ACQUISITION AGREEMENT by and between
by and
between
GPR
Global
Power Resources Ltd.,
Xxxxxxxxxxx
00, 0000 Xxxxxx, Xxxxxxxxxxx; fax no.; x00-00-000 44 01;
(hereinafter referred to as:
“GPR” or “the Purchaser”)
and
Prime
Sun
Power
Inc., 000 Xxxx
Xxxxxx, 00xx
Xxxxx, Xxx Xxxx, XX 00000 XXX, or its assignees, a wholly subsidiary of Prime
Sun Power Inc. c/o Prime Asset Finance Ltd., Xxxxxxxxxxx 0, 0000 Xxxxxx,
Xxxxxxxxxxx; fax no.: x00 000 00 00 00;
(hereinafter referred to as:
“the Seller”)
(GPR and Prime Sun Power Inc.
hereinafter jointly referred to as: “the Parties”)
FOR
THE PURCHASE OF A TURNKEY ALTERNATIVE ENERGY PLANT(S)
dated as
of this March 2nd,
2010
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This
ACQUISITION AGREEMENT
(hereinafter referred to
as: “the Agreement”) is entered as of the date as
indicated below by the Purchaser, a company limited by shares duly incorporated
and existing under the substantive laws of Switzerland having its statutory seat
in Zurich, Switzerland, registered with the Register of Commerce of the Canton
of Zurich under the company number CH-130.3.009.690-5, and the
Seller.
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A.
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PREAMBLE
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WHEREAS,
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the
Purchaser desires to acquire all shares in the Company holding full and
sole ownership of the turnkey Power Plant and the Seller desires to sell
all of the shares in the Company to the
Purchaser;
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the
provisions and regulations as set forth in Chapter 3 of Annexe E shall be
applicable if the Power Plant has not yet been connected to the power grid
as defined in art. 17 thereof;
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the
Seller shall supply to the Purchaser all necessary documentation,
information and data in order to enable the Purchaser to perform complete
and thorough due diligences on the Company, the Project and the Power
Plant during all processes as set forth
herein;
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the
Seller shall warrant and represent to the Purchaser that the Power Plant
produces the minimum Megawatts of electricity per year as defined in
Annexe A1 at a minimum performance ratio and at a feed-in tariff for the
duration as specified in Annexe A1 nevertheless granting to the Purchaser
the right to give binding instructions to the Seller which may lead to a
better performance ratio of the Power Plant, be it during the planning
process or the construction process of the Power Plant, within the limits
as set forth in this Agreement;
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the
Seller shall transfer to the Purchaser at Closing of this Agreement, which
shall occur pursuant to Chapter 5 of Annexe E and as defined in this main
part of the Agreement, all Shares in the Company holding full and sole
ownership of the Power Plant;
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the
Purchaser shall pay to the Seller the purchase price as defined in art. 81
et seq. of Annexe
E at Closing pursuant to the terms and conditions as foreseen in Chapter 5
of Annexe E and as set forth in this main part of the Agreement, which
shall inter alia
be subject to full Grid Connection at the agreed Capacity and at
the minimum performance ratio and revenue production at Feed-in Tariffs,
and all terms and conditions set forth in this main part of the
Agreement;
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the
Parties acknowledge that the terms and conditions as set forth in the
Annexes hereto shall be subject to review and approval by the financing
institution or bank (hereinafter referred to as: “Financing Institution”) which shall provide at least
80% of the purchase price as defined herein (hereinafter referred to
as: “Long-Term Debt”), wherefore this Agreement and
its Annexes shall be binding for the Parties to such an extent as accepted
and approved by the Financing Institution. Any modification of the terms
and conditions of the Annexes hereto as required by the Financing
Institution as well as the terms and conditions of the Long-Term Debt
shall be subject to final consent and approval by the Parties hereto in
writing, which shall not be unreasonably
withheld.
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NOW, THEREFORE, in
consideration of their mutual promises and obligations and intending to be
legally bound hereby, the Parties agree as follows:
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B.
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CLAUSES
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1.
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The
Seller sells to the Purchaser and the Purchaser purchases from the Seller
all shares in the Company holding full and sole ownership of the Power
Plant, all subject to the terms and conditions of this
Agreement.
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2.
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The
Purchase Price shall be (i) € 4.05m (Euro four million and fifty thousand)
per MWp in the event of a granted Long-Term Debt of at least 80%, and (ii)
€ 4.1m (Euro four million and one hundred thousand) per MWp in the event
of a granted Long-Term Debt of 85% or more, all on the basis of a feed-in
tariff as referred to in the Annexe A1 for a period of 20 years as
warranted and represented by the Seller in this Agreement and as defined
in art. 81 et seq.
of Annexe E.
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3.
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The
Parties agree that the terms and conditions as set forth in Chapter 3 of
Annexe E shall apply to the extent that the Power Plant has not yet
reached Grid-Connection, all subject to the terms and conditions as set in
this Agreement.
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4.
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Notwithstanding
the regulation of art. 12 in Annexe E, the EPC contract for
the
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5.
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The
Seller shall be obliged to supply the Purchaser with all necessary
documentation, information and data in order to enable the Purchaser to
perform complete and thorough due diligences on the Company, the Project
and the Power Plant during all processes as set forth
herein.
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6.
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The
Seller shall facilitate and arrange through the Financing Institution the
long-term debt financing of at least 80% of the Purchase Price (i.e.
Long-Term Debt). The Seller warrants and represents that the Long-Term
Debt will remain in force after Closing of this Agreement and will not be
set due prematurely due to whatever reason such as, without being limited
to, the change of control and ownership in the Company, without the prior
written consent of the Purchaser.
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7.
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The
Parties acknowledge that the terms and conditions as set forth in this
Agreement and its Annexes shall be subject to review and approval by the
Financing Institution, wherefore the Annexes hereto shall exclusively be
binding for the Parties to such an extent as accepted and approved by the
Financing Institution.
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8.
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Any
modification of the terms and conditions of this Agreement and its Annexes
as required by the Financing Institution as well as the terms and
conditions of the Long-Term Debt shall be subject to final consent and
approval by the Parties hereto in writing, which shall not be unreasonably
withheld.
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9.
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The
Seller warrants and represents to the Purchaser that the Power Plant
produces the minimum Megawatts of electricity per year as defined in
Annexe A1 at the minimum performance ratio and at a feed-in tariff for the
duration as specified in Annexe A1 and grants to the Purchaser the right
to give binding instructions to the Seller which may lead to a better
performance ratio of the Power Plant, be it during the planning process or
the construction process of the Power Plant, within the limits as set
forth below:
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The
Parties acknowledge and agree that any Purchaser’s right to give binding
instructions as set forth in Annexe E shall in any case (i) lead to a verifiable
and measurable improvement of the performance of the Power plant; (ii) not
increase the construction costs unless agreed by the Parties in writing; (iii)
not negatively affect the achievement of Grid Connection until the Connection to
Grid Date; (iv) not lead to a delay of the construction of more than 40 days;
(v) not negatively affect any licenses and/or approvals granted by competent
authorities; and (vi) be restricted to the time before the Parties have agreed
on the modifications of the terms and conditions of the Annexes hereto as
required by the Financing Institution as well as on the terms and conditions of
the Long-Term Debt.
The
Parties acknowledge and agree that the Seller shall not be liable for a
performance ratio of the Power Plant higher than guaranteed by the
EPC-contractor(s) and the modules supplier(s), which in any case shall comply
with common industrial standards, unless explicitly otherwise agreed in this
Agreement.
The
Seller’s representation and warranties as set forth in this Agreement shall not
cover that part of the Power Plant construction performed in execution of the
Purchaser’s instructions, to the extent that (i) the default of representations
and/or warranties has been caused by the Purchaser’s instructions and not by the
Seller’s default in executing the Purchaser’s instructions, or (ii) the
resulting default of representations and/or warranties is covered by third
parties representations and/or warranties.
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10.
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Without
prejudice to the Seller’s representations and warranties under this
Agreement the
Seller shall assign to the Purchaser all representations and warranties
made by third
parties, such as, without being limited to, Sub-Contractors,
EPC-Contractors and Suppliers,
to the Company at the latest at Closing (hereinafter referred to as: “Assigned Guarantees”). Therefore, in addition to
the deliveries as defined in art. 74 par.
1 (v) of Annexe E the Seller shall deliver to the Purchaser original
copies of the aforementioned
assignments of all third parties’ representations and
warranties.
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The
Parties acknowledge and agree that in the event of any default which is covered
by an Assigned Guarantee and the Purchaser claims remedy from the Seller, the
Purchaser shall be obliged to re-assign the affected Assigned Guarantee to the
Seller after the Seller has remedied the default in order to enable the Seller
to hold itself harmless.
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11.
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The
Purchaser shall pay the Purchase Price as defined in art. 2 hereof for the
Power Plant
grid connected pursuant to this Agreement and the final version of its
Annexes as approved
by the Financing Institution and agreed by the Parties, and the Purchaser
shall
deliver the Purchase Price as
follows:
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After the
approval of this Agreement by the Financing Institution pursuant to art. 7
hereof and the final approval by the Parties of the final terms and conditions
of the required modifications and the Long-Term Debt pursuant to art. 8 hereof,
the Purchaser shall deliver a rollover Bank Standby Letter of Credit or any
other financial instrument in form and substance acceptable to the Financing
Institution (hereinafter referred to as: “Bankable Equity Instrument”), in the amount of 100% of the
equity portion of the Purchase Price of the first five (5) MW of the Power Plant
which shall be carried forward for each of the next tranches of five (5) MW,
provided that such Bankable Equity Instrument guarantees the rollover until the
final payment of the Purchase Price.
Upon
achievement of the Grid Connection as defined in Annexe E of each tranche of (5)
MW or more of the Power Plant, the Purchaser shall release and deliver to the
Seller the Purchase Price for such tranche of five (5) or more MW. The Seller
shall be entitled to draw the Purchaser’s Bankable Equity Instrument in the
event the Purchase Price for a tranche as described above is not otherwise
delivered to the Seller upon its Grid Connection and within the time periods as
defined in Annexe E.
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12.
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The
Parties acknowledge and agree that the terms and conditions regarding the
Closing as set forth in Annexe E shall be observed for each tranche of
five (5) MW which achieves Grid Connection as defined in Annexe E.
Therefore, the Seller shall transfer to the Purchaser at Closing for each
grid connected tranche of 5 (five) or more MW the equivalent amount of
free and clear Shares in the Company holding full and sole ownership of
the Power Plant.
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13.
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The
Seller and the Purchaser agree to establish mutually acceptable terms and
conditions for an escrow of the Shares of the Company with respect to the
period commencing on the Signing Date of this Agreement until the final
payment of the Purchase
Price.
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14.
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The
Parties agree to derive as much efficiency as possible with respect to
representations, warranties and covenants given by the qualified
contractors and qualified suppliers approved by the Financing Institution
pertaining to construction and delivery of grid connected turnkey Power
Plants, with such supplemental guarantees and assurances to be given by
the Seller to the Purchaser as reasonably necessary
thereto.
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15.
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Each
Party shall bear its own respective expenses incurred in connection with
the negotiation, preparation, and documentation of the transactions
contemplated herein. Notwithstanding the regulations of art. 85 and art.
93 in Annexe E, each Party shall bear its own taxes levied to such Party
on the transfer of the Shares from the Seller to the
Purchaser.
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16.
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The
Seller is a U.S. public company wherefore the Parties acknowledge that
U.S. public companies are subject to specific laws, rules and regulations
and the Parties agree not to publicly trade securities of the Seller until
after any and all mandatory public announcements as required by law have
been made. The Parties agree to fully comply with any and all applicable
and mandatory securities laws which are not in conflict with the Swiss law
and agree not to trade at any time any securities of the Seller on the
basis of material non-public information. This Agreement and the terms
herein shall be maintained as confidential by the Parties until a mutually
acceptable public announcement is prepared regarding the matters
contemplated herein, unless prior disclosure is required by mandatory law
or regulations applicable to such
Party.
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17.
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Notwithstanding
the regulation of art. 249 in Annexe E, the Parties hereby agree that any
dispute, controversy or claim arising out of or in relation to this
Agreement, including the validity, invalidity, breach or termination
thereof, shall be settled by arbitration in
accordance with the Swiss
Rules of International Arbitration of the Swiss Xxxxxxxx of Commerce
in force on the date when the Notice of Arbitration is submitted in
accordance with these Rules.
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The
number of arbitrators shall be three (3) for claims of at least CHF
1’000’000.00, otherwise one (1).
The seat of the arbitration shall
be in Zurich. The
arbitral proceedings shall be conducted in English.
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18.
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All
Annexes enclosed to this Agreement and to which reference is made herein
are incorporated
by reference as if fully set forth herein and form an integral part of
this Agreement.
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The
Parties acknowledge and agree that in the event of any contradiction as well as
in case of any interpretative questions between the terms and conditions of this
main part of the Agreement and of Annexe E hereto, the terms and conditions of
this main part of the Agreement shall prevail.
IN WITNESS WHEREOF, the
Parties hereto have caused this Agreement to be executed by their duly
authorized officers as of the date written below.
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IN WITNESS WHEREOF, the
Parties hereto have caused this Agreement to be executed by their duly
authorized officers as of the date written below.
*
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Zurich,
this
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2nd
of March
2010
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Place/Date:
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02/03/2010
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The
Purchaser:
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The
Seller:
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GPR
Global
Power
Resources
Ltd.
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/s/
Xxxxxx Xxxxxxxxxx
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/s/
Olivier de
Vergnies
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Xxxxxx
Xxxxxxxxxx
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Xxxxxxx
de Vergnies
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Annexes:
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Annexe
A1:
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Specifications
of the Power Plant
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Annexe
A2:
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Checklist
for Insurance of Photovoltaic Installations
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Annexe
B:
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List
of Agreements, Liabilities and Obligations of the
Company
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Annexe
C:
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Due
Diligence List
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Annexe
D:
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Closing
Minutes
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Annexe
E:
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General
Terms and Conditions of Acquisition
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Annexe
F:
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Document
Request List
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