CONSULTING SERVICES AGREEMENT
This
Consulting Services Agreement (this “Agreement”) is dated April 2, 2010, and is
entered into in Dachang Hui Autonomous County, Hebei Province, People’s Republic
of China (“PRC” or “China”) by and among Hebei Anbang Investment Consultation
Co., Ltd. (“Party A”), and Dachang Hui Autonomous County Baosheng Steel Products
Co., Ltd. (“Party B”). Party A and Party B are referred to collectively in this
Agreement as the “Parties.”
RECITALS
(1)
Party A, a company incorporated in the PRC as a foreign investment enterprise,
specializes in the research and development of ferrous metal products and
consulting of enterprise management and investment;
(2)
Party B is engaged in a variety of production of ferrous products (collectively
the “Business”), including the process and sale of the cold rolled steel strip,
cold rolled steel coil, high frequency welded pipe and tin plates; import and
export of steel materials.
(3)
The Parties desire that Party A provide Party B with consulting and other
relevant services in connection with the Business; and
(4)
The Parties are entering into this Agreement to set forth the terms and
conditions under which Party A shall provide consulting and other related
services to Party B.
NOW THEREFORE, the Parties
agree as follows:
1.
DEFINITIONS
1.1 In
this Agreement the following terms shall have the following
meanings:
“Affiliate,”
with respect to any Person, shall mean any other Person that directly or
indirectly controls, or is under common control with, or is controlled by, such
Person. As used in this definition, “control” shall mean possession, directly or
indirectly, of power to direct or cause the direction of management or policies
(whether by ownership of securities or partnership or other ownership interests,
or by contract or otherwise);
“Consulting
Services Fee” shall be as defined in Clause 3.1;
“Indebtedness”
shall mean, as to any Person, any one of the following: (i) money borrowed by
such Person (including principal, interest, fees and charges) for the deferred
purchase price of any property or services, (ii) the face amount of all letters
of credit issued to such Person and all drafts drawn thereunder, (iii) all
liabilities secured by any Lien on any property owned by such Person, whether or
not such liabilities have been assumed by such Person, (iv) the aggregate amount
required to be capitalized under any lease for which such Person is the lessee,
or (v) all contingent obligations (including, without limitation, all guarantees
to third parties) of such Person;
“Lien”
shall mean any mortgage, pledge, hypothecation, assignment, deposit arrangement,
encumbrance, lien (statutory or other), preference, priority or other security
agreement of any kind or nature whatsoever (including, without limitation, any
conditional sale or other title retention agreement, any financing or similar
statement or notice filed under recording or notice statute, and any lease
having substantially the same effect as any of the foregoing);
“Person”
shall mean any individual, corporation, company, voluntary
association, partnership, joint venture, trust, unincorporated
organization, entity or other organization or any government body;
“PRC”
means the People’s Republic of China;
“Services”
means the services to be provided under the Agreement by Party A to Party
B, as more specifically described in Clause 2.
1.2 The
headings in this Agreement shall not affect the interpretation of this
Agreement.
2.
RETENTION AND SCOPE OF SERVICES
2.1 Party
B hereby agrees to retain the services of Party A, and Party A accepts
such appointment, to provide to Party B services in relation to the current
and proposed operations of Party B’s business in the PRC pursuant to the terms
and conditions of this Agreement (the “Services”).
The Services shall include, without limitation:
(a)
General Business Operation. Provide general advice and assistance relating
to the management and operation of Party B’s business.
(b) Human
Resources.
(i)
Provide general advice and assistance in relation to the staffing of Party
B, including assistance in the recruitment, employment and secondment of
management personnel, administrative personnel and staff of Party
B;
(ii)
Provide training of management, staff and administrative personnel;
(iii)
Assist Party B to establish an efficient payroll management system;
and
(iv)
Provide assistance in the relocation of Party B’s management and
staff;
(c)
Business Development. Provide advice and assistance in business growth and
development of Party B.
(d)
Other. Such other advice and assistance as may be agreed upon by the
Parties.
2.2
Exclusive Services Provider. During the term of this Agreement, Party A
shall be the exclusive provider of the Services. Party B shall not seek or
accept similar services from other providers without the prior written approval
of Party A.
2.3
Intellectual Property Rights Related to the Services. Party A shall own all
intellectual property rights developed or discovered through research and
development in the course of providing Services, or derived from the provision
of the Services. Such intellectual property rights shall include patents,
trademarks, trade names, copyrights, patent application rights, copyright and
trademark application rights, research and technical documents and materials,
and other related intellectual property rights including the right to license or
transfer such intellectual property rights. If Party B requires the use of Party
A’s intellectual property rights, Party A agrees to grant such intellectual
property rights to Party B on terms and conditions to be set forth in a separate
agreement.
2.4
Pledge. Party B shall permit and cause the owners of Party B to pledge
their equity interests in Party B to Party A for securing the payment of
the Consulting Services Fee as required pursuant to this Agreement.
3.
PAYMENT
3.1
General.
(a) In
consideration of the Services to be provided by Party A hereunder, Party B shall
pay to Party A a consulting services fee (the “Consulting Services Fee”) during
the term of this Agreement, payable in Renminbi (“RMB”) each quarter, equal to
all of Party B’s net income for such quarter based on the quarterly
financial statements provided under Clause 5.1 below. Such quarterly payment
shall be made within fifteen (15) days after receipt by Party A of the financial
statements referenced above.
(b) Party
B will permit, from time to time during regular business hours as reasonably
requested by Party A, its agents or representatives (including independent
public accountants, which may be Party B’s independent public accountants), (i)
to conduct periodic audits of the financial books and records of Party B, (ii)
to examine and make copies and abstracts from all books, records and documents
(including, without limitation, computer tapes and disks) in the possession or
under the control of Party B, (iii) to visit the offices and properties of Party
B for the purpose of examining such materials described in clause (ii) above,
and (iv) to discuss matters relating to the performance by Party B hereunder
with any of the officers or employees of Party B having knowledge of such
matters. Party A may exercise the audit rights described herein at any time,
provided that Party A provides a ten (10) day written notice to Party B
specifying the scope, purpose and duration of such audit. All such audits shall
be conducted in such a manner as not to interfere with Party B’s normal
operations.
3.2 Party
B shall not be entitled to set off any amount it may claim is owed to it
by Party A against any Consulting Services Fee payable by Party B to Party
A unless Party B first obtains Party A’s prior written consent.
3.3 The
Consulting Services Fee shall be paid in RMB by telegraphic transfer to Party
A’s bank account No.______________, or to such other account or accounts as may
be specified in writing from time to time by Party A.
3.4
Should Party B fail to pay all or any part of the Consulting Services Fee due
to Party A in RMB under this Clause 3 within the time limits stipulated,
Party B shall pay to Party A interest in RMB on the amount overdue based on the
three (3) month lending rate for RMB published by the Bank of China on the
relevant due date.
3.5 All
payments to be made by Party B hereunder shall be made free and clear and
without any consideration of tax deduction, unless Party B is required to make
such payment subject to the deduction or withholding of tax.
4.
FURTHER TERMS OF COOPERATION
All
business revenue of Party B shall be directed in full by Party B into a bank
account designated by Party A.
5.
UNDERTAKINGS OF PARTY A
Party B
hereby agrees that, during the term of the Agreement:
5.1
Information Covenants. Party B shall provide to Party A:
5.1.1
Preliminary Monthly Reports. Within five (5) days after the end of
each calendar month the preliminary income statements and balance sheets of
Party B made up to as of the end of such calendar month, in each case prepared
in accordance with the generally accepted accounting principles of the
PRC.
5.1.2
Final Monthly Reports. Within ten (10) days after the end of each
calendar month, a final report from Party B on the financial and business
operations of Party B as of the end of such calendar month, setting forth the
comparison of financial and operation figures for the corresponding period in
the preceding financial year, in each case prepared in accordance with generally
accepted accounting principles of the PRC.
5.1.3
Quarterly Reports. As soon as available and in any event within
forty-five (45) days after each Quarterly Period (as defined below),
unaudited consolidated and consolidating statements of income, retained
earnings and changes in financial positions of Party B and its subsidiaries for
such Quarterly Period, and for the period from the beginning of the relevant
fiscal year to such Quarterly Date, and the related consolidated and
consolidating balance sheets as of such Quarterly Period, setting forth in each
case the actual versus budgeted comparisons and a comparison of the
corresponding consolidated and consolidating figures for the corresponding
period in the preceding fiscal year, accompanied by a certificate of Party B’s
Chief Financial Officer, and such certificate shall state that the said
financial statements fairly represent the consolidated and consolidating
financial conditions and results of operations, as the case may be, of Party B
and its subsidiaries, in accordance with the general accepted accounting
principles of the PRC for such period (subject to normal year-end audit
adjustments and the preparation of notes for the audited financial statements).
For the purpose of this Agreement, a “Quarterly Period” shall mean the last day
of March, June, September and December of each year, the first of which shall be
the first Quarterly Period following the date of this Agreement; provided
that if any such Quarterly Period is not a business day in the PRC, then such
Quarterly Period shall be the next succeeding business day in the
PRC.
5.1.4
Annual Audited Accounts. Within 90 days after the end of the
financial year, Party B’s annual audited accounts (setting forth in each
case the comparison of the corresponding figures for the preceding
financial year), shall be prepared in accordance with the generally accepted
accounting principles of the PRC.
5.1.5
Budgets. At least ninety (90) days prior to the beginning of Party
B’s fiscal year, Party B shall prepare a budget in a form satisfactory to
Party A (including budgeted statements of income and sources and uses of cash
and balance sheets) for each of the four quarters of such fiscal year
accompanied by the statement of Party B’s Chief Financial Officer, to the effect
that, to the best of his or her knowledge, the budget is a reasonable estimate
for the corresponding period.
5.1.6
Notice of Litigation. Party B shall notify Party A, within one (1)
business day of obtaining the knowledge thereof, of (i) any litigation or
governmental proceeding pending against Party B which could materially adversely
affect the business, operations, property, assets, condition or prospects of
Party B, and (ii) any other event which is likely to materially adversely affect
the business, operations, property, assets, condition or prospects of Party
B.
5.1.7
Other Information. From time to time, such other information or documents
as Party A may reasonably request.
5.2
Books, Records and Inspections. Party B shall keep accurate books and
records of its business activities and transactions according with PRC’s
generally accepted accounting principles and all other legal requirements.
During an appropriate time and within a reasonable scope requested by Party A,
Party B will permit Party A’s officers and designated representatives to visit
the premises of Party B and to inspect, under the guidance of Party B’s
officers, Party B’s books and records, and to discuss the affairs, finances and
accounts of Party B.
5.3
Corporate Franchises. Party B will do or cause to be done, all things necessary
to preserve and keep in full force and effect its existence and maintain its
material rights and licenses.
5.4
Compliance with Laws. Party B shall abide by all applicable laws,
regulations and orders of all relevant governmental administration, in
respect to its business and the ownership of its property, including,
without limitation, maintenance of valid and proper governmental approvals
and licenses necessary to provide the services, unless such noncompliance
could not, in the aggregate, have a material adverse effect on the
business, operations, property, assets, condition or prospects of Party
B.
6.
NEGATIVE COVENANTS
Party B
covenants and agrees that, during the term of this Agreement, without the
prior written consent of Party A:
6.1
Equity. Party B will not issue, purchase or redeem any equity or debt
securities of Party B.
6.2
Liens. Party B will not create, incur, assume or suffer to exist any Lien upon
or with respect to any property or assets (real or personal, tangible or
intangible) of Party B whether existing or hereafter acquired, provided that the
provisions of this Clause 6.2 shall not prevent the creation, incurrence,
assumption or existence of:
6.2.1
Liens for taxes not yet due, or Liens for taxes being contested in
good faith and by appropriate proceedings for which adequate reserves have
been established; and
6.2.2
Liens in respect to Party B’s property or assets imposed by law, which were
incurred in the ordinary course of business, and (i) which do not in the
aggregate, materially detract from the value of Party B’s property or
assets or materially impair the use thereof in the operation of Party B’s
business or (ii) which are being contested in good faith by appropriate
proceedings and proceedings which have the effect of preventing the forfeiture
or sale of the property of assets subject to any such Lien.
6.3
Consolidation, Merger, Sale of Assets, etc. Party B will not wind up,
liquidate or dissolve its affairs or enter into any transaction of merger
or consolidation, or convey, sell, lease or otherwise dispose of (or agree
to do any of the foregoing at any future time) all or any part of its property
or assets, or purchase or otherwise acquire (in one or a series of related
transactions) any part of the property or assets (other than purchases or other
acquisitions of inventory, materials and equipment in the ordinary course of
business) of any Person, except that (i) Party B may sell inventory in the
ordinary course of business and (ii) Party B may sell equipment which is
uneconomic or obsolete, in the ordinary course of business.
6.4
Dividends. Party B will not declare or pay any dividends, or return any
capital, to its shareholders or authorize or make any other distribution,
payment or delivery of property or cash to its shareholders as such, or redeem,
retire, purchase or otherwise acquire, directly or indirectly, for a
consideration, any shares of any class of its capital stock now or hereafter
outstanding (or any options or warrants issued by Party B with respect to its
capital stock), or set aside any funds for any of the foregoing
purposes.
6.5
Leases. Party B will not permit the aggregate payments (including,
without limitation, any property taxes paid as additional rent or lease
payments) by Party B under agreements to rent or lease any real or personal
property to exceed US$1 million in any fiscal year of Party B.
6.6
Indebtedness. Party B will not contract, create, incur, assume or suffer to
exist any indebtedness, except accrued expenses and current trade accounts
payable incurred in the ordinary course of business, and obligations under
trade letters of credit incurred by Party B in the ordinary course of business,
which are to be repaid in full not more than one (1) year after the date on
which such indebtedness is originally incurred to finance the purchase of goods
by Party B.
6.7
Advances, Investment and Loans. Party B will not lend money or grant credit
or make advances to any Person, or purchase or acquire any stock,
obligations or securities of, or any other interest in, or make any capital
contribution to, any other Person, except that Party B may acquire and hold
receivables owing to it, if created or acquired in the ordinary course of
business and payable or dischargeable in accordance with customary trade
terms.
6.8
Transactions with Affiliates. Party B will not enter into any transaction or
series of related transactions, whether or not in the ordinary course of
business, with any Affiliate of Party B, other than on terms and conditions
substantially as favorable to Party B as would be obtainable by Party B at the
time in a comparable arm’s-length transaction with a Person other than an
Affiliate and with the prior written consent of Party A.
6.9
Capital Expenditures. Party B will not make any expenditure for fixed or
capital assets (including, without limitation, expenditures for maintenance
and repairs which are capitalized in accordance with generally accepted
accounting principles in the PRC and capitalized lease obligations) during
any quarterly period which exceeds the aggregate the amount contained in
the budget as set forth in Section 5.1.5.
6.10
Modifications to Debt Arrangements, Agreements or Articles of
Association. Party B will not (i) make any voluntary or optional payment or
prepayment on or redemption or acquisition for value of (including, without
limitation, by way of depositing with the trustee with respect thereto money or
securities before due for the purpose of paying when due) any existing
Indebtedness or (ii) amend or modify, or permit the amendment or modification
of, any provision of any existing Indebtedness or of any agreement
(including, without limitation, any purchase agreement, indenture, loan
agreement or security agreement) relating to any of the foregoing or (iii)
amend, modify or change its Articles of Association or business license, or any
agreement entered into by it, with respect to its capital stock, or enter into
any new agreement with respect to its capital stock.
6.11 Line of Business.
Party B will not engage (directly or indirectly) in any business other than
those types of business prescribed within the business scope of Party B’s
business license
except with the prior written consent of Party
A.
7. TERM
AND TERMINATION
7.1 This
Agreement shall take effect on the date of execution of this Agreement
and shall remain in full force and effect unless terminated pursuant to
Clause 7.2.
7.2 This
Agreement may be terminated:
7.2.1 By
either Party giving written notice to the other Party if the other
Party has committed a material breach of this Agreement (including, but not
limited to, the failure by Party B to pay the Consulting Services Fee) and such
breach, if capable of remedy, has not been so remedied within fourteen (14)
days, in the case of breach of a non-financial obligation, following the receipt
of such written notice;
7.2.2 By
either Party giving written notice to the other Party if the other
Party becomes bankrupt or insolvent or is the subject of proceedings or
arrangements for liquidation or dissolution or ceases to carry on business or
becomes unable to pay its debts as they become due;
7.2.3 By
either Party giving written notice to the other Party if, for any
reason, the operations of Party A are terminated;
7.2.4 By
either Party giving written notice to the other Party if the
business license or any other license or approval material for the business
operations of Party B is terminated, cancelled or revoked;
7.2.5 By
either Party giving written notice to the other Party if
circumstances arise which materially and adversely affect the performance
or the objectives of this Agreement; or
7.2.6 By
election of Party A with or without reason.
7.3 Any
Party electing to terminate this Agreement pursuant to Clause 7.2 shall
have no liability to the other Party for indemnity, compensation or damages
arising solely from the exercise of such termination right, provided that
the expiration or termination of this Agreement shall not affect the continuing
obligation of Party B to pay any Consulting Services Fees already accrued or due
and payable to Party A. Upon expiration or termination of this Agreement, all
amounts then due and unpaid to Party A by Party B hereunder, as well as all
other amounts accrued but not yet payable to Party A by Party B, shall thereby
become due and payable by Party B to Party A.
8. PARTY
A’S REMEDY UPON PARTY B’S BREACH
In
addition to the remedies provided elsewhere under this Agreement, Party A shall
be entitled to remedies permitted under PRC laws, including, without
limitation, compensation for any direct and indirect losses arising from the
breach and legal fees incurred to recover losses from such breach.
9.
AGENCY
The
Parties are independent contractors, and nothing in this Agreement shall be
construed to constitute either Party to be the agent, partner, legal
representative, attorney or employee of the other for any purpose whatsoever.
Neither Party shall have the power or authority to bind the other except as
specifically set out in this Agreement.
10.
GOVERNING LAW AND JURISDICTION
10.1
Governing Law. This Agreement shall be governed by, and construed in accordance
with, the laws of the PRC.
10.2
Arbitration. Any dispute arising from, out of or in connection with
this Agreement shall be settled through amicable negotiations between the
Parties. Such negotiations shall begin immediately after one Party has
delivered to the other Party a written request for such negotiation. If,
within ninety (90) days following the date of such notice, the dispute
cannot be settled through negotiations, the dispute shall, upon the request of
either Party with notice to the other Party, be submitted to arbitration in
China under the auspices of China International Economic and Trade Arbitration
Commission (the “CIETAC”). The Parties shall jointly appoint a qualified
interpreter for the arbitration proceeding and shall be responsible for sharing
in equal portions the expenses incurred by such appointment. The arbitration
proceeding shall take place in Shanghai, China. The outcome of the arbitration
shall be final and binding and enforceable upon the Parties.
10.2.1
Number and Selection of Arbitrators. There shall be three (3)
arbitrators. Party B shall select one (1) arbitrator and Party A shall
select one (1) arbitrator, and both arbitrators shall be selected within
thirty (30) days after giving or receiving the demand for arbitration. Such
arbitrators shall be freely selected, and the Parties shall not be limited in
their selection to any prescribed list. The chairman of the CIETAC shall select
the third arbitrator. If a Party does not appoint an arbitrator who consents to
participate within thirty (30) days after giving or receiving the demand for
arbitration, the relevant appointment shall be made by the chairman of the
CIETAC.
10.2.2
Arbitration Language and Rules. Unless otherwise provided by
the arbitration rules of CIETAC, the arbitration proceeding shall be
conducted in Chinese. The arbitration tribunal shall apply the arbitration
rules of the CIETAC in effect on the date of execution of this Agreement.
However, if such rules are in conflict with the provisions of this clause,
or with Section 10 of this Agreement, then the terms of Section 10 of this
Agreement shall prevail.
10.2.3
Cooperation; Disclosure. Each Party shall cooperate with the other Party
in making full disclosure of and providing complete access to all
information and documents requested by the other Party in connection with
such proceedings, subject only to any confidentiality obligations binding
on such Parties.
10.2.4
Jurisdiction. Judgment rendered by the arbitration may be entered into
by any court having jurisdiction, or application may be made to such court
for a judicial recognition of the judgment or any order of enforcement
thereof.
10.3
Continuing Obligations. The Parties shall continue their implementation of
this Agreement during the period when the relevant dispute is being
resolved.
11.
ASSIGNMENT
No part
of this Agreement shall be assigned or transferred by either Party without
the prior written consent of the other Party. Any such assignment or
transfer shall be void, provided that Party A may assign its rights and
obligations under this Agreement to an Affiliate without Party B’s
consent.
12.
NOTICES
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 prepaid mail or by a recognized courier
service or by facsimile transmission to the address of the other Party set forth
below or to such other address of the Party as 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, or the fourth (4th)
day after the delivery date of an internationally recognized courier service;
and (c) a notice sent by facsimile transmission is deemed duly served upon the
time shown on the transmission confirmation of relevant documents.
Party
A
Hebei
Anbang Investment Consultation Co., Ltd.
Address:
Inside of Baosheng Steel Product Company, Xx. 0 Xxxxxx
Xxxxxxxx
Xxxxxx (Xiaodingfu Part in the south of Jingha Road),
Xiadian
Town, Hui Autonomous County, China
Attn: LI,
Hongzhong
Fax:
Tel:
Party
B:
Dachang
Hui Autonomous County Baosheng Steel Products Co., Ltd.
Address:
Xxxxxxx Xxxx Xxxxxxxxxx Xxxx, Xxxxxxx Xxxxxx, Xxxxx.
Attn: LI,
Hongzhong
Fax:
Tel:
13.
GENERAL
13.1 The
failure or delay in exercising a right or remedy under this Agreement
shall not be constituted as a waiver of the right or remedy, and no single
or partial exercise of any right or remedy under this Agreement shall
prevent any further exercise of the right or remedy.
13.2
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.
13.3 This
Agreement constitutes the entire agreement between the Parties relating
to the subject matter of this Agreement and supersedes all previous
agreements.
13.4 No
amendment or variation of this Agreement shall be valid unless it is in
writing and executed by the Parties or their authorized
representatives.
13.5 This
Agreement shall be executed in two (2) duplicate originals in English.
Each Party shall receive one (1) duplicate original, and all originals
shall be equally valid.
[SIGNATURE
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