Exhibit 10.1
Thelen Translation (10-10-2008)
Equity Transfer Agreement
This Equity Transfer
Agreement is entered into
as of October 10, 2008 in Xi'an by and between the following
parties:
Transferor: Fan
Qingchun (hereinafter the
" Transferor " )
The Transferor is an individual
residing in the People's Republic of China with the ID card No.
412901196912053094 and his address is Room 508, Building 2,
Suojinsicun, Xuanwu District, Nanjing City.
The Transferee: Shandong
Taibang Biological Products Co., Ltd. (hereinafter, the " Transferee "
)
The Transferee has been
established in the People's Republic of China with the business
license code Qi He Lu Tai Zong Zi No. 000689, and its registered
address is No. 14 Hushandong Road, Tai'an City, Shandong
Province.
Whereas:
1.
Xi'an Huitian Blood Products Co.,
Ltd. (hereinafter, the " Xi'an Huitian "),
established by the Transferor and Shaanxi Power Construction
Corporation (hereinafter, the " Shaanxi Power
Construction "), is a limited liabilities company duly
established and lawfully existing. Xi'an Huitian was established on
October 17, 1996. Its Business License Number is 610131100005945
and the domicile is at No. 9, Guangde Road, Xi'an Hi-Tech
Industries Development Zone. Its registered capital is RMB
51,000,000 and its enterprise form is limited liabilities
company.
2.
The Transferor is a lawful
shareholder of Xi'an Huitian and his capital contribution in the
registered capital of Xi'an Huitian is RMB17,850,000, holding 35%
of the equity interest in Xi'an Huitian (hereinafter, the "
Subject Equity Interests ").
3.
The Transferor proposes to transfer
such Subject Equity Interests to the Transferee so that the
Transferee would finally hold 35% of the total equity interest in
Xi'an Huitian, and the Transferee agrees to accept such
transfer.
1
4.
The Transferor holds lawful titles
to the Subject Equity Interests, and the Transferor has not entered
into any agreement for sales of the Subject Equity Interests or any
binding option agreement or right of first refusal agreement with
any third Person except the Transferee. There does not exist any
Security Interests or judicial garnishment or attachment upon the
Subject Equity Interests and affiliated interests
therein.
5.
This equity transfer has been
unanimously approved by shareholders' meeting of Xi'an Huitian, and
Shaanxi Power Construction has agreed on this equity transfer and
has not waived its right of first refusal.
6.
The Transferee proposes to
accept the Subject Equity Interests, and this equity transfer has
been approved by the Board of Directors of the
Transferee.
7.
The Transferee has engaged
Intermediary Agents to investigate and audit the assets,
financials, material contracts, internal control and other
information and data of Xi'an Huitian and has been aware of the
basic status of Xi'an Huitian.
8.
The Transferee has paid the
Transferor RMB 10,000,000 into the bank account designated by the
Transferor in this Agreement as the Deposit Money to ensure mutual
performance of this Agreement. The Transferor has received such
money through the bank account designated by the Transferor in this
Agreement and pledges that it will perform this Agreement in
earnest.
9.
The blood product industry is
restricted for foreign investment, and this equity transfer needs
approval from Government Authorities; this equity transfer has not
been approved by Government Authorities
NOW
THEREFORE, through friendly consultation and for mutual benefits,
the Parties have entered into this agreement for security
interests, escrow and transfer of equity interests in accordance
with the relevant laws and regulations of the PRC.
2
Article 1 Definitions
1-1
Unless stipulated otherwise in this
Agreement, the following items in this Agreement are defined as
follows:
Person:
means any natural
persons, companies, partnerships, joint ventures, firms,
associations, Government Authorities, or other civil subjects.
This Agreement: means this Equity Transfer Agreement and all
its attachments and appendices. "This Agreement" or other
similar items refer to the entirety of this Agreement, not any
specific articles thereof. Any "this Agreement" mentioned
herein means this Agreement and its attachments and appendices as
supplemented and amended from time to time.
Security Interests: means any mortgage, pledge, lien,
deposit money, preemptive rights prescribed by law or other
third-party priority right.
Affiliated Party: As to any Person, it means any Person
controlling such party, being controlled by such party or under
common control with such party, directly or indirectly. If
any Person directly or indirectly holds more than 50% of voting
equity interests (shares) or economic interests of one party, or
has the power to appoint a majority of the Board of Directors of
such party, this Person is deemed to have control on such
party.
Closing: means that the Transferor registers
all the Subject Equity Interests in the name of the Transferee and
go through the registration formalities for amending Xi'an
Huitian's Contract and Articles of Associations according to this
Agreement (completion of the formalities for alteration
registration with AIC for equity interests transfer will indicate
consummation of Closing).
Date of
Closing: means the day on which all the
Subject Equity Interests have been registered in the name of the
Transferee (i.e. the date on which the alteration registration
formalities with AIC are completed for the equity interests
transfer).
Transition of
Equity Interest or Transition: means that the Transferee, pursuant
to the Shareholder Joint Venture and Cooperation Agreement entered
into with Shaanxi Power Construction or the entrustment agreement
for the Subject Equity Interest entered into with the Transferee,
dispatches its staff to Xi'an Huitian to take over all or part of
the liabilities and obligations of the Transferor in Xi'an Huitian
and enjoy the rights derived from the 35% equity interests in Xi'an
Huitian.
Intellectual
Property and Administrative Approval: means any patent, patent application
right, copyright, trademark, domain name, proprietary technology,
commercial secrets, trade name, mark, GMP certificate, production
permit, production approval, plasma collection permit and other
intellectual products and professional rights, and any rights
relating to the application, registration and grants
thereof.
3
Material Adverse
Effect:
(1) Any event, circumstance or act,
newly discovered by the Transferor or the Transferee after the Date
of Execution and not known in the past, which occurred prior to the
Date of Transition and will have material adverse effect on the
general business, financial conditions, properties, business or
performance results of Xi'an Huitian, provided however that no
event, circumstance or act should be deemed as Material Adverse
Effect if its reasonably expected financial impact is less than 10%
of Xi'an Huitian's audited net asset amount for the year 2007 as
audited under Independent Auditing Standards of the PRC; Material
Adverse Effect also excludes the following: (i) amendments to
Independent Auditing Standards and Enterprise Accounting Standards
of the PRC; and (ii) revision by the PRC Government Authorities to
the laws and their interpretations applicable to enterprises or
others.
(2) Material Change: means any
change that would or may result in Material Adverse Effect on an
independent or accumulative basis.
Effects that
materially impede the capabilities of the Transferor or the
Transferee to respectively perform their obligations under this
Agreement, or effects that materially threaten or impede the
performance of the proposed transaction under this
Agreement.
Deposit
Money: means
money paid by the Transferor to the Transferee for performance
security purpose to ensure mutual compliance with this Agreement.
If the Transferor breaches this Agreement by transferring the
Subject Equity Interests to any third party without prior
permission from Transferee and makes this Agreement unenforceable,
the Transferor should repay twice such deposit amount. If the
Transferee does not pay the Transferor the second installment in
accordance with this Agreement and the Transferor decides to
rescind this Agreement with the Transferee, the Transferor will not
return such security money.
Subsidiary: As to any Person, if any company or
other entity holds more than 50% equity interest of such Person or
other interests on the basis of which it could elect the majority
of the Board of Directors of such Person, this Person is the
Subsidiary of such company or other entity.
Accrued
Interests: mean any benefits or rights that
would or may accrue on the Subject Equity Interests prior to the
Date of Closing, including but not limited to dividends, equity
earnings, share dividend, share allotment, etc.
Attachments: All the information and data
relating to this Agreement which have been provided by one Party
according to the notice methods hereunder and confirmed by the
other Party by the Date of Closing, and other agreements entered
into by the Parties relating to this Agreement, both of which
constitute attachments to this Agreement, including but not limited
to the attachment attached to this Agreement.
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Data:
All written data
provided by the Transferor or Xi'an Huitian in the process of due
diligence and received by the Transferee, its financial consultant,
auditor or attorney.
Plasma
Companies: mean plasma collection companies
duly established and validly existing in Shaanxi Province.
Xi'an Huitian now solely owns Baishui Huitian Plasmaphoresis
Station Co., Ltd. and Fuping Huitian Plasmaphoresis Station Co.,
Ltd. Ankang Hanbin Huitian Yongdong Plasmaphoresis Station
Co., Ltd. has finished its restructuring and established one-on-one
plasma supply relationship with Xi'an Huitian, but it has not
completed AIC registration formalities.
Contingent
Liabilities: mean the liabilities that Xi'an
Huitian shall pay for as a result of external guarantee, debt,
contract and litigation, and undisclosed taxation that were
concealed prior to the execution of this Agreement.
Obligation to
Assist: mean
obligations the Transferor has promised to the Transferee that the
Transferor will perform in connection with the pledge, entrustment,
governmental approvals, AIC alteration registration of the Subject
Equity Interests involved in this Agreement that the Transferor
could complete independently without assistance or approvals from
Governmental Authorities, Xi'an Huitian or Shaanxi Power
Construction.
Government
Authorities: mean the central and local
governments (including the commerce authorities and their
subordinates and constituent departments) and entities have been
empowered by law or delegated to exercise state administrative
power.
1-2
Unless provided
otherwise, if expiration of a certain term as required by this
Agreement falls upon a date that is not a Business Day, such term
will be extended to the immediately following Business Day after
such non-Business Day.
Article
2 Equity Transfer Price and
Payment
2-1
Equity Transfer Price
2-1-1
The Parties agree that the Transfer
Price for Subject Equity Interests and Accrued Interests is
RMB44,000,000 only (Forty-Four Million RMB).
2-1-2
The interests of Subject Equity
Interests and Accrued Interests are subject to the Shareholders
Joint Venture and Cooperation Agreement between the Transferee and
Shaanxi Power Construction and the revised Article of
Association.
2-1-3
The rights and liabilities between
the Transferor, Shaanxi Power Construction and its affiliates and
Xi'an Huitian have been confirmed by Xi'an Huitian, the Transferor
and Shaanxi Power Construction.
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2-2
Payment Dates and Arrangements for Payments:
2-2-1
The Transferor shall, from the date
of execution, assist the Transferee in completing the approval
formalities for such equity transfer from Government Authorities
and assist in AIC alteration registration of the Subject Equity
Interests and register the Subject Equity Interests in the name of
the Transferee or the Affiliated Party. After the AIC
alteration registration, the Deposit Money of RMB 10,000,000 paid
by the Transferee to the Transferor will automatically become the
initial installment of consideration.
2-2-2
Simultaneous to the execution of
this Equity Transfer Agreement, the Transferor and the Transferee
will sign a pledge agreement and an entrustment agreement regarding
the Subject Equity Interests, under which the Transferor shall
immediately pledge the Subject Equity Interests to the Transferee
or a financial institution designated by the Transferee and the
entrustment agreement shall be immediately notarized,
which shall take effect after the second installment is
paid from the Transferee to the Transferor. Within 5 days
after completion of the pledge and notarization formalities, the
Transferee shall pay RMB 12,000,000 to the Transferor as the second
installment. With the assistance from the Transferor, the
Transferee shall complete the pledge and entrustment formalities
for the Subject Equity Interests within one month after the
execution of this Agreement. If the pledge and entrustment
formalities for the Subject Equity Interests could not be completed
within one month after the execution of this Agreement for any
reason other than absence of timely assistance from the Transferor,
the Transferee shall still pay the second installment to the
Transferor. After the Transferor has received the second
installment, the entrustment agreement of the Subject Equity
Interests shall immediately take effect and the Transferor shall
immediately formally entrust the Subject Equity Interests to the
Transferee. The Transferor shall finish the transition
matters for Xi'an Huitian according to the requirements of the
Transferee and shall agree that the Transferee will exercise all
the rights of 35% equity interests in Xi'an Huitian and enjoy all
the benefits therefrom.
2-2-3
There shall be interests accrued
upon the Transferee's unpaid transfer price, calculated at
annual rate of 8% from October 1, 2008. The balance of the
transfer price shall be fully paid within 5 days following the 6
months anniversary of October 1, 2008. If the Transferor's
failure to provide timely assistance to the completion of pledge
and entrustment of equity interests, governmental approvals of the
equity transfer and AIC alteration registration leads to any delay
in the completion of such formalities, then the Transferee has the
right to correspondingly postpone the payment of the transfer price
without interests accruing during the period of such postponement,
unless the Transferee has already been in breach of this
Agreement.
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2-2-4
If it is found that there are
pre-existing Contingent Liabilities in Xi'an Huitian before the
date of execution, the Transferee will deduct 35% of such
Contingent Liabilities and then pay the post-deduction balance of
the transfer price according to Article 2-2-3.
2-2-5
If the Transferee fails to pay
within 10 working days after each due date for any installment,
there will be liquidated damages in the amount of 10% of such
unpaid due amount in addition to the accrued interests. This
liquidated damages and the interests under Article 2-2-3 shall be
calculated and paid at the payment of the last installment.
If the Transferor fails to assist in completion of the
abovementioned formalities within 10 working days from the receipt
of a notice from the Transferee requesting such assistance, the
Transferor shall pay to the Transferee as liquidated damages an
amount equal to 10% of the portion of the equity transfer price
paid by the Transferee, unless the Transferee has already been in
breach of this Agreement. Such liquidated damages shall be
applied when the Transferee pays the last installment.
2-2-6
The Transf
