EXCLUSIVE PURCHAE OPTION AGREEMENT by and among ANHANTE (BEIJING) MEDICAL TECHNOLOGY CO., LTD. SHANGHAI ATRIP MEDICAL TECHNOLOGY CO., LTD., and SHAREHOLDERS THERETO
EXCLUSIVE
PURCHAE OPTION AGREEMENT
by
and among
ANHANTE
(BEIJING)
MEDICAL
TECHNOLOGY CO., LTD.
SHANGHAI
ATRIP MEDICAL TECHNOLOGY CO., LTD.,
and
SHAREHOLDERS
THERETO
April
14, 2008
This
Exclusive Option Purchase Agreement (the “Agreement”) is entered into on April
14, 2008 by and among the following parties in Shanghai, the People’s Republic
of China.
(1) Anhante
(Beijing) Medical Technology Co., Ltd. (“Party A”)
Registered
Address: Xxxxx0000X-0, Xxxxx 00, Xxxxxxx Xxxxxxx Palaze, No. 9
Building,
Manting Fangyuan Community, Qingyunli, Haidian District, Beijing.
Legal
representative: Xxxx Xxxxx
(2) Shanghai
Atrip Medical Technology Co., Ltd. (“Party B”)
Registered
Address: Xxxxx 0000-0X, Xxxxxxxx Xxxx, Xxxxxxxxx Xxxxxxxx,
Xxxxxxxx;
Legal
representative: Xxxx Xxxxx
(3)
The Individual Shareholders of Party B (collectively called “Individual
Shareholders”)
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Name
of the
Shareholders
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Percentage
Ownership
in
Registered Capital
(%)
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ID
Card No.
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Contact
Address
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|||
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Xxxx
Xxxxx
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93.9
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310106196809272814
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Room
202, Xx.00 xx Xxxx 000, Xxxxxxx Xxxx, Xxxxxxxx
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|||
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Xxxx
Fang
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4.25
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320504197607243041
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Xxxx000,
Xxxxxxxx 00, Xxxxxxxx Xxx Xxx, Xxxxxx, Xxxxxxx Xxxxxxxx.
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(4)
Shanghai Health Industry Development Center, the shareholder of Shanghai Atrip
Medical Technology Co., Ltd. (“Industry Center”)
Registered
Address: Floor 0, Xx.000 xx Xxxxxx Xxxx, Xxxxxxxx, XXX
Xxxxx
representative: Xxxxx Qincai
Party
A,
Party B, Shareholders of Party B and Industry Center are hereinafter from time
to time, collectively, referred to as the “Parties”,
and
each of them is hereinafter from time to time referred to as a “Party”;
the
individual shareholders are hereinafter from time to time, collectively,
referred to as the “Individual Shareholders”
and
each of them is hereinafter from time to time referred to as a “Individual
Shareholder”.
The
equity interests in Party B held by the Individual Shareholders now existing
or
hereafter acquired is hereinafter from time to time referred to as the
“Equity
Interests”
or
“Equity”.
1
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1.
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Party
A, as a wholly foreign-owned enterprise, is incorporated under the
laws of
the People’s Republic of China (the “PRC”),
and engages in developing the application of clinical laboratories
technologies, and providing technical consultancy, services, and
transfer;
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2.
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Party
B, as a domestic limited liability company, incorporated under PRC
laws in
Shanghai, is licensed by Administrative Departments for Industry
and
Commerce, Shanghai Changning District Branch and engage in the business
of
Technology development, transfer, consulting and services of medical
appliance, chemical industry, electron and machinery, distributing
medical
appliance (reference to the license), chemical products (excluding
the
dangerous), mechanical and electronic equipments, textiles (If any
license
needed, applying to the license);
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3.
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As
of the date of this Agreement, the percentage ownership of the Equity
Interests in Party B held by each of the Individual Shareholders
shall be
set forth as described above;
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4.
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As
the shareholder of Party B, Industry Center holds 1.85% of equity
interests in Party B;
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5.
|
To
secure the performance of the obligations assumed by Party B and
the
Individual Shareholders under this Agreement, the Individual Shareholders
agree to pledge all their equities in Party B to Party A, and have
executed Equity Pledge Agreement on April14, 2008 with respect
thereto.
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NOW,
THEREFORE,
the
Parties through mutual negotiations hereby enter into this Agreement in respect
of the exclusive purchase option right:
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1.
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THE
GRANT AND EXERCISE OF PURCHASE
OPTION
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| 1.1 |
Each
Individual Shareholder hereby irrevocably grants Party A an exclusive
purchase right at any time, or its designated any third party to
purchase
all or part of such Individual Shareholder’s Equity Interests in Party B,
provided permitted under the PRC laws and regulations, and Party
B and
Industry Center agree to such grant by such Individual Shareholder
to
Party A. Apart from Party A or any third party designated by it,
no other
person shall have the right to purchase such Equity Interests. Each
of the
Individual Shareholders shall transfer its Equity Interests in Party
B to
Party A in accordance with its percentage ownership of such Equity
Interests provided that Party A selects to purchase proportion of
such
Individual Shareholder’s Equity Interests.
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| 1.2 |
Party
B hereby irrevocably grants to Party A an exclusive purchase option,
at
any time to acquire all or a portion of the Individual Shareholders’
Equity Interests, or all or substantial part of Party B’s assets, provided
permitted under the PRC laws and regulations and the Individual
Shareholders and Industry Center agree to such grant by Party B to
Party
A.
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2
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1.3
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For
the purpose of this Agreement, a “third party” or a “person” may be a
natural person, company, partnership, enterprise, trust agency or
other
non-corporate entity.
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1.4
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To
the extent permitted under the PRC laws and regulations, Party A
shall
determine, at any time and at its own option, to exercise such exclusive
right to (i) purchase the Equity Interests as provided in Section
1.1
by
written notice to the applicable Individual Shareholder(s) specifying
the
amount of equity to be purchased (hereinafter referred to as “Equity
Transfer”);
or (ii) purchase all or substantially all of Party B’s assets as provided
in Section
1.2
(hereinafter referred to as “Assets
Transfer”)
by written notice to Party B (the "Exercise
Notice").
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1.5
|
Within
thirty (30) days of the receipt of the Exercise Notice, the applicable
Individual Shareholder(s) and Party B shall execute a share/asset
transfer
agreement and other documents (collectively, the "Transfer
Documents")
necessary to effect the respective transfer of equity or assets to
Party A
(or any eligible party designated by Party A), and shall unconditionally
assist Party A to obtain all approvals, permits, registrations, filings
and other procedures necessary to effect the Equity or Assets
Transfer.
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1.6
|
Unless
otherwise required under the PRC laws and regulations, the transaction
price for the Equity Transfer or the Assets Transfer hereunder, as
applicable, shall be the lowest price permitted under the PRC laws
and
regulations.
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1.7
|
The
consideration after tax payment (the “Consideration of Equity Transfer”)
obtained by the Individual Shareholders from Equity Transfer in Party
B
hereunder shall be used to discharge Party B from the repayment of
the
loan (the “Loan”) under the loan agreement (the “Loan Agreement”) dated as
of April 14, 2008, signed by and among, Party A, Party B and the
Individual Shareholders;
The
consideration after tax payment (the “Consideration of Assets Transfer”)
by Party B, if as applicable, from Assets Transfer in Party B hereunder
shall be used to repay the Loan under the Loan Agreement;
And
if the Consideration of Equity Transfer or Assets Transfer is higher
than
the total principal under the Loan Agreement due to the requirement
by the
then applicable law or any other reasons, the excess shall be deemed
as
loan interest and/or utilizing fees of the Loan to the largest extent
being permitted by PRC Laws, and be paid to Party A by Party B together
with loan principal.
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2.
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REPRESENTATIONS
AND WARRANTIES
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2.1
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Each
Party hereto represents to the other Parties that: (1) it has all
necessary rights, powers and authorizations to enter into this Agreement
and perform its duties and obligations hereunder; and (2) the execution
or
performance of this Agreement shall not violate or conflict with
the terms
of any other contracts or agreements to which it is a
party.
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2.2
|
Each
Individual Shareholder hereby represents to Party A that: (1) such
Individual Shareholder is the legally registered Individual Shareholder
of
party B, and Yang Fang has paid full amount of registered capital
in Party
B as required in accordance with the PRC laws and regulations and
articles
of associations of Party B; (2)Except for the Equity Pledge Agreement
executed among the Parties, such Individual Shareholder has not created
any other mortgage, pledge, secured interests or other form of debt
liabilities over the Equity Interests held by such Individual Shareholder;
and (3) such Individual Shareholder has not transfer to any third
party
(and entered into any agreement in respect of) such Equity
Interests.
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2.3
|
Whereas
the Individual Shareholder, Mr. Xxxx Xxxxx has not paid its capital
contribution of RMB 2,565,000 (which shall be paid before April,
2008), it
hereby warrant to Party A that he will make full capital contribution
in
time in accordance with the provisions of articles of association
of Party
B .
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2.4
|
Party
B hereto represents to Party A that: (1) it is a limited liability
company
duly registered and validly existing under the PRC laws and regulations;
and (2) its business operations are in compliance with applicable
laws and
regulations of the PRC in all material
respects.
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2.5
|
Industry
Center warrants and undertakes to Party A that (1) as the shareholder
of
Party B, unless otherwise obtaining the prior written consent from
Party
A, it shall not sell, transfer its equity in Party B, or set pledge
or
other forms of encumbrances on such equity within the term of this
Agreement;(2) in the event of any exercise of exclusive purchase
option
right by Party A hereunder for purchasing part or all of Equities
held by
Individual Shareholders, it shall waive its pre-emptive right on
the
Equity sold by Individual Shareholders irrespective of the condition
and
price of such exercise; (3) in the event of any exercise of exclusive
purchase option right by Party A hereunder for purchasing the assets
in
Party B, it shall agree and not hinder the exercise of purchase right
by
Party A hereunder.
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3.
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OBLIGATIONS
OF PARTY B AND INDIVIDUAL
SHAREHOLDERS
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The
Parties further agree as follows:
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3.1
|
Before
Party A has acquired all the equity/assets of Party B by exercising
the
purchase option provided hereunder, Party
B:
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a.
|
without
Party A’s prior written consent, shall not supplement or amend the
articles of association or rules of Party B, its wholly-owned and
holding
subsidiaries (including the company whose equity has consigned to
Party B)
in any manner, nor shall it increase or decrease the registered capital
or
change the shareholding structure of aforesaid entities in any manner;
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b.
|
shall
prudently and effectively maintain its business operations according
to
good financial and business standards so as to maintain or increase
the
value of its assets;
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c.
|
shall
not transfer, mortgage or otherwise dispose of the lawful rights
and
interests to and in its assets or incomes, nor shall it encumber
its
assets and income in any way that would affect Party A’s security
interests unless as required necessary for the business operation
of Party
B or upon prior written consent by Party A ;
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d.
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shall
not incur or succeed to any debts or liabilities without Party A’s prior
written consent;
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e.
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without
Party A’s prior written consent, shall not enter into any material
contract (exceeding RMB 5,000,000 in
value);
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f.
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without
Party A’s prior written consent, shall not provide any loans or guaranty
to any third party;
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g.
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at
Party A’s request, it shall provide Party A with all information regarding
Party B’s business operation and financial condition;
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h.
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shall
purchase insurance from insurance companies acceptable to Party B
in such
amounts and of such kinds as are customary in the region among companies
doing similar business and having similar assets;
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i.
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without
Party A’s prior written consent, shall not acquire or consolidate with any
third party, nor shall they invest in any third party;
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j.
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shall
promptly notify Party A of any pending or threatened lawsuit, arbitration
or administrative dispute which involve Party B’s assets, business or
incomes, and take positive measures against aforesaid lawsuits,
arbitrations or administrative dispute;
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k.
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without
Party A’s prior written consent, shall not distribute any dividends to the
shareholders in any manner;
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| l. |
without
Party A’s prior written consent, shall not commit any act or omission that
would materially affect Party B’s assets, business or
liabilities;
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| m. |
at
Party A’s request, shall it promptly and unconditionally transfer its
assets to Party A or its designated third party as permitted by PRC
laws
and regulations;
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| n. |
shall
strictly comply with the provisions of this Agreement, and effectively
perform its obligations hereunder, and shall be prohibited from committing
any act or omission which may affect the validity or enforceability
of
this Agreement.
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3.2
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Before
Party A has acquired all the equity/assets of Party B by exercising
the
purchase option provided hereunder, each Individual
Shareholder:
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a.
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apart
from relevant provisions in each of the Equity Pledge Agreements,
without
Party A’s prior written consent, it shall not individually or collectively
transfer, sell, mortgage or otherwise dispose of such Individual
Shareholder’s Equity Interests in Party B; nor shall such Individual
Shareholder places encumbrances on their Equity Interests that
would
affect Party A’s interest hereunder and
thereunder;
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b.
|
without
Party A’s prior written consent, shall not supplement or amend the
articles of association or rules of Party B in any manner, nor shall
it
increase or decrease its registered capital or change the shareholding
structure in any manner;
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c.
|
without
Party A’s prior written consent, shall cause the Shareholders’ General
Meeting not to approve for the resolutions on the dissolution, liquidation
and change of legal form of Party B, its wholly owned and holding
subsidiaries (including the company whose equity has consigned to
Party
B);
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d.
|
shall
cause the Shareholders’ General Meeting not to approve for any Profit
Distribution Proposal, nor shall accept such distributed dividend
without
Party A’s written consent; At Party A’s request, it shall promptly approve
for the Profit Distribution Proposal, and accept such distributed
dividend;
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e.
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at
Party A’s request, it shall provide Party A with all information regarding
Party B’s business operation and financial
condition;
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f.
|
shall
not incur or succeed to any debts or liabilities which may adversely
affect its Equity Interests in Party B without Party A’s prior written
consent;
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g.
|
shall
appoint, and appoint only, the candidates nominated by Party A as
the
directors of Party B, and shall not replace such candidates without
Party
A’s prior written consent;
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h.
|
shall
cause Party B’s board of directors not to approve any acquisition of, any
consolidation with, or any investment in any third party without
Party A’s
prior written consent;
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i.
|
shall
promptly notify Party A of any pending or threatened lawsuit, arbitration
or administrative dispute which involve Party B’s assets, business or
incomes, and take positive measures against aforesaid lawsuits,
arbitrations or administrative dispute;
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j.
|
without
Party A’s prior written consent, shall not commit any act or omission that
would materially affect Party B’s assets, business or
liabilities;
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k.
|
to
the extent permitted by the PRC laws and regulations, and at any
time upon
Party A’s request, shall promptly and unconditionally transfer their
Equity Interests in Party B to Party A or a third party designated
by
Party, and waive their rights of first refusal with respect to such
transfer;
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l.
|
shall
cause the directors of Party B approve for the resolution in respect
of
the Equity Transfer or Assets Transfer
hereunder;
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m.
|
shall
make every efforts to cause Party B perform the obligations of Section
3.1
hereunder; and
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n.
|
shall
strictly comply with the provisions of this Agreement, and effectively
perform its obligations hereunder, and shall be prohibited from committing
any act or omission which may affect the validity or enforceability
of
this Agreement.
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3.3
|
The
Individual Shareholders shall, to the extent permitted by applicable
laws,
cause the business term of Party B (including any circumstance of
change
of business term) not shorter than that of Party A (including the
circumstance of change of business
term).
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4.
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GUARANTY
OF THIS AGREEMENT
|
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4.1
|
To
secure the performance of the obligations assumed by the Individual
Shareholders and Party B hereunder, the Parties agree to execute
the
Equity Pledge Agreement with respect
thereto.
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5.
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TAXES
AND FEES
|
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5.1
|
The
Parties shall pay, in accordance with relevant PRC laws and regulations,
their respective taxes arising from Equity or Assets transfer and
related
registration formalities and other charges during the transactions
contemplated herein and therein.
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6.
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ASSIGNMENT
OF AGREEMENT
|
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6.1
|
The
Individual Shareholders, Industry Center and Party B shall not transfer
their rights and obligations under this Agreement to any third party
without the prior written consent of Party A.
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6.2
|
The
Parties agree that Party A shall, at its own discretion, transfer
any or
all of its rights and obligations under this Agreement to any third
party
upon the delivery of a six (6)–day written notice to such Individual
Shareholder and Party B.
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7.
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EVENTS
OF DEFAULT
|
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7.1
|
Any
violation of any provision hereof, incomplete performance of any
obligation provided hereunder, any misrepresentation made hereunder,
material concealment or omission of any material fact or failure
to
perform any covenants provided hereunder by any Party shall constitute
an
event of default. The defaulting Party shall assume all the legal
liabilities pursuant to the applicable PRC laws and
regulations.
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7.2
|
In
the event of default by Party B or Individual Shareholders, Party
A shall
be entitled to exercise the Pledgee’s right under the Equity Pledge
Agreement in the event that Party B and Individual Shareholders commit
an
event of default and fail to redress such default within 60 working
days
upon receipt of written notification from Party
A.
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8.
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EFFECTIVEMESS,
MODIFICATION AND
CANCELLATION
|
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8.1
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This
Agreement shall be effective upon the execution hereof by all Parties
hereto.
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8.2
|
The
modification of this Agreement shall not be effective without written
agreement from Party A, Party B and the Individual Shareholders through
negotiation. If the aforesaid Parties could not reach an agreement,
this
Agreement remains effective.
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8.3
|
This
Agreement shall not be discharged or canceled without written agreement
from Party A, Party B and the Individual Shareholders through negotiation,
provided Party A may, by giving a thirty (30) days prior notice to
the
other Parties hereto, terminate this
Agreement.
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8.4
|
If
Party A fails to provide the Loan in accordance with the Loan Agreement,
this Agreement shall be automatically
terminated.
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9.
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CONFIDENTIALITY
|
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9.1
|
Any
information, documents, data and all other materials (herein “confidential
information”) arising out of the negotiation, signing, and implement of
this Agreement, shall be kept in strict confidence by the Parties.
Without
the written approval by the other Parties, any Party shall not disclose
to
any third party any relevant materials, but the following circumstances
shall be excluded:
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|
a.
|
The
materials that is known or may be known by the Public (but not include
the
materials disclosed by each party receiving the
materials);
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8
Exclusive
Purchase Option Agreement
|
b.
|
The
materials required to be disclosed subject to the applicable laws
or the
rules or provisions of stock exchange;
or
|
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c.
|
The
materials disclosed by each Party to its legal or financial consultant
relating the transaction of this Agreement, and this legal or financial
consultant shall comply with the confidentiality set forth in this
Section. The disclosure of the confidential materials by staff or
employed
institution of any Party shall be deemed as the disclosure of such
materials by such Party, and such Party shall bear the liabilities
for
breaching the contract.
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9.2
|
If
this Agreement is terminated or becomes invalid or unenforceable,
the
validity and enforceability of Article 9 shall not be affected or
impaired.
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10.
|
FORCE
MAJEURE
|
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10.1
|
An
event of force majeure means an event that could not be foreseen,
and
could not be avoided and overcome, which includes among other things,
but
without limitation, acts of nature (such as earthquake, flood or
fire),
government acts, strikes or riots.
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10.2
|
If
an event of force majeure occurs, any of the Parties who is prevented
from
performing its obligations under this Agreement by an event of force
majeure shall notify the other Parties without delay and within fifteen
(15) days of the event provide detailed information about and notarized
documents evidencing the event and take appropriate means to minimize
or
remove the negative effects of force majeure on the other Parties,
and
shall not assume the liabilities for breaching this Agreement. The
Parties
shall keep on performing this Agreement after the event of force
majeure
disappears.
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11.
|
APPLICABLE
LAW AND DISPUTE RESOLUTION
|
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11.1
|
Applicable
Law
|
|
The
execution, validity, construing and performance of this Agreement
and the
disputes resolution under this Agreement shall be governed by the
laws and
regulations of the PRC.
|
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11.2
|
Dispute
Resolution
|
|
The
Parties shall strive to settle any dispute arising from or in connection
with this Agreement through friendly consultation. In case no settlement
can be reached through consultation within thirty (30) days after
such
dispute is raised, each Party can submit such matter to Beijing
Arbitration Commission for arbitration in accordance with its rules.
The
arbitration shall take place in Beijing and the proceedings shall
be
conducted in Chinese. The arbitration award shall be final conclusive
and
binding upon the Parties.
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9
Exclusive
Purchase Option Agreement
|
12.
|
MISCELLANEOUS
|
|
12.1
|
Entire
Agreement
|
|
The
Parties acknowledge that this Agreement constitutes the entire agreement
of the Parties with respect to the subject matters therein and supersedes
and replaces all prior or contemporaneous oral or written agreements
and
understandings.
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12.2
|
Successor
|
|
This
Agreement shall bind and benefit the successor of each Party and
the
transferee permitted hereunder with the same rights and obligations
as if
the original parties hereof.
|
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12.3
|
Notice
|
|
Any
notice required to be given or delivered to the Parties hereunder
shall be
in writing and delivered to the address as indicated below or such
other
address or as such party may designate, in writing, from time to
time. All
notices shall be deemed to have been given or delivered upon by personal
delivery, fax and registered mail. It shall be deemed to be delivered
upon: (1) registered air mail: 5 business days after deposit in the
mail;
(2) personal delivery: 2 business days after transmission. If the
notice
is delivered by fax, it should be confirmed by original through registered
air mail or personal delivery.
Party
A:
Contact
person: Xxxx Xxxxx
Address:
2A, Xxxxxxxx0, Xx.000 xx Xxx Xxx Xxxx, Xxxxxxxxxx Xx-xxxx Xxxx, Xxxxxxxx,
000000
Tel:
000-00000000
Fax:
000-00000000
Party
B:
Contact
person: Xxxxx Xxxxxxx
Address:
No. 0000-0X, Xxxxxxxx Xxxx, Xxxxxxxx,000000
Tel:
000-00000000
Fax:
000-00000000
The Representative designated by the Individual
Shareholders
Contact
person: Xxxx Xxxxx
Address:
2A, Xxxxxxxx0, Xx.000 xx Xxx Xxx Xxxx, Xxxxxxxxxx Xx-xxxx Xxxx, Xxxxxxxx,
000000
Tel:
000-00000000
Fax:
000-00000000
Industry
Center
Contact
person: Zhou Xxxx Xxxx
Xxxxxxx:Xx.0000,
Xxxxxxxx Xxxx, Xxxxxxxx
Tel:
000-00000000
Fax:
000-00000000
|
10
Exclusive
Purchase Option Agreement
|
12.4
|
Copies
|
|
This
Agreement is executed in five (5) originals with each of the person
for
signing this Agreement holding one original, and each of the originals
shall be equally valid and
authentic.
|
[Signature
page follows]
11
Exclusive
Purchase Option Agreement
Party
A Anhante
(Beijing) Medical Technology Co., Ltd. (Seal)
Legal
Representative(or Authorized Representative): ___________
Party
B Shanghai Atrip Medical Technology Co., Ltd. (Seal)
Legal
Representative(or Authorized Representative): ___________
The
Individual Shareholders of Shanghai Atrip Medical Technology Co.,
Ltd.
Mr.
Xxxx Xxxxx,
Xx.
Xxxx Fang,
Shanghai
Health Industry Development Center (Seal)
Legal
Representative(or Authorized Representative): ___________
12
