Consigned Management and Technology Service Agreement by and among Beijing Ruijieao Bio-Technology Ltd. NeoStem (China), Inc. and The Shareholder of Beijing Ruijieao Bio-Technology Ltd. June 1, 2009
Exhibit
10.5
by
and among
Beijing
Ruijieao Bio-Technology Ltd.
NeoStem
(China), Inc.
and
The
Shareholder of Beijing Ruijieao Bio-Technology Ltd.
June
1, 2009
This
Consigned Management and Technology Service Agreement (“this Agreement”) is
entered into on June 1, 2009 between the following Parties:
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(1)
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Beijing Ruijieao Bio-Technology
Ltd. (“Party A”) is a limited liability company, duly incorporated
in in Beijing City, People’s Republic of China (“PRC”) whose legal address
is: Xxxx 0000 00/X, Xxxxxxxxxxxxxx Xxxxxxxx, Xx.0 Mantingfangyuan
Community, Xxxxxxx Xx, Haidian District, Beijing
City.
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(2)
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NeoStem (China), Inc.
(“Party B”), is a wholly foreign owned enterprise (“WFOE”) and duly
incorporated under PRC Laws, whose registered address is Xxxx 0000X,
Xxxxxxxx X, Xx.0 XxxxxXxxxXxxxx Xxxx, Xxxxxx District, Qingdao
City.
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(3)
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Sole shareholder of Beijing
Ruijieao Bio-Technology Ltd. (the
“Shareholder”)
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Name of the
Shareholder
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Shareholding
Ratio （%）
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ID Card No.
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Contact Address
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Fu
Wenyuan
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100
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No.27
Shandabei Road, Licheng District, Ji’nan
City
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(Party A,
Party B and the Shareholder are referred to collectively in this agreement as
the “Parties” or “the Parties”, and individually as “a Party” or “each
Party”.)
WHEREAS:
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(1)
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Party
A’s business scope is as follows: technology development, technology
transfer, technology consultation and technology
service;
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(2)
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Party
B’s business scope is the research & development, transfer and
technological consultation service of biotech technology, regenerative
medical technology and anti-aging technology (excluding the development or
application of human stem cell, gene diagnosis and treatment
technologies); consultation of economic information; import, export and
sales of machines and equipments (the import and export do not involve the
goods specifically stipulated in/by state-operated trade, import &
export quota license, export quota bidding, export permit, etc.) (The
aforesaid business scope should be operated with relevant permits if such
permits are required);
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1
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(3)
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The
Parties agree that, Party A consigns Party B to manage all its business
and human resources, etc., and engages Party B to provide technology
services such as the update and maintenance of internal software and
hardware, technology training and technology
support;
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(4)
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The
Shareholder holds 100% of equity interests of Party
A.
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NOW
THEREFORE, the Parties
hereby agree through friendly negotiation as follows:
Article
1 Definition
1.1 “PRC”
refers to the People’s Republic of China, for the purpose of this Agreement,
excluding the Hong Kong Special Administrative Region, Macao Special
Administrative Region and Taiwan Province；
1.2 “PRC
Laws” refers to all PRC laws, administrative regulations and government rules in
effect;
1.3 “RMB”
refers to the legal currency within the PRC;
1.4
“Party A Staff” refers to the senior management staff of Party A and the manager
of each plant;
1.5
“Consigned Management and Technology Service Fee” or “Consideration” refers to
the consideration as defined in Article 3.1 and paid to Party B by Party
A.
Article
2 Contents of Consigned Management and Technology Services
2.1
Contents of Consigned Management Services
2.1.1
Business Management Services
2.1.1.1
Target
Provide
services on management and staff training so as to enhance the professional
management and eventually promote economic achievement of Party A.
2.1.1.2
Contents
(1)
Training to Party A Staff
A. Latest
biotech industry knowledge training
B.
Related operating methods and skills training
C.
Preserve and maintenance of equipments training
D.
Management principals and skills training
(2)
Business Management
A.
Procedure management
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B.
Operation and technology management
C.
Equipment management
D. Field
management
E.
Quality management
F. Sales
and Marketing management
G.
Service management
2.1.2
Advertising and Development Services
2.1.2.1
Target
Improve
the economic benefits of the Company, ensure the healthy development of the
Company, improve the fame of the Company, establish the image of the Company,
gain the good reputation, contribute to the public welfare, and expand the
popularity of the Company.
2.1.2.2
Contents of Service
(1)
Advertising Services
A.
Products planning
B. Price
planning
E. Sales
planning
F.
Advertising planning
G.
Marketing planning
H.
Promotion planning
I. Public
relation planning
J. Brand
planning
K.
Corporate image planning
(2)
Development Services
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A.
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Conduct
research on the market and provide suggestions on the selection of
location and layout of new
businesses;
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B.
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Conduct
research on the impressions of customers, and provide suggestions for
perfection of customer services in accordance with the results of that
research.
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C.
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Conduct
research on the potential cooperative partners, and provide suggestions
for business expansion and cooperation development in accordance with the
results of that research.
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2.1.3
Human Resources Management Services
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2.1.3.1
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Target:
Achieve the proper distribution of human resources, maintain the stability
of the management team, and stimulate the employees to positively work so
as to increase the economic
achievement.
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3
2.1.3.2
Contents of Service
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(1)
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Recommend
and nominate the candidates of senior management staff of Party A, and
Party A shall appoint such candidates in accordance with the requirement
of the position;
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(2)
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Facilitate
to perfect the organizational structure to improve the effects of the
management;
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(3)
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Establish
the labor management system for Party A, including, but without
limitation, employment policies, training, systems of leaves and
vocations, overtime working, resignation, demission and
etc.;
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(4)
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Complete
the employees’ salary system including its senior management
staff;
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(5)
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Facilitate
to complete the working effectiveness assessment system of the employees
and perfect the salary incentive
system;
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(6)
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Provide
training of labor management in the human resources department of Party
A;
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(7)
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Provide
consultancy services to Party A in relation to the labor policies and
social insurance;
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(8)
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Facilitate
Party A to standardize the management of human resources and establishment
of related system.
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2.1.4
Internal Control Services
Party B
shall assist Party A to establish internal control system and provide the proper
suggestions on the following systems:
(1) Rules
for stamp usage
(2) Rules
for receipts and checks
(3) Rules
of budgeting management
(4)
Assets management system
(5)
Quality management system
(6)
Authorization and agency system
2.2
Contents of Technology Services
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2.2.1
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Select,
purchase and update the proper software in accordance with practical
requirements of Party A with respect to human resources and business
management, etc., and conduct training on the use of such software, and
provide relevant consulting
services.
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2.2.2
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Assist
with other related systems and software in accordance with the specific
requirements of Party A, and the relative costs shall be borne by Party
A.
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4
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2.2.3
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If
necessary, seek qualified network service companies to provide services to
Party A with respect to its application for the domain name and design of
website, assist Party A in communication with the network service company
on matters relating to the domain name and
website.
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2.2.4
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Assist
with the computers, server and other facilities in accordance with the
requirements of Party A.
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2.2.5
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Make
periodic maintenance and necessary update on hardware facilities in
accordance with the requirements of Party
A.
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2.2.6
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Conduct
technology training of the technical employees of Party
A.
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(1)
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Conduct
training to Party A for the operation of technologies with regard to
latest bio-technologies, regenerative medical technologies, anti-aging
technologies, etc.
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(2)
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Conduct
training to Party A with regard to research and development of relevant
technologies.
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(3)
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Strengthen
the training of Party A’s staff to use new apparatus and equipments,
quickly apply the new equipments into research and operation, and improve
the capacity and efficiency.
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2.2.7
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In
the event of occurrence of technical problems of Party A, Party B shall
designate relevant staff to perform on-site research for assisting Party A
to resolve such problems if
necessary.
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2.2.8
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Party
B shall be the sole and exclusive owner of all rights, title, interests
and intellectual property rights arising from the performance of this
Agreement (including but not limited to, any copyrights, patent, know-how,
commercial secrets and otherwise), regardless developed independently by
Party B or by Party A based on Party B’s intellectual property or by Party
B based on Party A’s intellectual property. Party A shall not claim
against Party B on any rights, ownership, interests or intellectual
property.
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If such
development is conducted on the basis of Party A’s intellectual property, Party
A shall ensure that such intellectual property is clear and free from any lien
or encumbrance or license, or Party A shall indemnify Party B any and all
damages incurred thereby. In case Party B shall be liable to any third party by
reason thereof, Party B shall be compensated in full by Party A as long as Party
B has compensated the third party.
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Article
3 Consigned Management and Technology Service Fee
3.1 Party
A shall pay the Consigned Management and Technology Service Fee, equal to 51-90
% of its total annual after-tax profit on a yearly basis as the Consideration of
services provided Party B as set forth in Article 2 hereunder.
3.2 Party
A shall pay to Party B the year’s Consigned Management and Technology Service
Fee before each calendar day of December 31st.
3.3
Whereas the daily business operations of Party A shall bear a material impact on
its capacity to make the payments due to Party B, the Shareholders of Party A
jointly agree that they will immediately and unconditionally pay or transfer to
Party B any bonus, dividends or any other incomes or benefits (regardless of the
forms) obtained from Party A as the shareholders of Party A at the time when
such payables occur and provide all necessary documents or take all necessary
actions required by Party B to realize such payment or transfer .
3.4 Party
B shall be entitled to request Party A in writing to adjust the Consideration in
accordance with the quantity and quality of the consigned services. The Parties
shall positively negotiate with each other in respect of the Consigned
Management and Technology Service Fee, and Party A shall agree with such
adjustment.
Article
4 Warranties and Undertakings by Party A
4.1
Within the term of this Agreement, Party B shall be the entity exclusively
consigned by Party A to provide the services as set forth in Article 2
hereunder, and Party A shall not consign any other entities to provide to Party
A any services same as or similar with those services provided in Article 2
hereunder.
4.2
Without the prior written consent by Party B, Party A shall not change its
business target.
4.3
Without the prior written consent by Party B, Party A shall not change its rules
and policies regarding the business operation, management, human resources and
finance.
4.4
Without the prior written consent by Party B, Party A shall not change its
internal control system.
4.5
Without the prior written consent by Party B, Party A shall not change its
internal organization.
4.6
Without the prior written consent by Party B, Party A shall not replace any
senior management staff itself.
4.7 Party
A shall provide Party B information regarding the business operation, management
and finance of Party A.
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4.8 Party
A shall promptly and proactively notify Party B of any matters that adversely
affect Party A.
4.9 Party
A shall give full cooperation to Party B, and provide assistance and convenience
to Party B for its on-site working, and shall not hinder Party B to provide
services as set forth in Article 2 hereunder.
4.10
Party A shall promptly make full payment of Consigned Management and Technology
Service Fee to Party B in accordance with the provisions hereunder.
4.11Without
the prior written consent by Party B, Party A shall not take any action that
would materially affect Party B’s rights and interests hereunder.
Article
5 Warrants and Undertakings by Party B
5.1 Party
B shall take advantage of its capacity and resources to provide the services as
stipulated in Article 2 hereunder.
5.2 Party
B shall timely adjust and improve the services in accordance with the practical
request from Party A.
5.3 In
the event that Party B proposes to provide services to any other entities
engaged in similar business as Party A, it shall give prior notice to Party A
and strictly keep the confidential information obtained during the course of
providing services to Party A .
5.4 Party
B shall accept any reasonable suggestions from Party A during the course of
providing services to Party A.
Article
6 Guaranty for this Agreement
6.1 To
secure the performance of the obligations assumed by Party A hereunder,
Shareholder agree to pledge all their equity interests in Party A to Party B,
and the Parties agree to execute the Equity Pledge Agreement with respect
thereto.
Article
7 Taxes and Expenses
7.1 The
Parties shall pay, in accordance with relevant PRC laws and regulations, their
respective taxes and fees arising from the execution and performance of this
Agreement.
Article
8 Assignment of the Agreement
8.1 Party
A shall not transfer part or all its rights and obligations under this Agreement
to any third party without the prior written consent of Party
B.
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Consigned
Management and Technology Service Agreement
8.2 The
Parties agree that Party B shall be entitled to transfer, at its own discretion,
any or all of its rights and obligations under this Agreement to any third party
upon a six (6) –day written notice to Party A.
Article
9 Liability of Breach
9.1 If
Party A fails to duly pay the Consigned Management and Technology Service Fee in
accordance with the provisions of Article 3 hereunder, then Party A shall pay
the liquidated damage per day equal to 0.03% of the unpaid Consideration which
falls due; if any delay of payment amounts to sixty (60) days, then Party B
shall be entitled to exercise the right of pledge under the Equity Pledge
Agreement.
9.2 If
Party A violates its representations and warranties hereunder and fails to
redress such violation within sixty (60) days upon receipt of written notice
from Party B, Party B shall be entitled to exercise the right of pledge under
the Equity Pledge Agreement.
9.3 If
Party B is in non-performance, or incomplete performance of this Agreement, or
is otherwise in default of any of its representations and warranties hereunder,
Party A shall be entitled to request Party B to redress its
default.
Article
10 Effect, Modification and Cancellation
10.1 This
Agreement shall take effect on the day of execution hereof, and the valid term
hereof shall be expired upon the day of completion of the acquisition of all or
the substantial part of assets or the equity of Party A by Party B or its
designated third party.
10.2 The
modification of this Agreement shall not be effective without written agreement
of the Parties through negotiation. If the Parties could not reach an agreement,
this Agreement remains effective.
10.3 This
Agreement shall not be discharged or canceled without written agreement of the
Parties through negotiation, provided Party B may, by giving a thirty (30)-day
prior notice to the other Parties hereto, terminate this Agreement.
Article
11 Confidentiality
11.1 Any
information, documents, data and all other materials (herein “Confidential
Information”) arising out of the negotiation, signing, content and implementing
of this Agreement, shall be kept in strict confidentiality by the Parties.
Without the written approval by the other Parties, none of the Parties shall
disclose to any third party any confidential information, but the following
shall not be considered to be “confidential information”:
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Consigned
Management and Technology Service Agreement
(1) The
materials that are known by the general public (but not include the materials
disclosed by a Party receiving the materials in breach of this
Agreement);
(2) The
materials required to be disclosed subject to the applicable laws or the rules
or provisions of any stock exchange; or
(3) The
materials disclosed by each Party to its legal or financial consultants relating
the transactions under this Agreement, provided the legal or financial
consultants shall comply with the confidentiality set forth in this Section. The
disclosure of the Confidential Information by staff or employed institution of
any Party shall be deemed as the disclosure of Confidential Information by such
Party, and such Party shall bear the liabilities for breaching the
contract.
11.2 If
this Agreement is terminated or becomes invalid or unenforceable, the validity
and enforceability of Article 11 shall not be affected or impaired.
Article
12 Force Majeure
12.1
“Force Majeure” refers to any 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), governmental acts, strikes
or riots.
12.2 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 Party 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.
Article
13 Governing Law and Dispute Resolution
13.1 The
effectiveness, interpretation, implementation and dispute-resolution related to
this Agreement shall be governed under the PRC Laws.
13.2 Any
dispute arising out of this Agreement shall be resolved by the Parties through
friendly negotiation. If the Parties could not reach an agreement within thirty
(30) days since the dispute is brought forward, each Party may submit the
dispute to Qingdao Arbitration Commission for arbitration under its applicable
rules. The arbitration award should be final and binding upon the
Parties.
13.3
During the process of dispute-resolution, the Parties shall continue to perform
other terms under this Agreement, except for provisions subject to dispute
resolution.
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Consigned
Management and Technology Service Agreement
Article
14 Miscellaneous
14.1 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.
14.2 This
Agreement shall bind and benefit the successor of each Party and the transferee
permitted hereunder with the same rights and obligations as if such successor or
transferee were an original party hereof.
14.3 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: five (5) business days after deposit in the mail; (2) personal delivery
and fax: the next business day 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: Fu Wenyuan
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Address:
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Room
2007 00/X, Xxxxxxxxxxxxxx Xxxxxxxx, Xx.0 Mantingfangyuan Community,
Xxxxxxx Xx, Haidian District, Beijing
City.
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Tel:
Fax:
Party
B:
Contact
person: Xxxxx Xxxxx
Address:
Tel:
Fax:
The Shareholder
Contact
person: Fu Wenyuan
Address:
Xx.00 Xxxxxxxxx Xxxx, Xxxxxxx Xxxxxxxx, Ji’nan City
Tel:
Fax:
14.4 This
Agreement is executed in three (3) originals with each Party holding one
original, and each of the originals shall be equally valid and
authentic.
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Consigned
Management and Technology Service Agreement
14.5
Whenever the consent of Party B is required under this Agreement, such consent
shall not be effective unless such consent is also provided by either the sole
shareholder, or the Executive Director, of Party B.
IN WITNESS WHEREOF, the
Parties hereto have caused this Agreement to be executed and delivered as of the
date first written above.
Party
A Beijing Ruijieao Bio-Technology Ltd.
Legal
Representative: Fu Wenyuan
Signature
and Company seal:
/s/ Fu
Wenyuan
Party
B NeoStem (China), Inc.
Legal
Representative: Xxxxx Xxxxx
Signature
and Company Seal:
/s/ Xxxxx
Xxxxx
The
Shareholder of Beijing Ruijieao Bio-Technology Ltd.
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Name of the
Shareholder
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Signature
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Fu
Wenyuan
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/s/
Fu Wenyuan
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