Consigned Management Service Agreement by and among Shanghai Atrip Medical Technology Co., Ltd. Anhante (Beijing) Medical Technology Co., Ltd. and The Individual Shareholders of Shanghai Atrip Medical Technology Co., Ltd. April 14, 2008
by
and among
Shanghai
Atrip Medical Technology Co., Ltd.
Anhante
(Beijing) Medical Technology Co., Ltd.
and
The
Individual Shareholders of Shanghai Atrip Medical Technology Co.,
Ltd.
April
14, 2008
Consigned
Business Management Agreement
This
Consigned Management Service Agreement (“this Agreement”) is entered into on
April 14, 2008 in Shanghai between the following Parties:
|
(1)
|
Shanghai
Atrip Medical Technology Co., Ltd
(hereinafter called “Party A”) as a limited liability company, is duly
incorporated in Shanghai, People’s Republic of China (“PRC”) whose legal
address is: Suite 0000-0X, Xxxxxxxx Xxxx, Xxxxxxxxx Xxxxxxxx,
Xxxxxxxx;
|
|
(2)
|
Anhante
(Beijing ) Medical Technology Co., Ltd.
(hereinafter called “Party B”), a wholly foreign owned enterprise
(“WFOE”), is duly incorporated in Beijing, whose legal address is
Xxxxx0000X-0, Xxxxx 00, Xxxxxxx Xxxxxxx Palaze, No. 9 Building, Manting
Fangyuan Community, Qingyunli, Haidian District,
Beijing;
|
| (3) |
The
Individual shareholders of Shanghai Atrip Medical Technology Co.,
Ltd.
(hereinafter
collectively called “Shareholders of Party A” or
“Shareholders”).
|
|
Name
of the
Shareholders
|
Shareholding
Ratio
(%)
|
ID
Card No.
|
Contact
Address
|
|||||||
|
Xxxx
Xxxxx
|
93.9
|
310106196809272814
|
Room
202, Xx.00 xx Xxxx 000, Xxxxxxx Xxxx, Xxxxxxxx
|
|||||||
|
Xxxx
Fang
|
4.25
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320504197607243041
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Xxxx000,
Xxxxxxxx 00, Xxxxxxxx Xxx Xxx, Xxxxxx, Xxxxxxx Xxxxxxxx.
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(Party
A,
Party B
and
Shareholders are collectively referred to as the “Parties” or “the Parties” in
this agreement, or individually as “a Party” or “each Party”.)
WHEREAS:
|
(1)
|
Party
A’s business scope is as follows: 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);
|
| (2) |
Party
B’s business scope is
developing the application of clinical laboratories technologies,
and
providing technical consultancy, services, and transfer;
|
|
(3)
|
The
Parties agree that Party A shall consign Party B to manage all its
business, finance and human
resources;
|
| (4) |
Shareholders
collectively hold 98.15% of equity interests in Party
A.
|
1
Consigned
Business Management Agreement
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, excluding the HongKong 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;
1.5
“Consigned Management 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 Services
| 2.1 |
Finance
Management Service
|
| 2.1.1 |
Target
|
Achieve
the scientific management of financial system of Party A.
| 2.1.2 |
Contents
of the Services
|
|
2.1.2.1
|
Provide
the information on financial and economic achievement
analysis
|
|
2.1.2.2
|
Conduct
the business instruction to the implementation of the deep development
of
the budget management; realize the “Budget enters the working group”
plan;
|
| 2.1.2.3 |
Facilitate
the money operation, adjust the structure of the credit loan, accelerate
the turn over of the money, and effectively control the finance
risks;
|
| 2.1.2.4 |
Arrange
the internal and outside audit
service;
|
| 2.1.2.5 |
Pursuant
to the requirement of the class-evaluation system, provide the optional
management plan and consultancy service on the financial
management;
|
| 2.1.2.6 |
Provide
the working cost management consultancy
service.
|
| 2.2 |
Business
Management Services
|
| 2.2.1 |
Target
|
Increase
the market share of Party A for the purpose of improving its ability on business
process and management.
2
Consigned
Business Management Agreement
| 2.2.2 |
Contents
|
| 2.2.2.1 |
Provide
relevant information relating to the products of Party A in both
domestic
and international market as well as the consultancy information on
the
analysis of market and future development tend;
|
| 2.2.2.2 |
Provide
the guide to the sales of Party A for the purpose improve their working
efficiency;
|
| 2.2.2.3 |
Provide
the consultancy services on the management of the whole process of
sales;
|
| 2.2.2.4 |
Assist
Party A on the communication with clients, conduct consultancy services
on
the increase of market share of Party A’s products;
|
| 2.2.2.5 |
Provide
services on the establishment of credit valuation system for the
clients
of Party A, assist Party A with improving its collection of receivables;
|
| 2.2.2.6 |
Provide
the consultancy services on the purchase of materials, inventory
control
and management of logistics.
|
| 2.3 |
Advertising
and Development Services
|
| 2.3.1 |
Target
|
Increase
the reputation of Party A in the supermarket sector by means of advertising
plan.
| 2.3.2 |
Contents
of Service
|
| 2.3.2.1 |
Advertising
Services
|
| (1) |
Provide
the detailed and practical marketing plans for Party A and adjust
from
time to time in accordance with the effect of such
plans;
|
| (2) |
Facilitate
Party A to select suitable advertising companies for the promotion
and
advertising of brand image;
|
| (3) |
Facilitate
Party A for the communication with advertising companies on behalf
of
Party A, and determine the detailed matters with respect to the
advertising plan;
|
| (4) |
Promptly
report to Party A in detail with respect to the achievement and effect
of
the advertising.
|
| 2.3.2.2 |
Development
Services
|
| (1) |
Conduct
research on the competitors of Party A, and provide related competition
strategies;
|
3
Consigned
Business Management Agreement
| (2) |
Conduct
research on the impression to the customers, and provide perfection
suggestions on the customer-services in accordance with the response
of
research.
|
| 2.4 |
Human
Resources Management Services
|
| 2.4.1 |
Target:
Aim to 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.
|
| 2.4.2 |
Contents
|
| 2.4.2.1 |
Recommend
and nominate the candidates of senior management staff
of Party A, its wholly owned and holding subsidiaries, and Party
A shall
appoint such candidates in accordance with the requirement of
the
position;
|
|
2.4.2.2
|
Facilitate
to perfect the organizational structure to improve the effects
of the management;
|
| 2.4.2.3 |
Establish
the labor management system for Party A, including without limitation
employment policies, training, systems of leaves and vocations, overtime
working, resignation, demission and
etc.;
|
| 2.4.2.4 |
Complete
the employees’ salary system including its senior management
staff;
|
| 2.4.2.5 |
Facilitate
to complete the working effectiveness assessment system of the employees
and perfect the salary incentive system;
|
| 2.4.2.6 |
Provide
training of labor management to the workers in the human resources
department of Party A;
|
| 2.4.2.7 |
Provide
consultancy services to Party A in relation to the labor policies
and
social insurance;
|
| 2.4.2.8 |
Facilitate
Party A to standardize the management of human resources and establishment
of related system.
|
| 2.5 |
Internal
Control Services
|
Party
B
shall assist Party A to establish internal control system and provide the proper
suggestions on the following systems:
(1)
System for use of stamp
(2)
System for collection of bills and checks
(3)
Budgeting management system
(4)
Assets management system
(5)
Quality management system
(6)
Authorization and agency system
(7)
Management system of the subsidiaries of Party A
4
Consigned
Business Management Agreement
Article
3 Consigned Management Service Fee
3.1
Party
A shall pay the Consigned Management Service Fee, equal to 12% of its total
revenue 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 last year’s Consigned Management Services Fee before
January 31stof
each
year.
3.3
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 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 (including its branches and subsidiaries) 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
(including its branches and subsidiaries) business target.
4.3
Without the prior written consent by Party B, Party A shall not change its
(including its branches and subsidiaries) systems and policies regarding the
business operation, management 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 (including its branches and
subsidiaries).
4.7
Provide information regarding the business operation, management and finance
of
Party A (including its branches and subsidiaries).
4.8
Promptly and proactively notify Party B of any matters that adversely affect
Party A.
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Consigned
Business Management Agreement
4.9
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
Promptly make full payment of Consigned Management Services Fee to Party B
in
accordance with the provisions hereunder.
4.11Without
the prior written consent by Party B, Party A shall not commit any act or
omission 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
Timely adjust and complete the services in accordance with the practical request
from Party A.
5.3
In
the event that Party B is proposed 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
6.1
To
secure the performance of the obligations assumed by Party A hereunder,
Shareholders agree to pledge all its 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 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.
8.2
The
Parties agree that Party B 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 Party A.
6
Consigned
Business Management Agreement
Article
9 Liability of Breach
9.1If
Party A fails to duly pay the Consigned Management Services 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 the
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
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 through
negotiation, provided Party B may, by giving a thirty -day prior notice to
the
other Parties hereto, terminate this Agreement.
10.4
If
Party B fails to provide the loan in accordance with the Loan Agreement signed
among the Parties on April 14, 2008, this Agreement shall be automatically
terminated.
Article
11 Confidentiality
11.1
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 Confidential Information, but the following circumstances shall be
excluded:
(1)
The
materials that is known or may be known by the Public (but not include the
materials disclosed by each Party receiving the Confidential
Information);
7
Consigned
Business Management Agreement
(2)
The
materials required to be disclosed subject to the applicable laws or the rules
or provisions of stock exchange; or
(3)
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 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. This Clause shall
survive whatever this Agreement is invalid, amended, revoked, terminated or
unable to implement by any reason.
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 that 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), government
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 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, any Party may submit the dispute
to Beijing Arbitration Commission for arbitration under its applicable rules,
the language of arbitration proceedings shall be Chinese. 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 provision of dispute
resolution.
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Consigned
Business Management 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 the original
parties 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: 5 business days after deposit in the mail; (2) personal delivery and
fax:
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: Xxxxx
Xxxxxxx
Address:
Xx. 0000-0X, Xxxxxxxx Xxxx, Xxxxxxxx, 000000
Tel:
000-00000000
Fax:
000-00000000
Party
B
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
The
Representative designated by the 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
14.4
This
Agreement is executed in four (4) originals with each party holding one
original, and each of the originals shall be equally valid and
authentic.
[Signature
Page Follows]
9
Consigned
Business Management Agreement
IN
WITNESS WHEREOF,
the
Parties hereto have caused this Agreement to be executed and delivered as of
the
date first written above.
Party
A Shanghai Atrip Medical Technology Co. Ltd.
Legal
Representative: Xxxx Xxxxx
Signature
and Common seal:
Party
B Anhante (Beijing)
Medical
Technology Co., Ltd.
Legal
Representative: Xxxx Xxxxx
Signature
and Common Seal:
The
Individual Shareholders of Shanghai
Atrip Medical Technology Co., Ltd.
Mr.
Xxxx Xxxxx, _________________________
Xx.
Xxxx Fang, __________________________
10
