SHARE TRANSFER CONTRACT For LIAONING SHENGSHENG BIOTECHNOLOGY CO., LTD. CONTENTS
Exhibit 2.1
CONTENTS
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Chapter
I Definitions
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3
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Chapter
II Transfer of Transfer Shares
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5
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Chapter
III Representations and Warranties by All Parties
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7
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Chapter
IV Disclosures, Representations and Warranties by
Transferors
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8
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Chapter
V Disclosures, Representations and Warranties by
Transferee
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9
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Chapter
VI Employees
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10
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Chapter
VII Confidentiality
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10
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Chapter
VIII Breach of Contract
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11
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Chapter
IX Force Majeure
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12
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Chapter
X Resolution of Disputes
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13
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Chapter
XI Applicable Law
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14
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Chapter
XII Miscellaneous
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14
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1
This
Share Transfer Contract (hereinafter referred to as “this Contract”) is executed by
the following Parties on April 28, 2009.
Party A:
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(1)
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▇▇▇▇
▇▇▇▇▇▇▇
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(2)
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Zhang
Jun
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(3)
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▇▇
▇▇▇
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(4)
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Zhang
Baojian
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(5)
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Lu
Aiqing
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(6)
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Li
Jinbao
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(7)
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Zhang
Yansong
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(8)
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▇▇▇▇▇
▇▇▇▇
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(9)
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Wu
Lanfeng
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(10)
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▇▇▇▇
▇▇▇▇▇▇▇▇
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(11)
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Zhao
Yaomei
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(12)
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Na
Ningxin
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(13)
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▇▇▇
▇▇▇
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(14)
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Lv
Xing, ( the “Transferors”)
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(15)
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Party B: China For-Gen Corp.,
a corporation incorporated under the law of Delaware, the United
States (the “Transferee”).
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WHEREAS:
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(1)
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Party
A together owns 100% shares of Liaoning Shengsheng Biotechnology Co.,
Ltd., and can exercise all of its full rights as
shareholders;
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(2)
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Transferors
are willing to transfer all the aforesaid shares (hereinafter referred to
as “Transfer
Shares”);
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2
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(3)
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Transferee
is willing to acquire the Transfer Shares subject to the terms and
conditions set out in this Share Transfer
Contract.
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For this
purpose, after friendly consultations, on the principles of equality and mutual
benefit, all Parties to this Contract have reached the following agreements in
accordance with relevant laws and regulations of China.
Chapter
I Definitions
Article
1 Definitions
Unless
otherwise prescribed and stipulated, the following terms used in this Contract
shall have the meanings set forth as follows:
“Affiliate” means, as for any
of the Parties, any corporation directly or indirectly controlled by such Party
or controlling such Party or under the same control with such Party; “control”
means ownership of 50% or more voting shares or registered capital, or the right
to appoint or elect majority of the directors of a corporation.
“New Articles of Association”
means the new Articles of Association of WFOE after the share transfer pursuant
to this Contract is approved by the Examination and Approval
Authority.
“the PRC” or “China” refers to the People’s
Republic of China, and insofar as this Contract is concerned, shall exclude Hong
Kong, Taiwan and Macao.
“Claims” means claims, actions,
demands, proceedings judgments liabilities, damages amounts, costs and expenses
(including attorney fees and disbursements) whatsoever and howsoever
arising.
“Signing Date” means the date
on which this Share Transfer Contract is signed.
“Approval Date” means the date on which
this Contract and the New Articles of Association are approved by the
Examination and Approval Authority.
3
“Encumbrance” means any
mortgage, assignment, lien, charge, pledge, title retention, right to acquire,
security interest, option, pre-emptive right, and any other restriction or
conditions whatsoever including:
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(i)
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any
interest or right granted or reserved in or over or affecting the Transfer
Shares for Transfer; or
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(ii)
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the
interest or right created or otherwise arising in or over the Transfer
Shares for Transfer under a fiduciary transfer, charge, lien, pledge,
power of attorney or other form of encumbrance; or
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(iii)
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any
security over the Transfer Shares for Transfer for the payment of a debt
or any other monetary obligation or the performance of any other
obligation.
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“Examination and Approval Authority”
competent
government authority which has power and authority to examine and approve this
Contract and the New Articles of Association and transfer of Transfer Shares
contemplated in this Contract.
“WFOE” refers to Liaoning
Shengsheng Biotechnology Co., Ltd. after complement of share transfer under this
Contract.
“Managements” means the general
manager, vice general mangers and CFO (or such positions with other title) and
other managements who directly report to the general manager.
“RMB” or “Renminbi” refers to the legal
currency of the PRC.
“Third Party” refers to any
natural person, legal entity, or other organization or entity, other than the
parties to this Contract.
“US Dollar” or “US$” means the
legal currency of the United States of America.
4
“Working Day” refers to the
days on which the banks in Liaongning open for business.
Chapter II Transfer
of Transfer Shares
Article
2 Transfer of Transfer
Shares
Pursuant
to the terms stipulated in this Contract, Transferors agree to transfer to
Transferee and Transferee agrees to accept from Transferors the Transfer Shares
with all the rights and obligations of and attaching to the Transfer Shares, but
free of any Claims or Encumbrances.
Article
3 Transfer
Price
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3.1
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Transferors
and Transferee agree that the Transfer Price for the transfer of the
Transfer Shares shall refer to the assessed value of the Transfer
Shares. Transferors and
Transferee after consultations have finally determined that the price for
the Transfer Shares shall be agreed at USD 5,120, 000 (hereinafter
referred to as the “Transfer
Price”).
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3.2
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Transferee
shall pay the aforesaid Transfer Price in RMB or its US Dollar equivalent
to Transferors.
Transferors and Transferee have agreed that the conversion rate used to
determine the Transfer Price in US Dollars shall be the middle rate of
Renminbi with US Dollar announced by the People’s Bank of China on the
previous date of Closing Date (as defined in Article
5.1).
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3.3
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Any
expenses occurred during the audit and asset evaluation pursuant to clause
3.1 of this Contract shall be borne by the
WFOE.
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5
Article
4 Pre-requisite Conditions for
the Payment of the Transfer Price
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4.1
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Under
this Contract, the pre-requisite conditions for the payment of the
Transfer Price by Transferee are: this Contract, the New Articles of
Association and the transfer of the Transfer Shares stipulated in this
Contract have been approved in writing by the Examination and Approval
Authority.
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4.2
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In
the event that any of the conditions set out in Article 4.1 have not been
satisfied or implemented, and Transferee has not indicated its waiver of
the said conditions or any one of them, in writing, Transferee shall not
be obliged to pay the Transfer Price to
Transferors.
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Article
5 Closing
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5.1
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Transferee
shall, within thirty (30) Working Days after Transferee has received all
the requisite approval documents issued by the Examination and Approval
Authority as stipulated in Article 4, make the full payment of the
Transfer Price into the accounts designated by Transferors. The day
that the Transferee pays the Transfer Price shall be the Closing
Date.
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5.2
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Transferors
shall issue to Transferee the evidential document of the payment received
within five (5) Working Days.
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5.3
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Transferors
and Transferee shall forthwith take all necessary steps to complete the
procedures for the closing of the transfer of Transfer Shares to
Transferee within thirty (30) Working Days after the Closing
Date.
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Article
6 Taxes Payable under the
Transfer of Transfer Shares
Any taxes
or fees arising out of and payable pursuant to the fulfilment of the terms of
this Contract by each of Transferors and Transferee
shall be payable by the respective Party according to relevant laws and
regulations of China.
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Chapter III Representations
and Warranties by All Parties
Article
7 Representations and
Warranties by All Parties
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7.1
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Transferors
and Transferee hereby confirm that as of the Signing Date this Contract
shall be a document having legal binding effect on all
Parties.
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7.2
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Each
Party hereby confirms that the documents and information provided to any
other Party prior to the Signing Date are still valid and authentic and
confirm that where there are discrepancies therein with the terms of this
Contract, this Contract shall
prevail.
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7.3
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All
Parties hereby agree that, any Party shall have right to alter its
authorized representative effective upon the delivery of a notice
regarding such altering to other
Parties.
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7.4
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All
Parties hereby agree that the contracts or documents pertaining to the
share transfer entered into between all Parties prior to this Contract
shall upon this Contract coming into effect lapse
automatically.
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7.5
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After
the Closing Date, all rights and obligations of Transferors over the
Transfer Shares shall be entirely transferred to
Transferee.
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Chapter
IV Disclosures,
Representations and Warranties by Transferors
Article
8 Disclosures, Representations
and Warranties by Transferors
Transferors
hereby jointly represent and warrant to Transferee that:
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8.1
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All
information and facts relating to Liaoning Shengsheng Biotechnology Co.,
Ltd. that is in the possession of Transferors or is known to any of
Transferors which will have a substantive and adverse effect on
Transferors’ ability to fulfil any of its obligations in this Contract or
when disclosed to Transferee shall have a substantive effect on the
willingness of Transferee to sign and fulfil its obligations under this
Contract, have been disclosed to Transferee and the information provided
by Transferors to Transferee does not contain any representation that is
untrue or misleading.
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8.2
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No
lawsuits, arbitrations, or other legal or administrative proceedings or
governmental investigations are on-going against Transferors that will
materially affect its ability to sign this Contract or fulfil its
obligations under this Contract.
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Article
9 General Representations and
Warranties by Transferors
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9.1
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Signing
this Contract and fulfilling all of their obligations stipulated herein by
the Transferors shall not contravene or result in the violation of or
constitute a failure to fulfil or an inability to fulfil any of the
stipulations in any laws, regulations, stipulations, any authorization or
approval from any government body or department or the stipulations of any
contract or agreement that any of the Transferors is a party to or is
bound by.
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Article
10 Ownership
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10.1
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Transferors
are the legal owners of the Transfer Shares and have full authority and
right to transfer the Transfer Shares to
Transferee.
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10.2
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Transferors
hereby jointly undertake and warrant up to and including the Closing Date
that the Transfer Shares is not subject to any Claims or Encumbrances
(including but not limited to any form of option, acquisition right,
mortgage, pledge, guarantee, lien or any other form of third party
rights); and there is no interest present and no agreement or undertaking
in existence that may result in or create any Claim or Encumbrance on the
Transfer Shares (including but not limited to the aforesaid option,
acquisition right, mortgage, pledge, guarantee, lien or any other form of
third party rights and interest).
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Chapter
V Disclosures,
Representations and Warranties by Transferee
Article
11 Disclosures, Representations
and Warranties by Transferee
Transferee
hereby represents and warrants to Transferors that:
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11.1
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Transferee
is a legal entity that has been duly established according to the laws of
Delaware, United States and it is validly and legally in existence and
also operating normally.
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11.2
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Transferee
in signing this Contract and fulfilling all of its obligations stipulated
herein shall not contravene or result in the violation of or constitute a
failure to fulfil or an inability to fulfil any of the stipulations of
Transferee’s Articles of Association or its internal rules, any laws,
regulations, stipulations, or any authorizations or approvals from any
government body or department or any contract or agreement that Transferee
is a party to or is bound by.
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11.3
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No
lawsuits, arbitrations, or other legal or administrative proceedings or
governmental investigations are on-going against Transferee that will
materially affect its ability to sign this Contract or fulfil its
obligations under this Contract.
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11.4
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The
Transferee covenants that, before complete the payment of all Transfer
Price and the procedures of transfer of the Transfer Shares, it will not
transfer or pledge all or part of the Transfer Shares to any other third
party.
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9
Chapter
VI Employees
Article
12 Employees
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12.1
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All
existing staff and workers of WFOE shall upon the completion of the
transfer of the Transfer Shares be employed by WFOE. The terms and
conditions of their employment including their remuneration for their
employment shall be implemented in accordance with the stipulations of the
labour laws and regulations for foreign invested enterprises of
China.
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12.2
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The
WFOE shall protect the legal interests of employees and use its best
efforts to maintain relative stability of the
Managements.
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Chapter
VII Confidentiality
Article
13 Confidentiality
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13.1
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All
Parties agree unless otherwise provided for in another relevant
confidentiality agreement that with regard to the confidential and
exclusive information that have been disclosed to or may be disclosed to
the other Parties by any Party to this Contract pertaining to their
respective businesses, or financial situations and other confidential
matters, all Parties to this Contract which have received the aforesaid
confidential information (including written information and non-written
information, hereinafter referred to as “Confidential
Information”) shall:
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13.1.1
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Keep the aforesaid Confidential Information confidential; |
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13.1.2
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Save
for the disclosure of the Confidential Information by a Party to this
Contract to its employees solely for the performance of their duties and
responsibilities, neither Party to this Contract shall disclose the
Confidential Information to any Third Party or any
entity.
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13.2
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The
provisions of the aforesaid Article 13.1 shall not apply to Confidential
Information:
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13.2.1
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which
was available to the receiving Party from the written record before the
disclosing Party disclosed the information to the receiving Party and the
written record can prove that the confidential information was already
known to the receiving Party;
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13.2.2
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which
has become public information by means not attributable to any breach by
the receiving Party;
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13.2.3
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which
was obtained, by the receiving Party from a Third Party not subject to any
confidentiality obligation affecting the said Confidential
Information.
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13.3
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As
far as any natural person or legal entity which is a Party to this
Contract is concerned, notwithstanding that it has ceased to be a Party to
this Contract because of the transfer of its rights and obligations
pursuant to the terms of this Contract, the stipulations set out in this
Chapter VII shall remain binding on
it.
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10
Chapter
VIII Breach
of Contract
Article
14 Liability for Breach of a
Representation or Warranty
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14.1
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If
any representation or warranty made by any Party to this Contract is found
to be a material error, or if any fact that has or is likely to have a
major or substantial effect on the signing of this Contract by any Party
has been omitted, or if any representation or warranty is found to be
misleading or untrue in any material respect, the non-breaching Party
shall be entitled to look to the Party (ies) in breach for full
compensation for any loss, damage, cost or expense arising from the
erroneous, misleading or untrue representation or warranty of the Party
(ies) in breach or arising from any other breach of any representation and
warranty given by the Party (ies) in
breach.
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14.2
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Each
representation and warranty set out in Chapter III, Chapter IV and Chapter
V is to be construed independently.
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Article
15 Liability for Breach of
Contract
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15.1
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In
the event of a breach committed by any Party to this Contract, the said
defaulting Party shall be liable to the other Party (ies) for the losses
and damages or any other liabilities arising out of that defaulting
Party’s breach of contract in accordance with the provisions of this
Contract and the laws and regulations of
China.
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15.2
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Notwithstanding
the provisions of Article 15.1, no Party shall be liable to the other
Party (ies) for any indirect losses or consequential damages attributable
to any breach under this Contract.
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Chapter
IX Force
Majeure
Article
16 Force
Majeure
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16.1
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“Force
Majeure” refers to all incidents that are unforeseeable at the execution
of this Contract and their occurrence and consequences cannot be avoided
or overcome by the taking of reasonable steps by the Party affected
thereby and they hinder the affected Party from fulfilling all of or a
material part of this Contract. The aforesaid Force Majeure incidents
shall include earthquake, typhoon, flood, fire, war, political unrest and
such special incidents or events that are deemed to be Force Majeure
occurrences under the provisions of the relevant laws and regulations of
China. Provided always that the Parties agree that when a Party is short
of funds, such event shall not be a Force Majeure event for the purposes
of this Contract.
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16.2
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In
the event of the occurrence of a Force Majeure event, the obligations of
the Party to this Contract affected by this Force Majeure event shall
cease during the period of the Force Majeure event and any term or period
set out in this Contract and to which the affected party is subject shall
automatically be extended by a period equal to the term or period of the
Force Majeure event, the period of extension shall be the same as the
period of cessation of the obligations by reason of the Force Majeure
event, and the said Party shall not be liable for any losses and damages
or any other liabilities arising out of a breach of contract as provided
for in this Contract for the duration of the Force
Majeure.
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16.3
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The
Party claiming the occurrence of a Force Majeure event shall promptly
inform the other Party (ies) in writing, and within seven (7) days
thereafter, it shall provide sufficient evidence (issued by the notary
organization) of the occurrence and the continuity of the Force Majeure
event. It shall also do its best to eliminate the adverse effect of the
Force Majeure event.
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16.4
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In
the event of the occurrence of a Force Majeure event, the Transferors and
the Transferee shall promptly settle through friendly consultation to seek
the fair resolution and shall make best effort to reduce the consequence
to the minimum level. Provided that the major encumbrance to the
performance of this Contract continues more than six (6) months as a
result of the occurrence or consequence of a Force Majeure and the Parties
can not find the fair resolutions, the other Party shall have right to
notify the other Party to cease this Contract and shall not be liable for
any losses and damages or any other liabilities arising out of a breach of
contract.
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12
Chapter
X Resolution
of Disputes
Article
17 Arbitration
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17.1
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Any
dispute arising out of this Contract between the Parties to this Contract
shall firstly be resolved through friendly consultation. In the event that
sixty (60) days after the commencement of the friendly consultations, the
dispute cannot be resolved through such means, either Party may submit the
dispute to the China International Economic and Trade Arbitration
Commission in Beijing for arbitration in accordance with its prevailing
valid arbitration rules.
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17.2
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The
arbitration tribunal shall be constituted by three (3) arbitrators who
shall have a good knowledge of both English and Chinese Languages. Each
Party shall have the right to designate an arbitrator and the third
arbitrator shall be designated by the Parties together. If the Parties can
not agree with the third arbitrator, such arbitrator then shall designated
by the Chairman of China International Economic and Trade
Arbitration Commission and shall be appointed the chief arbitrator of the
arbitration tribunal.
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Article
18 Validity of the Arbitration
Award
The
arbitration award shall be final and shall be binding on all Parties to this
Contract. All Parties to this Contract agree to be bound by the said award, and
to act according to the terms of the said award.
Article
19 Fees
All the
arbitration fees shall be borne by the losing party unless otherwise awarded by
the tribunal.
Article
20 Continuation
of Rights and Obligations
After a
dispute has arisen and during its arbitration process, other than the disputed
matter, all Parties to this Contract shall continue to exercise their other
respective rights stipulated in this Contract, and shall also continue to fulfil
their other respective obligations stipulated in this Contract.
13
Chapter
XI Applicable
Law
Article
21 Applicable
Law
The laws
and regulations of the PRC shall govern and be binding on the establishment,
validity, interpretation and execution of this Contract. All disputes arising
out of this Contract shall be determined according to the laws of the PRC. In
the event the laws of the PRC do not make provision for a certain issue relating
to this Contract, reference shall be made to general international business
practice.
Chapter
XII Miscellaneous
Article
22 Waiver
The
non-exercise or delay in the exercise of an entitlement stipulated in this
Contract by any Party to this Contract shall not be regarded as a waiver of the
said entitlement. Any single exercise or partial exercise of an entitlement
shall not rule out any future re-exercise of the said entitlement.
Article
23 Transfer
Unless
otherwise described and prescribed in this Contract, neither Party to this
Contract shall transfer or assign all or any part of this Contract or transfer
or assign that Party’s entitlement or obligations as stipulated in this
Contract.
Article
24 Amendment
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24.1
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This
Contract has been executed for the benefit of all Parties to this Contract
and their respective lawful successor(s) and assignees, and shall have
legal binding effect on them.
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24.2
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This
Contract may not be amended verbally. Only a written document signed by
all Parties indicating their consent to such amendment shall be effective,
and where approval is required by law, only with the written approval of
the Examination and Approval Authority shall any amendment to this
Contract become effective.
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Article
25 Severability
The
invalidity of any term in this Contract shall not affect the validity of the
other terms in this Contract.
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Article
26 Effectiveness
The
Contact shall be binding on the Parties hereof as of the execution of this
Contract and shall be effective as of the date of obtaining the approval of the
the Examination and Approval Authority.
Article
27 Language
This
Contract is written in Chinese.
Article
28 Validity of the Text and
Appendix
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28.1
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The
Chinese text of this Contract shall be signed in four (4) sets of original
and there (3) sets of duplicate copies. Each Party shall each hold one (1)
set of original and one (1) set of duplicate, and one (1) set of original
each shall be sent to the Examination and Approval Authority and the
competent Industry and Commerce Administrative Department and one (1) set
of duplicate copy shall be kept on file by the
WFOE.
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28.2
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The
Appendix to this Contract shall form an integral part of this Contract,
and shall have the same effect as this
Contract.
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Article
29 The Entire
Agreement
This
Contract constitutes the entire agreement of all Parties to this Contract
pertaining to the transaction agreed upon in this Contract, and shall replace
all the previous discussions, negotiations and agreements among all Parties to
this Contract in respect of the transaction of this Contract.
15
IN
WITNESS WHEREOF, the duly authorised representatives of the Transferors and the
Transferee have signed this Contract on the date first above
written.
Transferors:
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇
▇▇▇▇▇▇▇
/s/ Zhang ▇▇▇
▇▇▇▇▇
Jun
/s/ ▇▇ ▇▇▇
▇▇
▇▇▇
/s/ Zhang ▇▇▇▇▇▇▇
▇▇▇▇▇
Baojian
/s/ Lu ▇▇▇▇▇▇
▇▇
Aiqing
/s/ Li Jinbao
Li
Jinbao
/s/ Zhang ▇▇▇▇▇▇▇
▇▇▇▇▇
Yansong
/s/ Zhang ▇▇▇▇
▇▇▇▇▇
Jian
/s/ Wu ▇▇▇▇▇▇▇
▇▇
Lanfeng
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇
▇▇▇▇▇▇▇▇
/s/ Zhao ▇▇▇▇▇▇
▇▇▇▇
Yaomei
/s/ Na Ningxin
Na
Ningxin
/s/ Gao ▇▇▇
▇▇▇
Wei
/s/ Lv Xing
Lv
Xing
Transferee:
/s/ ▇▇▇▇▇▇ ▇▇
Name:
▇▇▇▇▇▇ ▇▇
Title:
President
16