Exhibit 10.2


 


SHBV
(HONG KONG) LTD.


 


and


 


WASTE2ENERGY GROUP HOLDINGS PLC


 


 






 


STRATEGIC ALLIANCE AGREEMENT


 






 


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THIS AGREEMENT IS MADE ON THE 19TH DAY OF MAY     , 2010


 


PARTIES


 


(1)          SHBV (HONG KONG) LTD, a company incorporated in Hong
Kong whose registered office is at Unit 3208, 32/F Office Tower (“SHBV”); and Convention Plaza, 1 Harbour Rd, Hong Kong


 


(2)          WASTE2ENERGY GROUP
HOLDINGS PLC a company incorporated in Isle of Man whose registered
office is at Stanley House, Lord Street, Douglas, Isle of Man 1M1 2BF (“W2E”),


 


each
a “Party” and together the “Parties”.


 


BACKGROUND


 


(A)         SHBV is engaged in the business of design, marketing,
manufacture, commissioning and post sales servicing of steam and hot water
plant and possesses certain proprietary products, technologies, formulations,
know-how and/or rights within the fields of steam and hot water plant and
equipment, engineering, and process designs (hereinafter, “SHBV
Technologies”).


 


(B)          W2E is a provider of engineered solutions for waste to
energy plants (each being an “Engineered Solution”)
utilising W2E proprietary technology for the destruction of waste through
gasification and the conversion of latent energy into thermal energy.


 


(C)          The Parties wish to collaborate together to provide for a
world class manufacturing facility for W2E Equipment, for the integration of
SHBV Technologies into the Engineered Solution and to exploit joint sales
channels and post sales support, for the mutual benefit of both Parties.


 


(D)          The Parties wish to cooperate and work together to promote,
market and sell their respective products and services in accordance with the
terms of this Agreement.


 


AGREED
PROVISIONS


 


1.             DEFINITIONS AND
INTERPRETATION


 


1.1           In this Agreement, the terms and expressions below shall
have the following meanings:


 


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Affiliates means subsidiaries or other entities that will be
mutually agreed in writing.


 


Agreement means the body of this agreement and its schedules,
as each may be amended from time to time in accordance with its provisions;


 


Alliance means the strategic alliance between the Parties
facilitated under this Agreement;


 


SHBV Boiler means a boiler that is manufactured and supplied by
SHBV from time to time;


 


SHBV Technologies has the meaning given in Recital A
above;


 


Commencement Date means the date of this Agreement;


 


Dispute means any dispute, issue or claim arising out of or
relating to this Agreement;


 


Engineered Solution has the meaning given in
Recital B above;


 


Good Industry Practice means the exercise of that
degree of skill, diligence, prudence, foresight and practice which would
reasonably and ordinarily be expected from a skilled and experienced person
engaged in performing obligations the same as or similar to the obligations
under this Agreement or any part of them (as appropriate to the context in
which this expression is used);


 


Group means, in relation to any company, that company and
the following for the time being: (i) its Holding Company, (ii) its
Subsidiaries and (iii) the Subsidiaries of its Holding Company;


 


Holding Company has the meaning given in $1159 Companies Act
2006;


 


Intellectual Property Rights means (i) patents,
designs, trade marks and trade names (whether registered or unregistered),
copyright and related rights, database rights, know-how and confidential
information; (ii) all other intellectual property rights and similar or
equivalent rights anywhere in the world which currently exist or are recognised
in the future; and (iii) applications, extensions and renewals in relation
to any such rights;


 


Manufacturing Agreement has the meaning given in
clause 5.1;


 


Subsidiary has the meaning given to it in $1159 Companies Act
2006;


 


Supply Agreement means an agreement under which an Engineered
Solution is to be delivered to a customer of W2E by W2E or such other entity
established or nominated for that purpose;


 


Term has the meaning set out in Clause 3.1;


 


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Territory shall mean the world with the exception of the
following countries which are expressly reserved by W2E: Spain, Italy and
Canada.


 


Working Day means any day that is not a Saturday, a Sunday or a
bank or public holiday in England;


 


W2E Equipment means products, plant and equipment to be
manufactured pursuant to the Manufacturing Agreement and which may incorporate
W2E Technology, including as specified in Schedule 1 of this Agreement; and


 


W2E Technology means ‘W2E’s proprietary technology for the
destruction of waste through gasification and the conversion of latent energy
into thermal energy.


 


1.2          The Clause and Schedule headings are for convenience only
and shall not affect the interpretation of this Agreement.


 


1.3          References to Clauses are to Clauses in the main body of
this Agreement, and references to Paragraphs are to paragraphs of the
Schedules.


 


1.4          References to the singular include the plural and vice
versa, and references to one gender include the other gender.


 


1.5          Any reference to persons includes natural persons, firms,
partnerships, limited liability partnerships, companies, corporations,
unincorporated associations, local authorities, governments, states,
foundations and trusts (in each case whether or not having separate legal
personality) and any agency of any of the above.


 


1.6          Any phrase introduced by the expressions “including,” “include,”
“in particular” or any similar expression shall be construed as illustrative
and shall not limit the sense of the words preceding those terms.


 


1.7          Any reference to a statute, statutory provision or
subordinate legislation (legislation) (except where the context otherwise
requires) (i) shall be deemed to include any bye-laws, licences, statutory
instruments, rules, regulations, orders, notices, directions, consents or
permissions made under that legislation and (ii) shall be construed as
referring to any legislation which replaces, re-enacts, amends or consolidates
such legislation (with or without modification) at any time.


 


2.             OBJECTIVES


 


2.1 The Parties enter into this Agreement with the intention that they
meet the following key objectives (“Objectives”):


 


2.1.1       the achievement of
mutual business goals by the servicing of W2E customers;


 


2.1.2       the establishment of a Manufacturing Agreement, as that term
is hereinafter defined, for the ongoing manufacture and fulfilment of W2E
Equipment in accordance with the terms of W2E’s agreements with its customers.;


 


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2.1.3       the establishment of a waste heat recovery solution for W2E
proprietary equipment and a technical process for handling new enquiries;


 


2.1.4       the establishment of a pricing methodology and business
process for answering new business enquiries; and


 


2.1.5       the establishment of a cooperative relationship between the
Parties, with agreement on the roles, responsibilities, and specific terms and
conditions which will govern it.


 


2.2          The Parties
acknowledge and agree that the Objectives are not contractually binding upon
the Parties and shall only be referenced to the extent that there is any
inconsistency or ambiguity in this Agreement, in which case the Parties shall
attempt to resolve that inconsistency or ambiguity by having regard to the
Objectives.


 


3.             TERM


 


3.1          This Agreement shall commence on the Commencement Date and
shall continue for a term of ten (10) years, unless previously terminated
in accordance with Clause 15 (Termination).


 


4.            COOPERATION
OBLIGATIONS


 


4.1          Without
prejudice to the other provisions of this Agreement, each Party shall perform
its obligations under this Agreement in accordance with Good Industry Practice.


 


4.2          Each Party shall, during the course of its normal business,
use reasonable endeavours subject to the terms of this Agreement to:


 


4.2.1        promote and market the experience and capabilities of the
Parties in order to identify opportunities for W2E, such promotion and
marketing activities to be as agreed by the Parties from time to time;


 


4.2.2        identify, assess and communicate opportunities for W2E; and


 


4.2.3        undertake joint marketing initiatives and other marketing
activities which are mutually beneficial for the business interests of both
Parties and as shall be agreed by the Parties from time to time.


 


4.3          Each Party will provide cooperation, support, assistance
and information to the other Party in order to:


 


4.3.1       coordinate efforts to
seek to obtain work from the new or prospective customer;


 


4.3.2       promote and market the services of both Parties, including by
the development of standardised pricing, joint sales proposals and joint
marketing materials;


 


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4.3.3       where appropriate, form a consortium for the purposes of
undertaking joint pitches or presentations;


 


4.3.4       develop and agree to the pricing structure to be offered to
Customers from time to time, having regard to the cost of delivery and related
products and services, including the cost of raw materials, quality assurance,
volume, manufacturing overhead, G&A overhead and health and safety costs;
and


 


4.3.5       develop and agree to the pricing strategies (including a
hedging strategy where appropriate) to guard against significant variance in
product and service costs over the term of this Agreement as a result of
fluctuations in raw material prices, currency fluctuations, wage inflation and
other factors.


 


4.4          The Parties shall jointly collaborate on all aspects of the
Alliance (including in relation to technology for process and manufacture) and
shall convene regular meetings from time to time in order to discuss joint
activities and to give effect to the terms of this Agreement.


 


5.            SHBV OBLIGATIONS


 


5.1          SHBV agrees that it shall manufacture and supply to W2E (or
as it shall direct), W2E Equipment, in each case in accordance with the terms
of the manufacturing agreement (“Manufacturing Agreement”)
to be entered into by the Parties on or following the entry into this
Agreement.


 


5.2          SHBV agrees that it shall at the request of W2E, supply
(and if requested, install) SHBV Boilers, as well as primary chambers,
secondary chambers and economises (which SHBV agrees to manufacture and supply)
to such persons as W2E shall nominate, on the terms specified in or otherwise
agreed to by the Parties.


 


5.3          SHBV shall continually during the Term and from time to
time at W2E’s request, provide W2E with verbal and written technical and
business advisory assistance concerning SHBV Technologies where these would
integrate into an Engineered Solution as part of servicing W2E Customers. This
assistance shall include the development and provision of research, technical
papers, background information, product and process information, process and
equipment schematics, marketing presentations, capital cost information,
industry reports, pricing models, scientific data, project proposals,
technology evaluation, and preliminary project development services for any
proposed projects. This advisory assistance will be in outline only and
therefore to be considered not comprehensive detail.


 


5.4          SHBV shall from time to time at W2E’s request, perform and
provide to W2E project specific technical calculations and assessments needed
to support the delivery of an Engineered Solution for servicing W2E Customers..


 


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6.            W2E OBLIGATIONS


 


6.1          W2E agrees that it will use reasonable endeavours to
procure that a SHBV Boiler, and where applicable, a primary chamber, a
secondary chamber and an economiser (in each case as supplied by SHBV as
contemplated by Clause 5.2), forms part of the Engineered Solution implemented
for a W2E Customer within the Territory. W2E shall have no obligations under
this Clause where a W2E Customer elects for whatever reason not to include a
SHBV Boiler, a primary chamber, a secondary chamber or an economiser supplied
by SHBV as part of the Engineered Solution or directs W2E to utilise an
alternative product.


 


6.2          Without prejudice to the obligations of the Parties under
Clause 4, W2E shall be responsible, as it deems appropriate in relation to
individual projects and unless otherwise agreed in writing, for the following:


 


6.2.1        conceptual and front end engineering design (FEED) in order
to establish unknowns for customers and to establish a basis for plant design;


 


6.2.2        entering into construction and installation contracts for the
Engineered Solution as it sees fit;


 


6.2.3        the commissioning of waste2energy plants; and


 


6.2.4        the negotiation and entry into operations and maintenance
contracts in respect of waste to energy plants as customer demand requires.


 


6.3          W2E agrees that it shall use reasonable endeavours to
procure the right for SHBV to commission SHBV Boilers (and where applicable,
primary chambers, secondary chambers and economisers that are supplied by SHBV
as contemplated by Clause 5.2) that form part of the Engineered Solution.


 


7.            MANUFACTURING
AGREEMENT


 


7.1          The Parties agree that they shall on or following the date
of this Agreement, enter into the Manufacturing Agreement which shall govern
the manner and terms upon which they will co-operate and fulfil their
respective obligations to each other relating to the W2E Equipment and the SHBV
Technologies (including the quantity of SHBV Boilers, primary chambers,
secondary chambers and economisers that SHBV shall supply, their price and
timetable for delivery).


 


7.2          Each Party agrees to negotiate in good faith the terms of
the Manufacturing Agreement and to use its reasonable endeavours to enter into
said agreement within 1 DAY DN 20/5/2010 of the Commencement Date.


 


7.3          The Manufacturing Agreement shall take precedence over the
terms of this Agreement to the extent of any inconsistency.


 


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7.4          It is the intention of the Parties that W2E (or such other
entity that it shall nominate) shall be the prime contractor entering into
agreements with its customers, with SHBV acting as a subcontractor under the
Manufacturing Agreement for the responsibilities that fall to SHBV. The Parties
agree that it is the intention that they shall have the following
responsibilities to fulfil under their agreements with W2E Customer:


 


7.4.1        SHBV will be responsible for all engineering and design work
for the SHBV Technologies and related equipment that it supplies for any
applicable project;


 


7.4.2        W2E shall be responsible for all engineering and design work
for the W2E Technologies and related equipment that it supplies for any
applicable project; and


 


7.4.3        the Parties shall share responsibility for the preparation of
all reports, statements, proposals, applications, or disclosures, in relation
to their own technology supply which are required by applicable governmental
laws and/or regulations in order to implement any of the projects.


 


8.            NON-SOLICITATION


 


Each Party agrees that during the Term of
this Agreement and for a period of six (6) months thereafter it shall not,
without the prior written consent of the other Party, either on its own account
or through its employees or agents or otherwise or on behalf of any other
person, firm, company or other organisation and other than by general
advertising, solicit, interfere with, procure or entice away (or, in each case,
attempt so to do), either directly or indirectly, any employee or contractor of
the other Party.


 


9.            NON-CIRCUMVENTION


 


9.1   W2E agrees not to engage in business dealings, discussions, or
otherwise work directly with any third parties introduced to W2E through SHBV,
or to exploit any pre-existing relationship of SHBV with any third party that
has been represented to W2E by SHBV, without the prior consent and/or direct
participation of SHBV.


 


9.2   SHBV agrees not to engage in business dealings, discussions, or
otherwise work directly with any third parties introduced to SHBV through W2E,
or to exploit any pre-existing relationship of W2E with any third party that
has been represented to SHBV by W2E, without the prior consent and/or direct
participation of W2E.


 


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10.                               INTELLECTUAL PROPERTY RIGHTS


 


10.1                           Except as
expressly agreed otherwise in writing, all Intellectual Property Rights vested
in a Party prior to the date of this Agreement shall remain vested in that Party.
Further, any improvements, enhancements, modifications or developments to a
Party’s intellectual property shall automatically vest in that Party
irrespective of who generates the relevant improvement, enhancement,
modification or development.


 


10.2                           Each Party
grants to the other Party a non-exclusive, non-transferable, royalty-free
licence to use the other Party’s Intellectual Property Rights as far is
strictly necessary to comply with its marketing and promotional obligations
under this Agreement. For the sake of certainty, the licence created by this
Agreement does not extend to the use of the other Party’s Intellectual Property
Rights for any other commercial purpose.


 


10.3                           The licence
granted in Clause 10.2 above will automatically expire at the end of the Term
of this Agreement.


 


10.4                           Each Party shall
indemnify and keep indemnified the other Party against all costs, claims,
losses, expenses and damages incurred by the other Party as a result of any
breach of the provisions set out in this Clause 10 or arising directly or indirectly
out of any infringement by that Party of the other Party’s Intellectual Property
Rights.


 


11.                               CONFIDENTIALITY


 


11.1                           For purposes of
this Clause:


 


Authorised Persons means the directors,
employees, officers, professional advisers, agents and contractors of each
Party;


 


Confidential Information means all information in
any medium or format (written, oral, visual or electronic, and whether or not
marked or described as “confidential”), together with Copies, which relates to
a Party (the “Disclosing Party”), to its Group,
or to its (or its Group members’) employees, officers, customers or suppliers,
and which is directly or indirectly disclosed by the Disclosing Party to the
other Party (the “Recipient Party”)
in the course of its dealings relating to this Agreement, before or after the
date of this Agreement. However, the following information is not “Confidential
Information” for the purposes of this Agreement:


 


(i)                                     information
which is in the public domain other than as a result of breach of this
Agreement or any separate confidentiality undertaking between the Parties;


 


(ii)                                  information
which the Recipient Party received, free of any obligation of confidence, from
a third party which itself was not under any obligation of confidence in
relation to that information; and


 


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(iii)                               information
which was developed or created independently by or on behalf of the Recipient
Party or any member of the Recipient Party’s Group; and


 


Copies means all reproductions (hard copy or electronic),
extracts, summaries or analyses of Confidential Information in any medium or
format made by or on behalf of any Party.


 


11.2                           In return for
the disclosure by each Party of Confidential Information and for other
consideration given under this Agreement, each Party shall (except as expressly
permitted by this Agreement or with the written consent of the Disclosing
Party);


 


11.2.1                  keep all Confidential
Information secret;


 


11.2.2                  only use or make Copies of
Confidential Information in connection with and to  the extent necessary for the purposes of this
Agreement;


 


11.2.3                  take all reasonable action
to ensure that, within its organisation, the Confidential Information is not
made available to any person who is not an Authorised Person;


 


11.2.4                  use all reasonable
endeavours to ensure that Confidential Information within its control is kept
securely protected against theft or unauthorised access, and in any event shall
maintain its security, integrity and confidentiality to at least the same
standard as it applies to its own confidential information; and


 


11.2.5                  not reverse engineer, or
attempt to reverse engineer, any software comprised  within the Confidential Information, except
to the extent permitted by law.


 


11.3                           A Party may
disclose Confidential Information to any Authorised Persons on a “need-to-know”
basis solely in relation to the Agreement, provided that that Party:


 


11.3.1                  informs all Authorised
Persons that the Confidential Information is confidential;  and


 


11.3.2                  ensures that all Authorised
Persons (other than those already under a professional duty of confidence to
that Party or an obligation of confidence as part of employment arrangements)
enter into written confidentiality undertakings with it on equivalent terms to
this Clause, and provides copies of such undertakings to the other Party to
this Agreement upon that other Party’s reasonable request; and


 


11.3.3                  shall be responsible for all
acts and omissions of Authorised Persons as though they were its own acts or
omissions under this Agreement.


 


11.4                           Either Party
may disclose Confidential Information to a third party, provided that before
any such disclosure the express written consent of the other Party has been received
in writing and signed by a duly authorised signatory. Such consent lies in the
entire discretion of the Party owning the Confidential Information and


 


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without prejudice to that, the Party’s consent may be conditional upon
the third party entering into a confidentiality or non-disclosure agreement
with the owner of the Confidential Information prior to any disclosure being
made.


 


11.5                           Each Party
shall promptly notify the other Party if it becomes aware of any unauthorised
use or disclosure by any Authorised Person or any other person of any
Confidential Information.


 


11.6                           A Party may
disclose any Confidential Information to any regulator, law enforcement agency
or other third party if it is required to do so by law, regulation, or similar
authority. In those circumstances:


 


11.6.1                  that Party shall (provided
that it is practical and lawful to do so) notify the other Party in writing as
soon as practicable before the disclosure;


 


11.6.2                  the Parties shall use all
reasonable endeavours to consult with each other with a view to agreeing the timing,
manner and extent of the disclosure; and


 


11.6.3                  the Party required to
disclose shall in any event use all reasonable endeavours to obtain written
confidentiality undertakings in its favour from the third party.


 


11.7                           If the Party
required to disclose is unable to inform the Disclosing Party before Confidential
Information is disclosed, it shall (provided that it is lawful to do so) fully
inform the Disclosing Party immediately afterwards in writing of the circumstances
of the disclosure and the Confidential Information which has been disclosed.


 


11.8                           Nothing in this
Agreement or the disclosures envisaged by this Clause shall (except as
expressly agreed otherwise) operate to transfer any Intellectual Property
Rights in the Confidential Information.


 


11.9                           The
undertakings and other provisions of this Clause shall continue in force without
limit in time and shall survive termination of this Agreement, but shall cease
to apply to information which may enter the public domain otherwise than through
the unauthorised disclosure by or fault of the recipient of the Confidential Information
or by a person with whom such recipient is connected in any way.


 


11.10                     Each Party acknowledges that
damages alone would not be an adequate remedy in the event of breach by the
other Party of the provisions of this Clause. Accordingly, it is agreed that
either Party shall be entitled, without proof of special damages, to seek an
injunction or other interim remedy for any threatened or actual breach of this
Clause, without prejudice to any other rights and remedies which that Party may
have.


 


12.                               PUBLICITY


 


12.1                           The Parties
shall cooperate in any public relations or publicity exercises pertaining to
the Alliance, and agree to share with each other and coordinate the content and


 


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timing of press releases, prior to submission of such information for
public release. Unless specifically agreed in writing by the Parties (including
as to form and content) or required by law, by relevant regulations, or by a
relevant Stock Exchange, neither Party may make any public announcement
(including any press release) in respect of the subject matter of this
Agreement, its terms or its operation.


 


12.2                           Neither Party,
nor any of their respective customers, end-users, or licensees may use the name
or marks of the other Party in any way including in any advertising of products
or processes without the prior specific written authorization of that other
Party.


 


12.3                           Notwithstanding
Clauses 11 (Confidentiality) and this Clause 12:


 


12.3.1                  W2E may advise others of the
source of the SHBV Technology and the nature of the Alliance formed under this
Agreement; and


 


12.3.2                  each Party may disclose the
existence, but not the details, of this Agreement in a release to the general
public within thirty (30) days of the Commencement Date hereof.


 


2.4                                 Each Party
shall take all reasonable steps to ensure the observance of the  provisions of this Clause 12
by all employees, agents, subcontractors and consultants (including
professional advisers) of that Party.


 


13.                               WARRANTIES


 


13.1                           Each Party
hereby represents and warrants to the other Party that:


 


13.1.1                  all acts, conditions,
authorisations, consents (including shareholder or parent company consents) and
other things (including all licences and permits) required in order to enable
it lawfully to enter into, exercise its rights under or perform its obligations
under this Agreement and any other documents to be executed in connection with
it or to authorise the same, have been duly done, fulfilled, obtained and
performed and are in full force and effect; and


 


13.1.2                  neither the execution nor
the delivery nor the performance of this Agreement will:


 


13.1.2.1                     result in a breach of, or
constitute a default under, or require the consent of a person under, any
agreement or arrangement by which it is bound;


 


13.1.2.2                     conflict with its
constitutional documents/result in a breach of any provision of its memorandum
or articles of association; or


 


13.1.2.3                     result in a breach of any
law, regulation, order, judgement or decree of any court or government.


 


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13.2                           The express
provisions of this Agreement are in place of corresponding warranties,
conditions, terms, undertakings and obligations implied by statute, common law,
custom, trade usage, course of dealing or otherwise (including implied
undertakings of satisfactory quality, conformity with description and
reasonable fitness for purpose), all of which are hereby excluded to the maximum
extent permitted by law.


 


14.                               INDEMNITIES


 


14.1                             Each Party agrees to indemnify, hold and save harmless the other Party,
and defend at its own expense, from and against all suits, claims, demands and
liability of any nature and kind, including their cost and expenses, arising
from:


 


14.1.1                  the negligence; or


 


14.1.2                  any intentionally wrongful
acts or omissions, of the Party’s own employees, agents, affiliates or
subcontractors in connection with this Agreement.


 


15.                               TERMINATION


 


15.1                           Either Party
may (without prejudice to its other rights) terminate this Agreement  at any time by giving
written notice to the other Party if:


 


15.1.1                  the other Party
becomes unable to pay its debts (within the meaning of section 123 (l)(e) or
(2) of the Insolvency Act 1986), admits its inability to pay its debts or
becomes insolvent, or (ii) a petition is presented, an order made or a
resolution passed for the liquidation (otherwise than for the purposes of a
solvent amalgamation or reconstruction), administration, bankruptcy or dissolution
of the other Party, or (iii) an administrative or other receiver, manager,
trustee, liquidator, administrator or similar person or officer is appointed to
the other Party and/or over all or any part of the assets of the other Party,
or (iv) the other Party enters into or proposes any composition or
arrangement concerning its debts with its creditors (or any class of its
creditors) generally, or (v) anything equivalent to any of the events or
circumstances stated in (i) to (iv) inclusive occurs in any
applicable jurisdiction; or


 


15.1.2                  the other Party commits a
material or persistent breach of the provisions of this Agreement (a “Breach”),  provided that if
the Breach is remediable, the other Party shall be given thirty (30) days to
remedy the Breach from receipt of the first Party’s written notice specifying
the nature of the Breach and requesting that the same be remedied.


 


15.2                           Any termination
of the Agreement under Clause 15.1 above shall take effect either immediately
on receipt of written notice or at such other date as may be specified in the
written notice.


 


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15.3                           On termination
of this Agreement:


 


15.3.1                  each Party shall ensure that
all documentation and all information (including all  copies of such information stored in any
written or electronic form) which constitutes Confidential Information shall be
returned to the other Party forthwith; and


 


15.3.2                  each Party shall immediately
cease to use the other Party’s Intellectual Property  Rights and shall destroy or on request return
to the other all materials in its possession bearing the other Party’s trade
marks, logos, brand name and other intellectual property.


 


15.4                           The termination
of this Agreement for any reason whatsoever, or its expiry:


 


15.4.1                  shall not affect any
provision of this Agreement which by its very nature should survive or operate
in the event of the termination of this Agreement; and


 


15.4.2                  shall not prejudice or
affect the rights of either Party against the other in respect of any breach of
this Agreement or in respect of any monies payable by one Party to another in
respect of any period prior to termination.


 


15.5                           The parties may
terminate this Agreement at any time by mutual consent.


 


15.6                           Each party may
terminate this Agreement if in the 12 months period immediately prior to such
termination they fail to achieve the target annual business levels set out in
Schedule 2 of the Manufacturing Agreement between the Parties.


 


15.7                           Each party may
terminate this Agreement without liability if, despite their best efforts, the
parties fail to conclude the Manufacturing Agreement pursuant to Clauses 10 – 13
of this Agreement within one month from the date of this Agreement.


 


16.                               FURTHER ASSURANCE


 


16.1                           Each Party
shall at its own cost and expense carry out, or use all reasonable endeavours
to ensure the carrying out of, whatever further actions (including the
execution of further documents) the other Party reasonably requires from time
to time for the purpose of giving that other Party the full benefit of the
provisions of this Agreement.


 


17.                               ASSIGNMENT


 


17.1                           SHBV
acknowledges and agrees that W2E may from time to time establish or nominate a
separate entity for the purpose of entering into agreements with


 


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SHBV, in which case W2E shall have the right to require that SHBV’s
obligations under the Manufacturing Agreement (including warranties and
indemnities) and any project schedules to be given in favour of both W2E and
such entity.


 


18.                               ENTIRE AGREEMENT


 


18.1                           This Agreement
(together with the Manufacturing Agreement and any project  schedule entered into by the
Parties as contemplated herein) constitutes the entire agreement between the
Parties in relation to its subject matter, and replaces and extinguishes all
prior agreements, draft agreements, arrangements, undertakings, or collateral
contracts of any nature made by the Parties, whether oral or written, in
relation to such subject matter.


 


18.2                           Each Party
acknowledges that in entering into this Agreement it is not relying on, and
shall have no rights or remedies (whether in tort, under statute or otherwise)
in respect of any statements, collateral or other warranties, assurances,
undertakings or representations (whether innocently or negligently made) by any
person or entity in relation to the subject-matter of this Agreement, except
for those rights and remedies available under this Agreement.


 


18.3                           Nothing in this
Clause shall exclude or restrict the liability of either Party arising out of
fraud, fraudulent misrepresentation or fraudulent concealment.


 


19.                               DISPUTE RESOLUTION


 


19.1                           The Parties
agree to co-operate with each other in an amicable manner with a view to
achieving the successful implementation of this Agreement.


 


19.2                           If a Dispute
arises it shall first be referred to the Managing Director (or equivalent) of
SHBV and the Managing Director (or equivalent) of W2E for resolution.


 


19.3                           If the Parties
are unable to resolve a Dispute within ten (10) Working Days of its
referral to the Managing Director (or equivalent) of SHBV and the Managing
Director (or equivalent) of W2E referred to in Clause 19.2 above, then the
Parties will attempt to settle it by mediation in accordance with the Centre
for Effective Dispute Resolution (“CEDR”)’s  Model
Mediation Procedure and the following shall prevail in the event of a conflict
with that procedure:


 


19.3.1                  the mediation shall be
conducted by a single mediator who shall be appointed by agreement in writing
between the Parties or, if the Parties are unable to agree on the identity of
the mediator within ten (10) Working Days of the date of the request that
the Dispute be determined by a mediator, or if the mediator appointed is unable
or unwilling to act, shall be appointed by the CEDR;


 


15

















 


19.3.2                  the mediation shall be
conducted in London and in the English language;


 


19.3.3                  the mediation shall be
conducted in private and without prejudice to the rights of the Parties in any
future proceedings; and


 


19.3.4                  the mediation shall be held
within thirty (30) Working Days of the appointment of the mediator pursuant to
Clause 19.3.1 above.


 


19.4                           Nothing in this
Clause shall prejudice the right of either Party to:


 


19.4.1                  apply to Court for interim
relief to prevent the violation by a Party of any  proprietary interest, or any breach of either
Party’s obligations which could cause irreparable harm to the other Party; or


 


19.4.2                  to bring proceedings
intended to result in the enforcement of a settlement agreement or of a binding
determination of a dispute between the Parties.


 


20                                  NOTICES


 


20.1                           Except as
otherwise expressly provided, any notice or other communication from either
Party (“Sender”) to the other Party (“Recipient”) which is required to be given under this
Agreement (“Notice”) must be in writing (which
for these purposes excludes e-mail), signed by or on behalf of the Sender, and
be addressed to the officer of the Recipient whose details are set out in
Clause 20.3 below.


 


20.2                           The Sender may
either:


 


20.2.1                  deliver the Notice, or
arrange for its delivery, by hand and retain satisfactory proof  of delivery; or


 


20.2.2                  send the Notice by fax and
retain a successful fax transmission report recording the correct number of
pages; or


 


20.2.3                  send the Notice by recorded
delivery or registered post and retain a receipt of delivery or sending; or


 


20.2.4                  send the Notice by
registered airmail if it is to be served by post outside the country from which
it is sent and retain a receipt of sending.


 


20.3                           The details of
the Parties for the purpose of Notices are as follows:


 


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  SHBV

  	
   

  
	
   

  	
   

  
	
  For
  the attention of:

  	
  Managing
  Director

  
	
   

  	
   

  
	
  Address:

  	
   

  
	
   

  	
   

  
	
  With copy to:

  	
  Managing
  Director,

  
	
   

  	
   

  
	
  Telephone
  number:

  	
   

  
	
  Fax
  number:

  	
   

  
	
   

  	
   

  
	
  W2E

  	
   

  
	
   

  	
   

  
	
  For
  the attention of: 

  	
  Mr
  John Murphy

  
	
   

  	
   

  
	
  Address:

  	
  Dargavel
  Stores, Lockerbie Road, Dumfries,

  
	
   

  	
  DG1
  3PG

  
	
   

  	
   

  
	
  Telephone
  number: 

  	
  [Insert
  details]

  
	
   

  	
   

  
	
  Fax
  number:

  	
  [Insert
  details]

  



 


Each Party may alter the above details that relate
to it and shall promptly notify the other of any such change by a Notice in
accordance with this Clause.


 


20.4                           Any Notice
shall be deemed to have been served:


 


20.4.1                  if delivered by hand, at the
time and date of delivery;


 


20.4.2                  if sent by fax, at the time
and date of the successful fax transmission report;


 


20.4.3                  if sent by recorded delivery
or registered post, 48 hours from the date of posting  (such date as evidenced by
postal receipt etc); or


 


20.4.4                  if sent by registered
airmail, five days from the date of posting. 


 


21                                  GENERAL


 


21.1                        Variations
only in writing


 


21.2                           No variation of
or amendment to this Agreement (including its Schedules) shall be effective
unless made in writing and signed by or on behalf of both Parties or by their
duly authorised representatives.


 


21.3                        Remedies
cumulative


 


21.4                           The rights,
powers and remedies provided in this Agreement are (except as expressly
provided) cumulative and not exclusive of any rights, powers and remedies
provided by law, or otherwise.


 


17

















 


21.5                      No
partnership or agency


 


21.5.1                  Nothing in this Agreement
shall (except as expressly provided) be deemed to constitute a partnership, or
create a relationship of principal and agent for any purpose between the
Parties.


 


21.5.2                  Any statement or
representation made by either Party shall not be binding on the  other unless agreed
otherwise agreed in writing and neither Party shall be liable to any third
party for any loss or damages arising out of such statements or  representations.


 


21.6                        No waiver


 


21.7                           The failure to
exercise, or delay in exercising, a right, power or remedy provided by this
Agreement or by law shall not constitute a waiver of that right, power or
remedy. If a Party waives a breach of any provision of this Agreement this
shall not operate as a waiver of a subsequent breach of that provision, or as a
waiver of a breach of any other provision.


 


21.8                        Costs
of each of the Parties


 


21.9                           Each Party
shall bear its own costs and expenses in connection with the preparation,  negotiation, and execution
of the Agreement.


 


21.10                 Third
Party Rights


 


A person who is not a party to this Agreement may not enforce any of
its provisions under the Contracts (Rights of Third Parties) Act 1999.


 


21.11                 Counterparts
/ Execution of Agreement


 


21.12                     This Agreement may be
entered into by the Parties in any number of counterparts. Each counterpart
shall, when executed and delivered, be regarded as an original, and all the
counterparts shall together constitute one and the same instrument. This
Agreement shall not take effect until it has been executed by both the Parties.
This Agreement may be validly exchanged and delivered by fax.


 


21.13                 Severability


 


21.13.1            If any Clause, or part of a
Clause, of this Agreement, is found by any court or administrative body of
competent jurisdiction to be illegal, invalid or unenforceable, and the
provision in question is not of a fundamental nature to the Agreement as a
whole, the legality, validity or enforceability of the remainder of this
Agreement (including the remainder of the Clause or sub Clause which contains
the relevant provision) shall not be affected.


 


21.13.2            If the foregoing applies,
the Parties shall use all reasonable endeavours to agree within a reasonable
time upon any lawful and reasonable variations to the


 


18

















 


Agreement which may be necessary in order to achieve, to the greatest
extent possible, the same effect as would have been achieved by the Clause, or
the part of the Clause, in question.


 


22                                  GOVERNING
LAW


 


22.1                           This Agreement
is governed by English law.


 


22.2                           The Parties
submit to the non-exclusive jurisdiction of the courts of England and Wales.


 


This
Agreement shall come into force on the date given at the beginning of this
Agreement.


 


 


	
  SIGNED
  by 

  	
  

  	
   

  	
  )

   

   

  )

  
	
  (name),

  	
   

  	
   

  
	
   

  	
   

  	
   

   

   

  )

  	
  

  
	
  a
  duly authorised signatory of

  	
   

  	
  )

  	
  (signature)

  
	
  SHBV
  (HONG KONG) LTD

  	
   

  	
   

  
	
   

  	
   

  	
  )

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SIGNED
  by 

  	
  

  	
   

  	
   

  )

   

   

   

  )

  
	
  (name),

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  )

  
	
  a
  duly authorised signatory of

  	
   

  	
  )

  	
  (signature)

  
	
  WASTE2ENERGY
  GROUP HOLDINGS PLC 

  	
   

  	
  )
  

  



 


19