Exhibit 10.168
Equity Transfer Agreement
Chapter 1. Parties
Article 1. The Parties to this agreement are as follows:
Party A ("Transferor"): Xxxx Technologies Asia Limited ("Xxxx")
Registered address: Xxxxxx Xxxxx Xxxxxx - 0xx xxxxx, Xxxxxxxx Mahe,
Seychelles
Legal representative: Xxxxx Xxxxxx
Position: Director
Nationality: Nepali
Party B ("Transferee"): Calypte Biomedical Corporation ("Calypte")
Registered address: 0 Xxxxxxxxxxxx Xxxxx, Xxxxx 000, Xxxx Xxxxxx, XX 00000
Legal representative: Xxxxx X. Xxxx
Position: President and CEO
Nationality: British
Chapter 2. Object of the Agreement and the Transfer Thereof
Article 2. Party A agrees to transfer fifty-one percent (51%) of the equity
interest ("Transfer Equity") of Beijing
Xxxx Bio-Pharmaceutical Manufacturing Co., Ltd. ("the Company") that it owns in
the Company to Party B.
Article 3. Party B agrees to accept the transfer of aforesaid fifty-one percent
(51%) of the equity interest of the Company that Party A owns in the Company.
Article 4. Reference Date for the transfer: The Parties agree that the Reference
Date for this equity transfer shall be the date this Agreement is approved by
the examination and approval authorities after having been signed by the
Parties. Before the Reference Date, rights and obligations pertaining to the
Transfer Equity shall be enjoyed and borne by Party A. After the Reference Date,
rights and obligations arising after the Reference Date shall be enjoyed and
borne by the Parties in proportion to their respective capital contribution to
the Company's registered capital (i.e. fifty-one percent (51%) by Calypte and
forty-nine percent (49%) by Xxxx).
Chapter 3. Amount and Method of Payment (Capital Injection)
Article 5. Schedule and method of capital contributions are as follows:
A) Party A has contributed capital in the amount of US$540,000 to the
registered capital of the Company. Such capital contribution shall account
for fifteen percent (15%) of the total registered capital of the Company
which is US$3,600,000. Party A shall further contribute US$1,224,000 to
the registered capital of the Company before November 17, 2006 when the
Company's original business license will expire. Such further capital
contribution shall account for thirty-four percent (34%) of the total
registered capital of the Company, at which time the total capital
contribution by Xxxx (US$1,764,000) shall account for forty-nine percent
(49%) of the total registered capital of the Company.
B) Party B shall contribute US$1,836,000 to the registered capital of the
Company before November 17, 2006 when the Company's original business
license will expire. Such capital contribution shall account for fifty-one
percent (51%) of the total registered capital of the Company.
Chapter 4. Undertakings and Statements of the Parties
Article 6. Party A warrants that the Company has been duly organized, is validly
existing and is in good standing under the laws of the jurisdiction of its
organization.
Article 7. Each of the Parties undertakes that except for the approval of the
Company's original examination and approval authority for the transfer, it has
obtained all approvals and authorizations necessary for its valid and legal
execution and delivery of this Agreement, the transfer of equity and the
completion of all other transactions contemplated hereby from the appropriate
authorities, boards of directors, and shareholders, respectively.
Article 8. Party A undertakes that it has disclosed in writing to Party B all
debts, disputes and matters related to the Company which may be adverse to Party
B's acquisition of the equity interest of the Company, otherwise, the adverse
legal consequences thereof shall be borne solely by Party A.
Article 9. Party A warrants that the equity interests it holds in the Company
are not encumbered by any mortgage, pledge or equity dispute.
Article 10. In the event that Party A violates any of the representations,
warranties or covenants contained in Article 6, 7, 8, or 9 of this Agreement,
Party A shall indemnify Party B from and against all damages and direct economic
losses suffered or incurred by Party B arising out of or in connection with such
violation by Party A.
Chapter 5. Performance and Liability for Breach of Contract
Article 11. Party A shall submit this Agreement and all other documents to the
Company's original examination and approval authorities for approval and shall
complete any other legal procedures relating to this equity transfer as soon as
practicable after it has been signed by the Parties. Upon the issuance of the
approval by the Company's original examination and approval authority, Party B
shall own the Transfer Equity and shall be able to oppose objections raised by
any third party.
Chapter 6. Obligations of the Parties
Article 12. The Parties will amend the Articles of Association of the Company in
the form attached hereto as Annex A. Further, the Parties shall execute the
amended Articles of Association of the Company for submission along with this
Agreement to the Company's original examination and approval authority for
approval.
Article 13. Party A shall ensure that the directors of the Company appointed by
it unanimously approve the terms of this Agreement and the amended Articles of
Association, and take all such other actions as Party B may consider necessary
or desirable in order to implement the transfer contemplated herein.
Article 14. Concurrently with Party B's initial contribution of US$918,000,
Party A shall deliver its investment certificate to the Company so that the
Company may issue new investment certificates to the Parties evidencing their
contributions to the Company.
Chapter 7. Governing Law and Dispute Resolution
Article 15. This Agreement shall be governed by and interpreted in accordance
with the published laws of China.
Article 16. All disputes arising from the implementation of or in connection
with this Agreement shall be settled through amicable negotiations between the
Parties. If a dispute cannot be settled through consultations, it shall be
submitted to the arbitration authority of China for arbitration in accordance
with its arbitration procedures. The arbitration award shall be final and
binding on both Parties.
Chapter 8. Entry into effect of this Agreement and Miscellaneous Provisions
Article 17. This Agreement shall be submitted to the Company's original
examination and approval authority for approval and shall become effective on
the date it is approved by the examination and approval authorities.
Article 18. In the event of matters that are not covered herein, the Parties
may, after consultation, enter into supplemental agreements. Any amendments or
supplemental agreements to this Agreement shall become effective on the date
they are approved by the examination and approval authorities and shall be
integral parts hereof and shall be of equal validity hereto.
Article 19. This Agreement is made in 6 identical copies, of which, each Party
shall hold one copy and the remaining 4 copies shall be submitted to the
relevant governmental authorities for filing.
Article 20. This Agreement is executed on December 21, 2005 by the legal
representatives or authorized representatives of the respective Parties at Xx.
00 Xxxxx Xxxxxxxxxx Xxxx, Xxxxxxx Xxxxxxxx, Xxxxxxx, Xxxxx
Party A: Xxxx Technologies Asia Limited -- Legal Representative:
/s/ Xxxxx Xxxxxx
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Name: Xxxxx Xxxxxx
Title:
Nationality:
Party B: Calypte Biomedical Corporation -- Legal Representative:
/s/ Xxxxx X Xxxx
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Name: Xxxxx X. Xxxx
Title:
Nationality:
