TCH shall also:
(1) Remain in possession of the titles to the investment and properties
such as hardware, software, equipments, components, and devices
invested by TCH in the Joint Project, which are listed in the
"Property Item List". TCH also has the right to transfer and divide
the aforementioned properties.
(2) Have all the rights, titles, benefits and interests that Yingfeng
originally had under the Project Contract including the payment made
by Xingtai for the TRT system and other property rights and interests
specified in the Project Contract, except for those rights, titles,
benefits and interests set forth in Section 1.03 of this Agreement.
(3) Have the right to monitor and oversee Yingfeng's conducts in
designing, constructing, installing, maintaining and operating the TRT
system.
(4) Have the ownership of all the patents and intellectual property rights
that developed by Yingfeng in its course of pursuing the Joint
Project.
(5) May terminate this Agreement if TCH obtains all the necessary Chinese
governmental approval and certifications required for pursuing TRT
projects independently.
(6) Bear the risk of loss or damage to the properties and capital invested
by TCH in the Joint Project.
(7) Make monthly payment of Thirty Thousand RMB Yuan (RMB (Y) 30,000.00)
to Yingfeng as the compensation for Yingfeng's efforts in managing
TCH's properties in the Joint Project.
(8) Reimburse Yingfeng for the costs and expenses incurred in the regular
maintenance and operation of the Joint Project within one week after
receiving the expense invoice from Yingfeng.
TCH shall not be required or obligated in any manner to observe, perform or
fulfill any of the conditions or obligations in the Project Contract that are
not specifically imposed on TCH by this Section.
SECTION 1.03. The Rights and Obligations of Yingfeng.
Yingfeng provides the technical and engineer team, expertise, skills, and
all the manpower to design, construct, install, maintain and operate the TRT
system specified in the Project Contract.
Yingfeng shall:
(1) Undertake necessary steps and measures in maintaining and upgrading
the TRT system upon the written consent of TCH.
(2) Enter and execute supplemental agreements and contracts with Xingtai
for purpose of carrying out the Joint Project.
(3) Exercise the right and power to designate or remove the personnel on
the work positions in the Joint Project, choose the component
suppliers and vendors and take other actions necessary to carry out
the Joint Project.
(4) Maintain the intactness and safety of the properties that TCH invests
and owns in the Joint Project and make reasonable efforts to maintain
and manage the properties invested and owned by TCH in the Joint
Project.
(5) Have the entitlement to the monthly payment of Thirty Thousand RMB
Yuan (RMB (Y) 30,000.00) made by TCH, as compensation for Yingfeng's
efforts in managing TCH's properties in the Joint Project.
(6) Have the rights to be reimbursed by TCH for the cost and expenses
incurred in the regular maintenance and operation of the Joint Project
within one week after TCH received the expense invoice from Yingfeng.
(7) Refrain from assigning, delegating, or transfering any of the
obligations or rights set forth in this Agreement without TCH's
express consent.
(8) Transmit to TCH all the payments made by Xingtai for the TRT system
pursuant to the Project Contract within Two (2) days after receiving
them from Xingtai if Xingtai directly wires the payments to Yingfeng's
account.
(9) Provide to TCH a detailed status report of the Joint Project without
concealing or misrepresent any material fact or incident.
(10) Coordinate and address all the issues involving Xingtai in the pursuit
of the Joint Project, such as issues regarding suppliers and vendors,
etc.
(11) Pay the tax associated with the Joint Project.
Yingfeng also remains fully liable under the Project Contract to observe,
perform and fulfill all other conditions and obligations in the Project Contract
that are not listed above and are not imposed on TCH by Section 1.02 of this
Agreement.
ARTICLE 2. REPRESENTATIONS AND WARRANTIES
SECTION 2.01.
TCH hereby represents, warrants, and agrees that:
(1) It is duly organized under the applicable laws and regulation;
(2) It is in good standing;
(3) It has all the necessary power, right and authorization to enter and
execute this Agreement.
SECTION 2.02.
Yingfeng hereby also represents, warrants and agrees that the Project
Contract are in full force and effect. Yingfeng further represents, warrants,
and agrees that:
(1) It is duly organized under the applicable laws and regulation;
(2) It is in good standing;
(3) It has all the necessary power, right and authorization to enter and
execute this Agreement.
ARTICLE 3. TERM AND TERMINATION
SECTION 3.01.Term.
This Agreement and the Joint Project will become fully effective upon the
final approval by the Board of Directors of both Parties and will continue in
effect thereafter until February 01, 2012, unless otherwise terminated pursuant
to Section 3.02 of this Agreement. Both Parties may take certain preliminary
actions to make preparation for the Joint Project prior to the final approval by
the Board, including selecting and purchasing necessary components and software
for TRT system, organizing and training the technician team for the Joint
Project and developing the construction and installation plan for the TRT
system.
SECTION 3.02. Termination.
This Agreement may be terminated as follows:
(1) In the event that Yingfeng fails to perform its obligation to transmit
the payments to TCH as required in Section 1.03(8) of this Agreement, causing
TCH material loss, and fails to make any remedy within two months after receipt
of written notice from TCH specifying such failure, Yingfeng is deemed in
material breach of this Agreement and TCH may choose to terminate this Agreement
by notifying Yingfeng in writing and Yingfeng shall be liable for all the
damages caused by its breach.
(2) In the event that TCH fails to perform its obligation to make the
payment to Yingfeng as required in Section 1.02(7) of this Agreement, causing
Yingfeng material loss, and fails to make any remedy within two months after
receipt of written notice from Yingfeng specifying such failure, TCH is deemed
in material breach of this Agreement and Yingfeng may choose to terminate this
Agreement by notifying TCH in writing and TCH shall be liable for all the
damages caused by its breach.
(3) In the event that either Party fails in any material respect to observe
or perform its obligations under this Agreement, which failure is not remedied
in a reasonable time, after receipt of written notice from the other Party
specifying such failure, this Agreement shall automatically terminate.
(4) Either Party may, at its option, terminate this Agreement without
cause, effective at any time after the date first written above, upon giving at
least Thirty (30) days prior written notice of such termination to the other
Party.
(5) Upon the completion of the Term set forth in Section 3.01 of this
Agreement.
SECTION 3.03. Force Majeure.
Notwithstanding any other provision of this Agreement, if either TCH or
Yingfeng is delayed in or prevented from fulfilling any of its obligations
hereunder by reason of any cause beyond its reasonable control (including, but
not limited to acts of God, fire, third party strike, flood, delay of
transportation or inability to obtain necessary raw materials through normal
commercial channels), then that party will not be liable under this Agreement
for damages resulting from such delay or failure. Each Party will promptly
notify the other upon becoming aware of the occurrence of any such cause and
will use its reasonable best efforts to minimize any resulting delay in or
interference with the performance of its obligations hereunder.
ARTCLE 4. MISCLEANOUS MATTERS
SECTION 4.01. Confidential Information and Publicity.
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From time to time during the term of this Agreement either Party may
disclose or make available to the other Confidential Information in connection
with activities contemplated hereunder. Except as may be required by law or as
may be reasonably necessary to enforce rights hereunder, each Party agrees that
during the term of this Agreement and thereafter (a) it will use Confidential
Information belonging to the other solely for the purpose(s) of this Agreement
and (b) it will not disclose Confidential Information belonging to the other to
any third party without the express prior written consent of the disclosing
party. Each party further agrees that except as reasonably necessary for
performance hereunder or otherwise expressly required by law, it will not
publicly announce or otherwise disclose any of the terms and conditions of this
Agreement without the express prior written consent of the other.
SECTION 4.02. Governing Law; Successors and Assigns.
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This Agreement shall be governed and construed in accordance with the laws
of the People's Republic of China and shall be binding upon the heirs, personal
representatives, executors, administrators, successors and assigns of the
Parties
SECTION 4.03. Entire Agreement.
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This Agreement constitutes the entire agreement of the Parties with respect
to the subject matter hereof and supersedes and replaces any prior agreement or
understanding between the Parties with respect to the Assignment. No changes,
alterations or modifications hereto shall be effective unless made in writing
and signed by all the Parties.
SECTION 4.04. Headings and Counterparts.
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The headings of the Sections of this Agreement are for convenience and
shall not by themselves determine the interpretation of this Agreement. This
Agreement may be executed in any number of counterpart copies, all of which
copies shall constitute one and the same instrument.
SECTION 4.05. Independent Counsel.
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The Parties each acknowledges that this Agreement has been prepared on
behalf of TCH by Xxxxxxx & Yam, LLP, counsel to TCH, and that Xxxxxxx & Yam, LLP
is not representing, and is not acting on behalf of, Yingfeng in connection with
this Agreement. Yingfeng has been provided with an opportunity to consult with
its own counsel and its own business, securities and tax advisors with respect
to this Agreement.
IN WITNESS WHEREOF, the Parties hereto have signed this Agreement as of the
date first above written.
SIGNATURE
By:
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/s/Hanqiao Zheng
Hanqiao Zheng
Shanghai TCH Data Technology Co., Ltd.
By:
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/s/Geyun Wang
Geyun Xxxx
Xx'an Yingfeng Science and Technology Co., Ltd.
