Apollo Solar Energy, Inc.
Bengbu Glass Industry Design Institute
Amendment No. 1 to Common Stock Purchase Agreement
January 20, 2010
AMENDMENT NO. 1 TO COMMON STOCK PURCHASE AGREEMENT
This AMENDMENT NO. 1 TO COMMON STOCK PURCHASE AGREEMENT (this “Amendment”) is entered into at Beijing, PRC, as of January 20, 2010, by and between:
Apollo Solar Energy, Inc. (the “Company”), a company duly incorporated and validly existing under the Laws of Nevada, with its registered address at 502 East John Street,
Carson City, Nevada, 89706, United States; and
East John Street, Carson City, Nevada, 89706。
Bengbu Glass Industry Design Institute (the “Purchaser”), a limited liability company duly incorporated and validly existing under the Laws of the PRC, with its address
at 1047 Tushan Road, Bengbu, Anhui Province, PRC.
WHEREAS, the Company and the Purchaser entered into that certain Common Stock Purchase Agreement, dated as of November 20, 2009 (the “Original Agreement”) pursuant to
which the Purchaser agreed to purchase 9,000,000 shares of the Company’s Common Stock for an aggregate purchase price of US$9,000,000, following satisfaction by each of the parties of the closing conditions contained in the Original Agreement.
WHEREAS, the Company and the Purchaser originally intended that the Closing would occur as contemplated on or before January 20, 2010 (the “Original Termination Date”).
WHEREAS, although the Purchaser has endeavored to fulfill the closing conditions set forth in the Original Agreement, the Purchaser is currently awaiting receipt of certain governmental authorizations as contemplated in Section 6.3 of
the Original Agreement.
WHEREAS, the Company has agreed to extend the Original Termination Date through March 31, 2010 to permit the Purchaser to obtain all governmental authorizations it is required to obtain prior to the Closing pursuant to Section 6.3 of
the Original Agreement.
WHEREAS, pursuant to Sections 8.1 and 16.5 of the Original Agreement, the Company and the Purchaser may amend the Original Agreement to extend the Original Termination Date by mutual written consent.
NOW, THEREFORE, in consideration of the mutual covenants contained in this Amendment and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the Company and the Purchase agree as follows:
1. All capitalized terms used but not defined herein shall have the meanings ascribed thereto in the Original Agreement.
2. The Original Agreement is hereby amended as follows:
2.1. Section 7 of the Original Agreement is hereby replaced in its entirety with the following:
“The parties agree to act with all deliberate speed to fulfill the conditions to the Closing set forth in Section 6 hereof, and to use all commercially reasonable efforts to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and
cooperate with the other party in doing, all things necessary, proper or advisable to consummate and make effective, in the most expeditious manner practicable, the Closing on or before March 31, 2010.”
2.2. Section 8.1(a) of the Original Agreement is hereby replaced in its entirety with the following:
“(a) at the election of the Purchaser or the Company on or after March 31, 2010, if the Closing shall not have occurred on or before such date, provided that the
party seeking termination is not in material default of any of its obligations hereunder, and the right to terminate this Agreement pursuant to this Section 8.1 shall not be available to the party seeking termination if its breach of any provision of this Agreement has been the cause of, or resulted, directly or indirectly, in, the failure of the Closing to be consummated on or before March 31, 2010.”
3. Except as amended and set forth above, the Original Agreement shall continue in full force and effect.
4. This Amendment may be executed in any number of counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Facsimile and e-mailed copies of
signatures shall be deemed to be originals for purposes of the effectiveness of this Amendment.
5. Each party irrevocably (i) agrees that any dispute or controversy arising out of, relating to, or concerning any interpretation, construction, performance or breach of this Amendment, shall be settled by arbitration to be
held in Hong Kong by the Hong Kong International Arbitration Centre in accordance with the UNCITRAL Rules then in effect and (ii) waives, to the fullest extent it may effectively do so, any objection which it may now or hereafter have to the laying of venue of any such arbitration. The decision of the arbitrator shall be final, conclusive and binding on the parties to the arbitration. Judgment may be entered on the arbitrator’s decision in any court having jurisdiction. The
parties to the arbitration shall separately pay for an equal share of the costs and expenses of such arbitration, and each party shall separately pay for its respective counsel fees and expenses; provided, however, that the prevailing party in any such arbitration shall be entitled to recover from the non-prevailing party its reasonable costs and attorneys fees.
每一方不可撤销地 (i) 同意任何因本修正案的解释、理解、履行或违反而引发的争议、争端，应由香港国际仲裁中心根据届时生效的UNCITRAL仲裁规则在香港通过仲裁解决，及 (ii) 最大限度地放弃其现在或将来可能会有的对于仲裁地点选择的反对意见。仲裁员的决?ㄊ侵站值模杂谥俨酶鞣接性际ΑＶ俨迷钡牟镁隹稍谌魏斡泄芟饺ǖ姆ㄔ撼侍霉┲ぁＶ俨酶鞣狡骄值Ｖ俨玫某杀竞涂В恳环蕉雷猿械Ｆ渥陨淼穆墒Ψ押涂В晃ㄇ疤崾侵俨弥惺に叻接腥ù影芩叻绞栈仄浜侠淼某杀竞吐墒Ψ选?/FONT>
6. This Amendment shall be governed and construed in accordance with the Laws of the State of New York, USA, without regard to the conflicts of laws principles thereof.
7. This Amendment is in the English language only. Any translation of this Amendment into Chinese or any other language is for convenience purposes only and shall not affect the meaning or interpretation hereof.
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of the date first written above.
|| Apollo Solar Energy, Inc.|
Bengbu Design & Research Institute for Glass Industry
/s/ Peng Shou
|| Name: Peng Shou|
|| Capacity: Legal Representative|