COOPERATION AGREEMENT BETWEEN
BETWEEN
UNITED
STATES RENEWABLE ENERGY GROUP, LLC
AND
Dated
as of November 16, 2009
This is a
Cooperation Agreement (this "Agreement")
between United States Renewable Energy Group, LLC, a Delaware limited
liability company ("USREG"),
and A-Power Energy Generation Systems, Ltd., a British Virgin Islands
company ("A-Power"),
dated as of November 16, 2009 (each, a “Party”
and collectively, the “Parties”).
RECITALS
A. Affiliates
of USREG and A-Power have entered into a Joint Development Framework Agreement,
dated as of October 29, 2009, in connection with the potential creation of a
joint venture that will design, develop, manage and operate one of the world's
premier wind energy power plants to be located in west Texas with an eventual
capacity of approximately 600MW, pursuant to which each Party expects to
benefit.
B. A-Power,
through its affiliates, desires to develop and provide wind turbines, equipment
and construction and maintenance services to additional wind energy projects in
the United States.
C. The
above referenced wind energy projects will benefit from positive trends in the
renewable energy industry, including the economic efficiency and acceleration of
A-Power’s
developments in the wind turbine technology that make renewable energy
generation increasingly reliable and competitive.
D. A-Power,
through its affiliates, desires to develop, own and operate an approximately
320,000 square foot manufacturing and assembly facility to be located in the
United States for the purpose of assembly of key wind turbine generator set
components, which facility would expect to employ up to about 1,000 workers in
America (the “Manufacturing
Facility”).
E. When
the Manufacturing Facility is completed, A-Power intends to assemble wind
turbine generator sets at the Manufacturing Facility to be sold to and used in
one or more of the above referenced wind energy projects in the United
States.
F. USREG
desires to cooperate and assist A-Power pursuant to this Agreement in
A-Power’s
efforts to develop the Manufacturing Facility and A-Power desires to cooperate
with USREG in its efforts.
AGREEMENT
NOW,
THEREFORE, in consideration of the premises and mutual promises contained in
this Agreement and in the recitals hereto (the mutuality, adequacy and
sufficiency of which are hereby acknowledged), the Parties agree as
follows:
ARTICLE
1.
TERMS
OF COOPERATIVE EFFORTS
1.1 Cooperative Efforts.
USREG shall use its reasonable efforts to assist A-Power and its
affiliates with (a) the identification of one or more suitable sites for the
Manufacturing Facility, (b) the identification of potential local, state and
federal governmental incentives potentially available for the development and
operation of the Manufacturing Facility, (c) identification of suitable
potential third parties with expertise in the development, management, and
operation of manufacturing and assembly facilities similar to the Manufacturing
Facility, and (d) provide such other cooperative assistance as the Parties
mutually agree in connection with the development of the Manufacturing Facility.
A-Power or its affiliates shall provide and discuss with USREG its technical and
economic requirements in connection with the Manufacturing Facility and such
other information as A-Power determines is reasonably necessary to assist USREG
in its efforts.
1.2 Costs.
Unless otherwise mutually agreed in a separate writing, each Party will be
responsible for its own internal and external costs and that of its affiliates
and Representatives, including staff remuneration and general administrative
expenses. “Representatives”
means the shareholders, directors, officers, employees, agents,
subcontractors and representatives of either Party who are directly concerned or
involved with this Agreement. Neither Party shall contract or otherwise agree to
incur any third-party services or costs on behalf of the other Party without the
express agreement of the other Party with respect to payment of such services
and costs. Both Parties shall be free to retain its own external legal, tax,
accounting, financing, and engineering advice at it's own expense without
reimbursement at any time from the other Party.
1.3 Meetings.
The Parties agree to periodically meet, either by telephone or in-person, to
discuss and exchange information on the development of the Manufacturing
Facility pursuant to this Agreement.
ARTICLE
2.
OTHER
TERMS AND CONDITIONS
2.1 Exclusivity.
2.1.1
In consideration of the substantial expenditure of time, effort and expense to
be undertaken by A-Power, USREG hereby undertakes and agrees that it will not
(or authorize or permit any of their respective Representatives) to, take,
directly or indirectly, any action to initiate, assist, solicit, receive,
negotiate, encourage or accept any offer or inquiry from any person (i) to
engage in any Alternate Transaction, (ii) to reach any agreement or
understanding (whether or not such agreement or understanding is absolute,
revocable, contingent or conditional) for, or otherwise attempt to consummate,
any Alternate Transaction or (iii) to furnish or cause to be furnished any
information with respect to the Project to any person (other than as
contemplated by this Agreement) who USREG, or any such affiliate or
Representative, knows or has reason to believe is in the process of considering
any Alternate Transaction. If USREG or any such affiliate or Representative
receives from any person any offer, inquiry or informational request referred to
above, USREG will promptly, orally and in writing, advise A-Power of such offer,
inquiry or request and deliver a copy of such offer, inquiry or request to
A-Power. An "Alternate
Transaction" shall mean (i) any agreement, joint venture, partnership,
investment, financing, acquisition or other transaction(s) for the siting,
development, ownership or operation of a wind turbine generator set
manufacturing and assembly facility in the United States (other than with
A-Power or any of its affiliates), or (ii) any other transaction that could have
an adverse impact on A-Power's or its affiliate's ability to site, develop, own
or operate the Manufacturing Facility as contemplated herein.
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2.1.2
Nothing in this Agreement shall be construed to prohibit or restrict A-Power or
its affiliates or their respective investors from pursuing or entering into
business relationships with any entity other than USREG, whether or not for a
manufacturing or assembly facility similar to or correlated with the
Manufacturing Facility, in any location.
2.2 Preliminary Obligations
Only. It is expressly understood that (a) this Agreement is not intended
to, and does not, constitute an agreement to consummate any investment
transaction or to enter into any co-investment, co-development, joint venture,
partnership or similar agreement, and (b) the Parties hereto will have no rights
or obligations of any kind whatsoever relating to compensation by virtue of this
Agreement or any other written or oral expression by their respective
Representatives unless and until a definitive and binding agreement (approved by
Parties' respective governing bodies) have been executed and delivered (each, a
“Definitive
Agreement”).
Efforts by either Party to complete due diligence, negotiate any
contract, negotiate or obtain financing, or work on development activities will
not be considered as evidence of intent by either Party or its affiliates to be
bound by or to otherwise enter into any Definitive Agreement or a similar
transaction. Reliance by either Party on the consummation of a potential
transaction prior to the execution and delivery of a Definitive Agreement shall
be at that Party's risk and shall not give rise to liability arising in
contract, tort, promissory estoppel or otherwise. This paragraph supersedes any
other conflicting statement made by any Representative of either
Party.
2.3 No Liability. Neither
Party shall be liable to the other for incidental, indirect, consequential or
punitive damages resulting from or arising out of this Agreement, including
without limitation loss of profits, business opportunity or business
interruption, regardless of how such damages were caused, whether by sole, joint
or concurrent negligence of either Party. The Parties' rights and obligations
under this Section 2.3 shall survive termination of this Agreement.
2.4 Press Releases.
Promptly after mutual execution and delivery of this Agreement, the Parties may
jointly prepare a mutually agreeable press release for distribution by either
Party. All press releases shall be subject to mutual agreement of the
Parties.
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2.5 Confidentiality.
2.5.1
To facilitate discussions, upon execution of this Agreement, each Party may
provide to the other Party information, including technical, operational,
procedural and other information, data, feasibility studies, Consultant
Information, surveys, billing rate schedules, design studies, correspondence,
orders, proceedings and other material information related to the Project, the
Parties and any of their subsidiaries or affiliates, whether in writing,
electronic format or otherwise (collectively, the "Confidential
Information"). From the date of this Agreement until the second
anniversary of such date, each Party shall, and shall cause its Representatives
to, receive and maintain in confidence, and use only as necessary for purposes
of its activities contemplated by this Agreement and not reveal to any other
person (other than its Representatives who are actually performing its
activities contemplated by this Agreement), any Confidential Information. Each
Party will ensure that each Representative to whom such disclosure is made
adheres to the terms of this Agreement as if that representative had directly
agreed to undertake the same terms. Each Party will be responsible for any
breach of the terms of this Agreement by any of its
Representatives.
2.5.2
The obligation to maintain confidentiality shall not apply to (i) information
that becomes generally available to the public without breach of any
confidentiality obligation owed to any of the Parties or their respective
Representatives, (i) information previously known to such Party prior to its
receipt from the other Party, (iii) information which is made available to such
Party by a third party who was under no obligation of confidentiality with
respect to such information or (iv) disclosure as required by law, government
agency or any recognized stock exchange.
2.5.3
Upon the disclosure of any Confidential Information pursuant to clause (b), the
disclosing Party shall notify the other Party of such required disclosure as
soon as possible (but in no event longer than one Business Day) following the
request for the information so that the other Party may seek to resist, narrow
the scope or waive the request or seek to obtain confidential treatment of the
information so disclosed. Each Party will inform the other Party of the means,
content and timing of such disclosure prior to such disclosure being
made.
2.6 Notices.
Ordinary course business communications in connection with the performance of
this Agreement may be given electronically, by fax, by mail or any other
comparable means, but any such communication will be deemed received only upon
actual receipt. Any other notice, communication and delivery under this
Agreement (including one of default or termination): (a) will be made in writing
signed by the Person making it; (b) will specify the Section to which it
relates; (c) will be delivered only (i) in person, (ii) by nationally recognized
next Business Day delivery service electing, and being timely delivered to such
service for, next Business Day delivery, or (iii) by fax and with a confirming
copy sent by a nationally recognized next Business Day delivery service
electing, and being timely delivered to such service for, next Business Day
delivery; (d) unless given in person, will be given to the address specified
below; (e) will be deemed given (i) if delivered in person, on the date of
personal delivery, (ii) if sent by nationally recognized next Business Day
delivery service electing, and being timely delivered to such service for, next
Business Day delivery, on the first Business Day after so sent, or (iii) if sent
by fax with a copy sent by a nationally recognized Business Day delivery service
electing, and being timely delivered to such service for, next Business Day
delivery, on the first Business Day after so sent; and (f) will be deemed
received (i) if delivered in person, on the date of personal delivery, (ii) if
sent by nationally recognized next Business Day delivery service electing, and
being timely delivered to such service for, next Business Day delivery, on the
first Business Day after so sent, and (iii) if sent by fax and with a confirming
copy sent by a nationally recognized next Business Day delivery service
electing, and being timely delivered to such service for, next Business Day
delivery, on the first Business Day after so sent. The Person giving the notice
will pay all delivery costs. The addresses and the requirements for copies are
as follows:
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If to
USREG Wind, to:
United
States Renewable Energy Group, LLC
0000
Xxxxx Xxxxxx
Xxxxx
000
Xxxxxx,
Xxxxx 00000
Attention:
Xxxxx XxXxxx
with a
copy to:
Xx
Xxxxxxxxxx
00000
Xxxxxxxx Xxxx
Xxxxxx,
XX 00000
If to
A-Power, to:
A-Power
Energy Generation Systems Ltd.
Xx. 00
Xxxxxxxx Xxxxx Xxxxxx
Xxxxx
Xxxxxxxx
Xxxxxxxx,
Xxxxxxxx Xxxxxxxx, Xxxxx 000000
Telephone:
00-00-00000000
Facsimile:
00-00-00000000
Attention:
Xxxx X. Xxx
with a
copy to:
Xxxxx
& XxXxxxxx LLP
0000
Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx,
Xxx Xxxx 00000
Telephone:
(000) 000-0000
Facsimile:
(000) 000-0000
Attention:
Ata Dinlenc, Esq.
Notice
will be given to such other representatives or at such other addresses as a
Person may furnish to the other Persons entitled to notice pursuant to the
foregoing. If notice is given pursuant to this Section of a permitted successor
or assign of a Person, then notice will thereafter be given as set forth above
also to such successor or assign of such Person.
2.7 Jurisdiction; Service of
Process. All actions or Proceedings relating to this
Agreement (whether to enforce a right or obligation or obtain a remedy or
otherwise will be brought solely in the state or federal courts located in the
Midland, Texas. Each Party hereby unconditionally and irrevocably consents to
the jurisdiction of those courts and waives its rights to bring any action or
Proceeding against the other Party except in those courts. Process in any action
or Proceeding referred to in the preceding sentence may be served on any Party
anywhere in the world. Each Party irrevocably waives any right to a jury trial
with respect to any matter arising out of or in connection with this Agreement.
If any Party seeks to enforce its rights under this Agreement by joining another
Person to a Proceeding before a jury in which the third party is a party, the
Parties will request the court to try the claims between the Parties without
submitting the matter to the jury.
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2.8 Entire Agreement and
Modification. This Agreement (a) supersedes all prior
or contemporaneous agreements or understandings, oral or written, between the
Parties with respect to the subject matter hereof and (b) constitutes a complete
and exclusive statement of the terms of the agreement between the Parties with
respect to their subject matter. This Agreement may not be amended except by a
written agreement executed by the Parties.
2.9 Assignments, Third
Parties. Neither Party may assign or transfer (by
contract, merger, operation of law or otherwise) any of it rights, duties or
obligations in this Agreement without the prior written consent of the other
Party. Subject to the foregoing sentence, this Agreement shall be binding on and
inure to the benefit of each Party's permitted successors and assigns. Nothing
expressed or referred to in this Agreement will be construed to give any person
or entity other than the Parties hereto any legal or equitable right, remedy or
claim under or with respect to this Agreement or any provision of this
Agreement. This Agreement and all of its provisions and conditions are for the
sole and exclusive benefit of the Parties hereto and their respective permitted
successors and assigns.
2.10 No Third Party
Rights. Nothing expressed or referred to in this
Agreement will be construed to give any Person other than the Parties any legal
or equitable right, remedy or claim under or with respect to this Agreement or
any provision of this Agreement. This Agreement and all of its provisions and
conditions are for the sole and exclusive benefit of the Parties and their
successors and assigns.
2.11 Governing
Law. This Agreement, including issues arising out of or
related to this Agreement, will be governed by the laws of the State of Texas,
without regard to that body of law relating to conflict of laws.
2.12 Relationship of the
Parties. Nothing contained herein or in the title of
this Agreement creates or shall be deemed to create any relationship of
partnership, joint venture or agency between the Parties for any purpose, nor
shall any similar relationship be deemed to exist between them. No joint venture
entity or other legal entity is created by this Agreement. No Party shall have
the right to represent the other Party or to enter into any commitment or
agreement on behalf of the other Party without such Party's prior specific
written consent.
[signatures
are on next page]
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DULY
EXECUTED BY the Parties on as of the date first written above.
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United
States Renewable Energy Group, LLC
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By:
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Xxxxx
XxXxxx or Representative
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Title:
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By:
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Xxxxxxxx
Xx
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Chief
Executive Officer
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