EQUITY PLEDGE AGREEMENT
EXHIBIT
10.16
This
Equity Pledge Agreement (hereinafter this "Agreement") is made and entered into
as of September 28, 2010, by and between the following parties in
Guangzhou, the People’s Republic of China (“China” or the “PRC”):
Party
A: Guangdong Hopsun Polypeptide Biological Technology Co., Ltd.
(the “Pledgee”)
Party
B: Xxxxxxxxx Xxxx, Xxxxxxxx Xxx (the “Pledgor”)
Party
C: Guangdong Xinpu Polypeptide Research Co., Ltd. (the
“Company”)
Each of
the Pledgee and Pledgor and Party C shall be hereinafter referred to as a
“Party” respectively, and as the “Parties” collectively.
RECITALS
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(1)
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The
Pledgee, a limited liability company duly incorporated under the laws of
China which has the expertise in the business of polypeptide-related
health product development, sales and marketing, related technical
consultation, etc.
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(2)
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The
Company is a limited liability company duly incorporated under the laws of
China which has the expertise in the business of polypeptide-related
health product development, related real estate development, related
technical consultation, etc.
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(3)
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The
Pledgor is the sole shareholder of the Company by holding 100 % of equity
interests.
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(3)
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The
Pledgee
and the Company have executed an Exclusive Business Cooperation Agreement
(hereinafter “Services Agreement”) concurrently herewith. The Company
shall pay service fees to Pledgee for offering services (the “Services
Fees”).
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(4)
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In
order to ensure that the Company and Pledgor will perform its obligations
under the Services Agreement, and in order to provide an additional
mechanism for the Pledgee to enforce its rights to collect the Services
Fees from the Company, the Pledgor agrees to pledge all his equity
interest in the Company as security for the performance of the obligations
of the Company and Pledgor under the Services Agreement and the payment of
Services Fees under such
agreements.
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NOW THEREFORE, the Pledgee,
the Company and the Pledgor through mutual negotiations hereby enter into this
Agreement based upon the following terms:
1.
Definitions and
Interpretation. Unless otherwise provided in this Agreement,
the following terms shall have the following meanings:
1
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1.1
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“Pledge” refers
to the full content of Section 2
hereunder.
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1.2
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“Equity
Interest” refers to all the equity interest in the Company legally
held by the Pledgor.
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1.3
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“Term of Pledge”
refers to the period provided for under Section 3.2
hereunder.
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1.4
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“Event of
Default” refers to any event in accordance with Section 7.1
hereunder.
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1.5
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“Notice of
Default” refers to the notice of default issued by the Pledgee in
accordance with this
Agreement.
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2. Pledge. The
Pledgor agrees to pledge his equity interest in the Company to the Pledgee
(“Pledged
Collateral”) as a security for the obligations of the Company and Pledgor
under the Services Agreement and the payment of Services Fees under such
agreements. The Pledge under this Agreement refers to the rights owned by the
Pledgee, who shall be entitled to a priority in receiving payment by the
proceeds from the auction or sale of the equity interest pledged by the Pledgor
to the Pledgee.
3.
Term of
Pledge
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3.1
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The
term of the Pledge shall last until two (2) years after the obligations
under the Services Agreement are
fulfilled.
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3.2
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During
the term of the Pledge, the Pledgee shall be entitled to sell, or dispose
of the pledged assets in accordance with this Agreement in the event that
the Company and Pledgor fail to pay the Service Fees in accordance with
the Services Agreement.
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3.3
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During
the term of the Pledge, the Pledgee shall be entitled to collect any and
all dividends declared or paid in connection with the equity
interest.
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4.
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Pledge Procedure and
Registration
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4.1
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The
Pledge under this Agreement shall be recorded in the Register of
Shareholders/owners of the Company. he Pledgor shall process the
registration procedures with the Administration for Industry and Commerce
concerning the Pledge.
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5.
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Representation and
Warranties of Pledgor
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5.1
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The
Pledgor is the legal owner of the equity interest
pledged.
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5.2
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The
Pledgor has not pledged the equity interest to any other party, and or the
equity interest is not encumbered to any other person except for the
Pledgee.
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2
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6.
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Covenants of
Pledgor
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6.1
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During
the effective term of this Agreement, the Pledgors promise to the Pledgee
for its benefit that the Pledgors
shall:
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6.1.1
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Not
transfer or assign the equity interest, create or permit to create any
pledges which may have an adverse effect on the rights or benefits of the
Pledgee without prior written consent from the
Pledgee.
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6.1.2
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Comply
with and implement laws and regulations with respect to the pledge of
rights; present to the Pledgee the notices, orders or suggestions with
respect to the Pledge issued or made by the competent authority within
five (5) days upon receiving such notices, orders or suggestions; and
comply with such notices, orders or suggestions; or object to the
foregoing matters at the reasonable request of the Pledgee or with consent
from the Pledgee.
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6.1.3
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Timely
notify the Pledgee of any events or any received notices which may affect
the Pledgor's equity interest or any part of its right, and any events or
any received notices which may change the Pledgor's any warranty and
obligation under this Agreement or affect the Pledgor’s performance of its
obligations under this Agreement.
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6.2
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The
Pledgor agrees that the Pledgee’s right to the Pledge obtained from this
Agreement shall not be suspended or inhibited by any legal procedure
launched by the Pledgor or any successors of the Pledgor or any person
authorized by the Pledgor or any such other
person.
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6.3
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The
Pledgor promises to the Pledgee that in order to protect or perfect the
security for the payment of the Services Fees, the Pledgor shall execute
in good faith and cause other parties who have interests in the Pledge to
execute all the title certificates, contracts, and perform actions and
cause other parties who have interests to take action, as required by the
Pledgee; and make access to exercise the rights and authorization vested
in the Pledgee under this
Agreement.
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6.4
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The
Pledgor promises to the Pledgee that he will execute all amendment
documents (if applicable and necessary) in connection with any
registration of the Pledge with the Pledgee or its designated person (a
natural person or a legal entity), and provide the notice, order and
decision to the Pledgee as necessary, within a reasonable amount of time
upon request.
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6.5
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The
Pledgor promises to the Pledgee that he will comply with and perform all
the guarantees, covenants, warranties, representations and conditions for
the benefits of the Pledgee. The Pledgor shall compensate all the losses
suffered by the Pledgee as a result of the Pledgor failing to perform or
fully perform his guarantees, covenants, warranties, representations and
conditions.
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3
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7.
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Events Of
Default.
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7.1
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The
following events shall be regarded as the events of
default:
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7.1.1
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This
Agreement is deemed illegal by a governing authority in the PRC, or the
Pledgor is not capable of continuing to perform the obligations herein due
to any reason except force majeure;
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7.1.2
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The
Company and Pledgor fail to make full payment of the Services Fees as
scheduled under the Service
Agreement;
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7.1.3
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The
Pledgor makes any materially false or misleading representations or
warranties under Section 5 herein, and/or the Pledgor breaches any
warranties under Section 5 herein;
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7.1.4
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The
Pledgor breaches the covenants under Section 6
herein;
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7.1.5
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The
Pledgor breaches the term or condition
herein;
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7.1.6
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The
Pledgor waives the pledged equity interest or transfers or assigns the
pledged equity interest without prior written consent of the
Pledgee;
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7.1.7
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The
Company is incapable of repaying the general debt or other
debt;
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7.1.8
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The
property of the Pledgor is adversely affected causing the Pledgee to
believe that the capability of the Pledgor to perform the obligations
herein is adversely affected;
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7.1.9
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The
successors or agents of the Company and Pledgor are only able to perform a
portion of or refuse to perform the payment obligations under the Service
Agreement;
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7.1.10
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The
breach of the other terms by action or inaction under this agreement by
the Pledgor.
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7.2
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The
Pledgor shall immediately give a written notice to the Pledgee if the
Pledgor is aware of or discovers that any event under Section 7.1 herein
or any event that may result in the foregoing events has occurred or is
likely to occur.
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7.3
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Unless
the event of default under Section 7.1 herein has been solved to the
Pledgee’s satisfaction, the Pledgee, at any time when the event of default
occurs or thereafter, may give a written notice of default to the Pledgor
and require the Pledgor to immediately make full payment of the
outstanding Service Fees under the Service Agreement and other payables or
exercise other rights in accordance with Section 8
herein.
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4
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8.
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Exercise of
Remedies
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8.1
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Authorized Action by
Secured Party. The Pledgor hereby irrevocably appoints the Pledgee
the attorney-in-fact of the Pledgor for the purpose of carrying out the
security provisions of this Agreement and taking any action and executing
any instrument that the Pledgee may deem necessary or advisable to
accomplish the purposes of this Agreement. If an event of default occurs,
or is continuing, the Pledgee shall have the right to exercise the
following rights and powers:
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(a)
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Collect
by legal proceedings or otherwise and endorse and/or receive all payments,
proceeds and other sums and property now or hereafter payable on or on
account of the Pledged Collateral;
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(b)
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Enter
into any extension, reorganization, deposit, merger, consolidation or
other agreement pertaining to, or deposit, surrender, accept, hold or
apply other property in exchange for the Pledged
Collateral;
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(c)
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Transfer
the Pledged Collateral to its own or its nominee’s
name,
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(d)
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Make
any compromise or settlement, and take any action it deems advisable, with
respect to the Pledged Collateral;
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(e)
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Notify
any obligor with respect to any Pledged Collateral to make payment
directly to the Pledgee;
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8.2
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Event of defaults;
Remedies. Upon the occurrence of an event of default, Pledgee may,
without notice to or demand on the Pledgor and in addition to all rights
and remedies available to Pledgee, at law or otherwise, do any of the
following:
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(a)
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Require
the Pledgor to immediately pay all outstanding unpaid amounts due under
the Consulting Services Agreement;
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(b)
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Foreclose
or otherwise enforce Pledgee's security interest in any manner permitted
by law or provided for in this
Agreement;
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(c)
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Terminate
this Agreement pursuant to Section
11;
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(d)
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Exercise
any and all rights as beneficial and legal owner of the Pledged
Collateral; and
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(e)
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Exercise
any and all the rights and remedies of a secured party upon default under
applicable law.
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5
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8.3
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The
Pledgee shall give a notice of default to the Pledgor when the Pledgee
exercises its remedies under this
Agreement.
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8.4
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The
Pledgee may exercise its remedies under this Agreement at any time after
the Pledgee gives a notice of default according to this
Agreement.
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8.5
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The
Pledgee is entitled to priority in receiving payment by the evaluation or
proceeds from the auction or sale of whole or part of the equity interest
pledged herein in accordance with legal procedure until the unpaid
Services Fees under the Services Agreement are
repaid.
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8.6
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The
Pledgor shall not hinder the Pledgee from exercising its rights in
accordance with this Agreement and shall give necessary assistance so that
the Pledgee may exercise its rights in
full.
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9.
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Assignment.
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9.1
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The
Pledgor shall not donate or transfer rights and obligations herein without
prior consent from the Pledgee.
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9.2
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This
Agreement shall be binding upon each of the Pledgor and his, her or its
successors and be binding on the Pledgee and his each successor and
assignee.
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9.3
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The
Pledgee may transfer or assign his all or any rights and obligations under
the Service Agreement to any individual specified by it (natural person or
legal entity) at any time.
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9.4
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In
the event of a change in control of the Pledgee’s resulting in the
transfer or assignment of this agreement, the successor parties to the
pledge shall execute a new pledge
contract.
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10.
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Fees and Other
Charges
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10.1
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The
Pledgor shall be responsible for all the fees and actual expenses in
relation to this Agreement, if any, including but not limited to legal
fees, stamp tax and any other taxes and
charges.
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11.
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Dispute
Resolution
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11.1
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This
Agreement shall be governed by and construed in accordance with the PRC
laws.
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11.2
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Arbitration.
Any dispute arising from, out of or in connection with this Agreement
shall be settled through friendly consultations between the Parties. In
the event the Parties fail to reach an agreement on the dispute within 30
days after either Party's request to the other Parties for resolution of
the dispute through negotiations, either Party may submit the relevant
dispute to the local competent arbitration committee for arbitration, in
accordance with its Arbitration Rules. The arbitration shall be conducted
in Guangzhou, and the language used in arbitration shall be Chinese. The
arbitration award shall be final and binding on all
Parties..
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6
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12.
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NOTICES
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Notices
or other communications required to be given by any party pursuant to this
Agreement shall be written in English and Chinese and delivered personally or
sent by registered mail or postage prepaid mail or by a recognized courier
service or by facsimile transmission to the address of relevant each party or
both parties set forth below or other address of the party or of the other
addressees specified by such party from time to time. The date when the notice
is deemed to be duly served shall be determined as the follows: (a) a notice
delivered personally is deemed duly served upon the delivery; (b)a notice sent
by mail is deemed duly served the tenth(10th)day after the date when the air
registered mail with postage prepaid has been sent out (as is shown on the
postmark),or the fourth(4th)day after the delivery date to the internationally
recognized courier service agency; and(c)a notice sent by facsimile transmission
is deemed duly served upon the receipt time as is shown on the transmission
confirmation of relevant documents.
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13.
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GENERAL
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13.1
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The
failure to exercise or de]ay in exercising a right or remedy under this
Agreement shall not constitute a waiver of the right or remedy or waiver
of any other rights or remedies and no single or partial exercise of any
right or remedy under this Agreement shall prevent any further exercise of
the right or remedy or the exercise of any other right or
remedy.
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13.2
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Should
any Clause or any part of any Clause contained in this Agreement be
declared invalid or unenforceable for any reason whatsoever, all other
Clauses or parts of Clauses contained in this Agreement shall remain in
full force and effect.
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13.3
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This
Agreement constitutes the entire agreement between the Parties relating to
the subject matter of this Agreement and supersedes all previous
agreements.
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13.4
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No
amendment or variation of this Agreement shall be valid unless it is in
writing and signed by or on behalf of each of the
Parties.
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13.5
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This
Agreement shall be executed in three (3) duplicate originals in English
and Chinese. Each Party has received one (1) duplicate original, and all
originals shall be equally valid.
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[SIGNATURE
PAGF, FOLLOWS]
7
SIGNATURE
PAGE
IN WITNESS WHEREOF each party
hereto has caused this Agreement duly executed by itself or a duly authorized
representative on its behalf as of the date first written above.
PARTY A: Guangdong Hopsun
Polypeptide Biological Technology Co., Ltd.
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Legal/Authorized
Representative:__________________
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Name:
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PARTY B: Xxxxxxxxx
Xxxx
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By:
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PARTY B: Shengfan
Yan
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By:
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PARTY C: Guangdong Xinpu
Polypeptide Research Co. Ltd.
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Legal/Authorized
Representative:________________
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Name:
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