Attached files
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EX-31.1 - Sino Clean Energy Inc | v163431_ex31-1.htm |
EX-31.2 - Sino Clean Energy Inc | v163431_ex31-2.htm |
UNITED
STATES SECURITIES AND EXCHANGE COMMISSION
WASHINGTON,
D.C. 20549
FORM
10-K/A
(Amendment
No. 1 )
x
|
ANNUAL
REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF
1934
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For
the fiscal year ended December 31, 2008
OR
o
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TRANSITION
REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF
1934
|
For the transition period from
to
Commission
file number: 000-51753
SINO
CLEAN ENERGY INC.
(Exact
name of Registrant as specified in its charter)
Nevada
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75-2882833
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(State
or other jurisdiction of incorporation or organization)
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(I.R.S.
Employer Identification No.)
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Room
1605, Suite B, Zhengxin Building
No.
5, Gaoxin 1st Road, Gaoxin District
Xi’an, Shaanxi Province,
People’s Republic of China
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N/A
|
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(Address
of principal executive offices)
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(Zip
Code)
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Registrant’s
telephone number: (8629)
8209-1099
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Securities
registered pursuant to Section 12(b) of the Act: None
Securities
registered pursuant to Section 12(g) of the Act: Common Stock, $0.001 par
value
Indicate
by check mark if the registrant is a well-known seasoned issuer, as defined in
Rule 405 of the Securities Act. Yes o No x
Indicate
by check mark if the registrant is not required to file reports pursuant to
Section 13 or Section 15(d) of the Act. Yes o No x
Indicate
by check mark whether the registrant (1) has filed all reports required to
be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934
during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to
such filing requirements for the past 90 days. Yes x No o
Indicate
by check mark if disclosure of delinquent filers pursuant to Item 405 of
Regulation S-K (§229.405 of this chapter) is not contained herein, and will
not be contained herein, to the best of registrant’s knowledge, in definitive
proxy or information statements incorporated by reference in Part III of
this Form 10-K or any amendment to this Form 10-K. o
Indicate
by check mark whether the registrant is a large accelerated filer, an
accelerated filer, a non-accelerated filer, or a smaller reporting
company. See the definitions of “large accelerated filer” and
“smaller reporting company” in Rule 12b-2 of the Exchange Act.
Large
accelerated filer o
|
Accelerated
filer o
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Non-accelerated
filer o
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Smaller
reporting company x
|
Indicate
by check mark whether the registrant is a shell company (as defined in Rule
12b-2 of the Act). Yes o No x
As of
June 30, 2008, the aggregate market value of the voting stock held by
non-affiliates of the Registrant was approximately $11,338,000 based on a
closing price of $0.20 per share of common stock as reported on the
Over-the-Counter Bulletin Board on such date.
On March
27, 2009, we had 92,181,750 shares of common stock issued and
outstanding.
EXPLANATORY
NOTE
Sino
Clean Energy Inc. is filing this Amendment No. 1 (this “Amendment”) to the
Annual Report on Form 10-K for the year ended December 31, 2008, which was
originally filed with the Securities and Exchange Commission on April 6, 2009
(the “Annual Report”), to revise the disclosure required by Item 9A(T) of Form
10-K regarding the conclusion by our chief executive officer and chief financial
officer of the effectiveness of our disclosure controls and procedures, as the
conclusion included in the Annual Report was unclear and qualified, and to
reflect the proper period regarding changes in internal control over financial
reporting. Additionally we are filing revised certifications of our chief
executive officer and chief financial officer as required by Rule 13a-14(a) (17
CFR 240.13a-14(a)) or Rule 15d-14(a) (17 CFR 240.15d-14(a)) promulgated under
the Securities Exchange Act of 1934, as amended, which were originally filed as
Exhibits 31.1 and 31.2 of the Annual Report (the “Original Certifications”).
Paragraphs 4 and 4(b) in the Original Certifications inadvertently omitted
certain language as required by Item 601 of Regulation S-K.
This
Amendment continues to speak as of the date of the Annual Report, and does not
reflect events occurring after the filing of the Annual Report or modify or
update any related or other disclosures unless expressly noted otherwise.
Accordingly, this Amendment should be read in conjunction with the Annual Report
and with our other filings made with the Securities and Exchange Commission
subsequent to the filing of the Annual Report, including any amendments to those
filings. The filing of this Amendment shall not be deemed an admission that the
Annual Report when made included any untrue statement of a material fact or
omitted to state a material fact necessary to make a statement not
misleading.
Evaluation
of Disclosure Controls and Procedures
The term
“disclosure controls and procedures” is defined in Rule 13a-14(c) of the
Securities Exchange Act of 1934, as amended (the “Exchange Act”).
Our Chief Executive Officer and our Chief Financial Officer have evaluated the
effectiveness of our disclosure controls and procedures as of December 31,
2008, and have concluded that as of that date, our disclosure controls and
procedures were not effective at the reasonable assurance level.
Management’s
Report on Internal Control over Financial Reporting
Management
of the Company is responsible for establishing and maintaining adequate internal
control over financial reporting. The Company's internal control over financial
reporting is designed to provide reasonable assurance regarding the reliability
of financial reporting and the preparation of financial statements for external
purposes in accordance with generally accepted accounting principles in the
United States of America. The Company's internal control over financial
reporting includes those policies and procedures that: (i) pertain to the
maintenance of records that, in reasonable detail, accurately and fairly reflect
the transactions and dispositions of the assets of the Company; (ii) provide
reasonable assurance that transactions are recorded as necessary to permit
preparation of financial statements in accordance with generally accepted
accounting principles in the United States of America, and that receipts and
expenditures of the Company are being made only in accordance with
authorizations of management and directors of the Company; and (iii) provide
reasonable assurance regarding prevention or timely detection of unauthorized
acquisition, use or disposition of the Company's assets that could have a
material effect on the financial statements.
Any
system of internal control, no matter how well designed, has inherent
limitations, including the possibility that a control can be circumvented or
overridden and misstatements due to error or fraud may occur and not be detected
in a timely manner. Also, because of changes in conditions, internal control
effectiveness may vary over time. Accordingly, even an effective system of
internal control will provide only reasonable assurance with respect to
financial statement preparation.
Management
assessed the effectiveness of the Company's internal control over financial
reporting as of December 31, 2008. In making this assessment, management used
the criteria set forth by the Committee of Sponsoring Organizations of the
Treadway Commission (COSO) in "Internal Control-Integrated Framework." Based on
that evaluation, our management concluded that as of December 31, 2008, our
internal control over financial reporting was not effective because of the
material weaknesses described below. A material weakness is a
deficiency, or a combination of deficiencies, in internal control over financial
reporting such that there is a reasonable possibility that a material
misstatement of the registrant's annual or interim financial statements will not
be prevented or detected on a timely basis. In its assessment of the
Company’s internal control over financial reporting as of December 31,
2008, our management concluded that our internal control over financial
reporting was subject to the following material weaknesses, which we identified
in our annual report for the year ended December 31, 2007:
1.
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The
operations of the affiliated entities is in China, hence the
presentation of their financial statements, do not fully comply with
the U.S. GAAP. The Company had insufficient personnel to
perform the accounting and financial reporting functions and existing
personnel lacked the appropriate level of accounting knowledge,
experience and training in the application of accounting principles
generally accepted in the United States and were inadequately
supervised. The lack of sufficient and adequately trained
accounting and finance personnel resulted in an ineffective
segregation of duties relative to key financial reporting functions;
and
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2.
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Lack
of timely identification, research and resolution of accounting issues and
lack of documentation of consideration of recent accounting
pronouncements.
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Since the
2007 annual report, the Company has taken steps to address these material
weaknesses as follows:
1.
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We
hired additional accounting and operations personnel to ensure that
accounting personnel with adequate experience, skills and knowledge
relating to complex, non-routine transactions are directly involved in the
review and accounting evaluation of our complex, non-routine
transactions;
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2.
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In
December 2008, we appointed Mr. Hon Wan Chan, whom our management believes
has the requisite financial reporting experience, skills and knowledge to
complement our existing personnel, as our new Chief Financial
Officer;
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3.
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Our
internal accounting and operations personnel are now required early in the
evaluation of a complex, non-routine transaction to obtain additional
guidance as to the application of generally accepted accounting principles
to such a proposed transaction;
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4.
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Our
senior accounting personnel has established standards to review, analysis
and related conclusions with respect to complex, non-routine transactions;
and
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5.
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Our
senior accounting personnel and the Chief Financial Officer are now
required to review complex, non-routine transactions to evaluate and
approve the accounting treatment for such
transactions.
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Changes
in Internal Control Over Financial Reporting
There were no changes in our internal
controls over financial reporting that occurred during the three months ended
December 31, 2008 that has materially affected, or is reasonably likely to
materially affect, our internal control over financial reporting.
ITEM 15. EXHIBITS
Exhibit
Number
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Description
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2.1
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Share
Exchange Agreement by and between Endo Networks, Inc. (“Endo”), the
Majority Shareholders of Endo, Hangson Ltd. (“Hangson”) and the
Shareholders of Hangson dated October 18, 2006 (1)
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3.1
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Articles
of Incorporation of Endo Networks, Inc., a Nevada corporation, as amended.
(3)
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3.2
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Bylaws
of Endo (3)
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3.3
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Text
of Amendment to our Bylaws (4)
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3.4
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Articles
of Merger filed with the Secretary of State of Nevada with an effective
date of August 15, 2007 (6)
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4.1
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Form
of Registrant’s 18% Secured Convertible Debenture (9)
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4.2
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Form
of Registrant’s Warrant (9)
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4.3
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Form
of Warrant issued to Ancora Securities, Inc. (9)
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4.4
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Non-statutory
Stock Option Agreement by and between Registrant and Hon Wan Chan dated
December 15, 2008 (11)
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10.1
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Asset
and Share Purchase Agreement by and between Registrant and Peter B. Day
(for Endo Canada) (2)
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10.2
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Securities
Purchase Agreement by and among Registrant, Peng Zhou and Shaanxi Suo’ang
New Energy Enterprise Co., Ltd. dated June 30, 2008 (8)
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10.3
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Securities
Purchase Agreement by and among Registrant and two institutional and
accredited investors dated September 16, 2008 (9)
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10.4
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Securities
Purchase Agreement by and among Registrant and four institutional and
accredited investors dated September 19, 2008 (10)
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10.5
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Employment
Agreement by and between Registrant and Hon Wan Chan dated December 15,
2008 (11)
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10.6
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Form
of Director Offer Letter (11)
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10.7
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Indemnity
Agreement by and between Registrant and Bennet P. Tchaikovsky
dated December 15, 2008 (11)
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10.8
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Form
of Exchange and Amendment Agreement by and among Registrant and six
institutional and accredited investors (12)
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14
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Code
of Business Conduct and Ethics (11)
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21
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List
of Subsidiaries (7)
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31.1
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Section
302 Certification by the Corporation’s Chief Executive Officer
*
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31.2
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Section
302 Certification by the Corporation’s Chief Financial Officer
*
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32.1
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Section
906 Certification by the Corporation’s Chief Executive Officer
(13)
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32.2
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Section
906 Certification by the Corporation’s Chief Financial Officer
(13)
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99.1
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Consulting
Services Agreement by and between Hangson and Shaanxi Suo’ang Biological
Science & Technology Co., Ltd. (“Suo’ang BST”) dated August 18, 2006
(3)
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99.2
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Equity
Pledge Agreement by and among Hangson, Suo’ang BST and Suo’ang BST’s
Majority Shareholders dated August 18, 2006 (3)
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99.3
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Operating
Agreement by and among Hangson, Suo’ang BST and Suo’ang BST’s Majority
Shareholders dated August 18, 2006 (3)
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99.4
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Proxy
Agreement by and between Hangson and Suo’ang BST’s Majority Shareholders
dated August 18, 2006 (3)
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99.5
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Option
Agreement between Hangson and Suo’ang BST’s Majority Shareholders dated
August 18, 2006 (3)
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99.6
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Agreement
by and between Suo’ang BST and Hanzhong Si Xiong Ke Chuang Business Co.
Ltd. (“Hangzhong”) (3)
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99.7
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Supplementary
Agreement by and between Suo’ang BST and Hanzhong dated March 25, 2007
(5)
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99.8
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Contract
for Technology Transfer between Suo’ang BST and HanZhongWeiDa Commercial
Company Limited (“HangZhongWeiDa”) dated December 25, 2006
(5)
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99.9
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Contract
for Technology Transfer between Suo’ang BST and HanZhongWeiDa dated
January 10, 2007 (5)
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____________
*
Filed herewith
(1)
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Filed
as Exhibit 10.1 to the Registrant’s Current Report on Form 8-K filed with
the SEC on October 18, 2006 and incorporated herein by
reference.
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(2)
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Filed
as Exhibit A of Registrant’s Schedule 14A filed with the SEC on August 8,
2006 and incorporated herein by reference.
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(3)
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Filed
as Exhibits to the Registrant’s Current Report on Form 8-K filed with the
SEC on October 26, 2006 and incorporated herein by
reference.
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(4)
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Filed
as an Exhibit to the Registrant’s Current Report on Form 8-K filed with
the SEC on November 17, 2006 and incorporated herein by
reference.
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(5)
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Filed
as Exhibits to the Registrant’s Annual Report on Form 10-KSB filed with
the SEC on May 3, 2007 and incorporated herein by
reference.
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(6)
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Filed
as an Exhibit to the Registrant’s Current Report on Form 8-K filed with
the SEC on August 17, 2007 and incorporated herein by
reference.
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(7)
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Filed
as an Exhibit to the Registrant’s Annual Report on Form 10-KSB filed with
the SEC on May 3, 2007 and incorporated herein by
reference.
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(8)
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Filed
as an Exhibit to the Registrant’s Current Report on Form 8-K filed with
the SEC on July 7, 2008 and incorporated herein by
reference.
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(9)
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Filed
as an Exhibit to the Registrant’s Current Report on Form 8-K filed with
the SEC on September 17, 2008 and incorporated herein by
reference.
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(10)
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Filed
as an Exhibit to the Registrant’s Current Report on Form 8-K filed with
the SEC on September 22, 2008 and incorporated herein by
reference.
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(11)
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Filed
as an Exhibit to the Registrant’s Current Report on Form 8-K filed with
the SEC on December 16, 2008 and incorporated herein by
reference.
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(12)
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Filed
as an Exhibit to the Registrant’s Current Report on Form 8-K filed with
the SEC on March 30, 2009 and incorporated herein by
reference.
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(13)
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Filed
as an Exhibit to the Registrant’s Annual Report on Form 10-K filed with
the SEC on April 6, 2009 and incorporated herein by
reference.
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SIGNATURES
In
accordance with Section 13 or 15(d) of the Exchange Act, the registrant caused
this report to be signed on its behalf by the undersigned, thereunto duly
authorized.
Dated:
October 22, 2009
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SINO
CLEAN ENERGY INC.
(Registrant)
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By:
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/s/
Baowen Ren
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Baowen
Ren
Chief
Executive Officer
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KNOW ALL
THESE PERSONS BY THESE PRESENTS, that each person whose signature appears below
constitutes and appoints Baowen Ren and Hon Wan Chan, and each of them, jointly
and severally, his attorneys in fact, each with full power of substitution, for
him in any and all capacities, to sign any and all amendments to this annual
report on Form 10-K, and to file the same, with exhibits thereto and other
documents in connection therewith, with the Securities and Exchange Commission,
hereby ratifying and confirming all that each said attorneys-in-fact or his
substitute or substitutes, may do or cause to be done by virtue
hereof.
In
accordance with the Exchange Act, this report has been signed below by the
following persons on behalf of the registrant and in the capacities and on the
dates indicated.
Signature
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Title
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Date
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||
*
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Chief
Executive Officer, President and Chairman of the Board
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|||
Baowen
Ren
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||||
*
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Chief
Financial Officer
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|||
Hon
Wan Chan
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||||
*
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Director
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|||
Wenjie
Zhang
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||||
*
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Director
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|||
Peng
Zhou
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||||
*
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Director
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|||
Bennet
P. Tchaikovsky
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||||
*
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Director
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|||
Zidong
Cao
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||||
/s/
Baowen Ren
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Attorney-in-fact*
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October
22, 2009
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||
Baowen
Ren
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