EXHIBIT 10.4
[EXECUTION VERSION]
SHARE TRANSFER AND DEBT RESTRUCTURING AGREEMENT
RELATING TO
BEIJING WANWEI PHARMACEUTICAL CO. LTD.
BETWEEN
BEIJING WANHUI PHARMACEUTICAL GROUP
AND
BEIJING MED-PHARM CORPORATION
DATED DECEMBER 15, 2004
CONTENT
CLAUSE PAGE
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RECITALS................................................................................................... 1
ARTICLE 1 SHARE TRANSFER.................................................................................. 2
ARTICLE 2 DEBT RESTRUCTUING AND CONSIDERATRION FOR THE SHARE TRANSFER..................................... 4
ARTICLE 3 ARRANGEMENTS DURING TRANSITION PERIOD........................................................... 8
ARTICLE 4 REPRESENTATIONS, WARRANTIES AND UNDETAKINGS..................................................... 8
ARTICLE 5 EFFECTIVENESS AND TERMINATION................................................................... 11
ARTICLE 6 FORCE MAJEURE................................................................................... 12
ARTICLE 7 BREACH OF CONTRACT.............................................................................. 12
ARTICLE 8 DISPUTE RESOLUTION.............................................................................. 13
ARTICLE 9 GOVERNING LAW................................................................................... 14
ARTICLE 10 NOTICES......................................................................................... 14
ARTICLE 11 MISCELLANEOUS PROVISIONS........................................................................ 14
SIGNATURE PAGE............................................................................................. 16
SCHEDULE 1................................................................................................. 18
SCHEDULE 2................................................................................................. 22
SCHEDULE 3A................................................................................................ 23
SCHEDULE 3B................................................................................................ 24
SCHEDULE 3C................................................................................................ 25
SCHEDULE 3D................................................................................................ 26
SCHEDULE 4................................................................................................. 28
SCHEDULE 5................................................................................................. 38
SCHEDULE 6................................................................................................. 39
SCHEDULE 7................................................................................................. 44
SCHEDULE 8................................................................................................. 51
SHARE TRANSFER AND DEBT RESTRUCTURING AGREEMENT
This Share Transfer and Debt Restructuring Agreement (this "AGREEMENT") is made
in Beijing on December 15, 2004 by and between:
(1) BEIJING WANHUI PHARMACEUTICAL GROUP ("WANHUI GROUP"), a wholly state owned
enterprise organized and existing under the laws of the People's Republic
of China (the "PRC"), with its domicile at Xx. 000, Xxxxxxxxx Xx Xx Xxx,
Xxxxxxx Xxxxxxxx, Xxxxxxx, legal representative being Xxxxxx Xxxx;
(2) BEIJING MED-PHARM COPORATION ("BMP"), a corporation organized under the
laws of the State of Delaware, the United States, with its domicile at
0000 Xxxx Xxxxxx, Xxxxxxxx, XX 00000, legal representative being Xxxxxxxx
Xxx (Title: Chief Executive Officer and President; Nationality: USA).
Wanhui Group and BMP hereinafter individually referred to as a "PARTY" and
collectively referred to as the "PARTIES".
RECITALS
(1) WHEREAS, Beijing Wanwei Pharmaceutical Co., Ltd. (the "COMPANY") is a
limited liability company established under the laws of the PRC, with its
registered capital being RMB5,880,000.00 yuan. Wanhui Group holds 80% of
its equity interests, and Wen Xinholds the remaining 20%;
(2) WHEREAS, meanwhile Wanhui Group is a creditor of the Company. Since the
Company is not able to discharge its indebtedness due and payable to
Wanhui Group, Wanhui Group wishes to restructure the debt of the Company
pursuant to the terms and conditions of this Agreement with the
participation of BMP and to transfer its equity interests in the Company
to BMP;
(3) WHEREAS, BMP agrees to acquire Wanhui Group's equity interests in the
Company and to participate in the debt restructuring of the Company as per
the terms and conditions of this Agreement;
(4) WHEREAS, BMP has entered into a Share Transfer Agreement with Wen Xin, the
other shareholder of the Company, on the date hereof to acquire [name of
the other shareholder of the Company]'s equity interests in the Company;
(5) WHEREAS, Wanhui Group and Wen Xin agree to increase the registered capital
of the Company from the current RMB5,880,000.00 yuan to US$ 1,750,000, and
the amount of increased capital US$1,039,000 shall be fully subscribed by
BMP;
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(6) WHEREAS, both Parties acknowledge that the contemplated share transfer,
capital increase and the debt restructuring of the Company shall be
completed in compliance with the requirements of the relevant laws and
regulations of the PRC and the provisions of the Articles of Association
of the Company;
(7) WHEREAS, the Company has reported to the employees' representative meeting
in respect of the restructuring of the Company with the participation of
foreign investment. And Beijing Pharmaceutical Group Co., Ltd., its
state-owned assets administration entity, has agreed with the contemplated
debt restructuring and share transfer hereunder.
NOW, THEREFORE Wanhui Group and BMP hereby agree as follows:
ARTICLE 1 SHARE TRANSFER
1.1 Wanhui Group agrees to transfer to BMP and BMP agrees to acquire from
Wanhui Group the 80% equity interest (the "TRANSFERRED SHARES") held by
Wanhui Group in the Company on the terms and conditions of this Agreement.
Wanhui Group agrees that BMP shall fully subscribe the amount of the
increased capital of the Company (the "AMOUNT OF INCREASED CAPITAL"),
x.x.XX$1,039,000. BMP shall contribute such Amount of Increased Capital to
the Company in accordance with the provisions of the revised and restated
Articles of Association of the Company.
1.2 Both Parties agree that from the date when all of the following conditions
precedent have been satisfied (the "DATE OF TRANSFER"), BMP shall be the
owner of the Transferred Shares and become the shareholder of the Company:
(1) For the purpose of the transactions hereunder, Wanhui Group has been
provided by Xxx Xxx Certified Accounting Firm with the Asset
Evaluation Report (summary attached hereto as Schedule 1) with the
base date being April 30, 2004 (the "BASE DATE"). And such report
has been filed with Beijing State-owned Assets Administration Bureau
or its authorized entity, Beijing Pharmaceutical Group Co., Ltd.;
(2) Beijing State-owned Assets Administration Bureau or its authorized
entity, Beijing Pharmaceutical Group Co., Ltd., has approved the
terms and conditions of the debt restructuring and share transfer
provided in this Agreement;
(3) Wanhui Group has listed the Transferred Shares at Beijing Equity
Exchange and BMP has become the transferee of the Transferred
Shares;
(4) The share transfer contemplated under this Agreement, the share
transfer
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contemplated under the Share Transfer Agreement between BMP and
[name of the other shareholder of the Company], and the revised
Articles of Association of the Company have been approved by the
Ministry of Commerce or its authorized authority (the "EXAMINATION
AND APPROVAL AUTHORITY") and the Company has been issued with an
Approval Certificate of Foreign Investment Enterprise;
(5) Beijing Drug Administration Bureau has renewed the Pharmaceutical
Distribution License of the Company for an additional five years and
has approved the change of legal representative and other issues (if
any) thereon;
(6) The amendment registration in respect of the share transfer
contemplated hereunder, the share transfer contemplated under the
Share Transfer Agreement between BMP and Wen Xin, and the revised
Articles of Association of the Company has been effected with
Beijing Administration for Industry and Commerce (the "REGISTRATION
AUTHORITY"); and
(7) There shall have been no material adverse change in the financial
condition, operations or business prospects of the Company during
the Transition Period, as such terms are defined in Article 3.1,
with the exception of any such material adverse change resulting
from an action or inaction taken by the Company with the approval of
the Supervision Committee as such terms are defined in Article 3.1.
Upon the completion of the share transfer hereunder and the share transfer
as contemplated under the share transfer agreement between BMP and [name
of the other shareholder of the Company], BMP shall become the sole
shareholder of the Company, and the Company shall be converted into a
wholly foreign owned enterprise pursuant to the PRC law.
1.3 Wanhui Group confirms that, prior to the execution of this Agreement, the
shareholders' meeting of the Company has adopted a valid resolution
approving the transfer of the Transferred Shares to BMP from Wanhui Group,
the subscription by BMP of the Amount of Increased Capital and the
corresponding amendments to the Articles of Association of the Company.
1.4 Wanhui Group confirms that Wen Xin has waived its right of first refusal
with respect to the Transferred Shares prior to the execution of this
Agreement, and its consent letter is attached hereto as Schedule 2.
1.5 No later than three (3) months after the date hereof, both parties shall
cause the Company to submit this Agreement, the revised Articles of
Association of the Company and an original copy of the duly signed
resolution referred to in Article 1.3 above together with other necessary
application documents to the Examination and Approval Authority.
1.6 Both Parties shall take their best endeavour to obtain the approval from
the Examination and Approval Authority, to assist the Company in going
through the amendment registration
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formalities with the Registration Authority and to obtain other government
approval, verification or registration which are required for the purpose
to implement the share transfer and debt restructuring hereunder.
ARTICLE 2 DEBT RESTRUCTUING AND CONSIDERATRION FOR THE SHARE TRANSFER
2.1 Debts to be restructured
Wanhui Group hereby represents and confirms that the following credit
rights and debt between the Company and itself shall be restructured in
accordance with the terms and conditions of this Agreement:
(1) RMB50,160,000.00 yuan owing to Wanhui Group by the Company as of the
Base Date, including the principal and interests accrued thereon,
the breakdown of which has been confirmed by Wanhui Group and the
Company in writing and attached hereto as Schedule 3 (A); Wanhui
Group confirms that such amount has contained all amounts owing to
it by the Company as of the Base Date, excluding those incurred as a
result of the normal business transactions with the Company;
(2) RMB12,820,000.00 yuan owing to the Company by Wanhui Group as of the
Base Date (no interest was charged thereon), which does not include
any debt incurred in its normal course of business with Wanhui
Group, and the breakdown of which has been confirmed by Wanhui Group
and the Company in writing and attached hereto as Schedule 3 (B);
(3) RMB7,000,000.00 yuan owing to Wanhui Group by the Company incurred
after the Base Date, excluding any accrued interest thereon, the
breakdown of which has been confirmed by Wanhui Group and the
Company in writing and attached hereto as Schedule 3 (C); Wanhui
Group confirms that such amount has contained all amounts owing to
it by the Company from the Base Date till the date hereof, excluding
those incurred as a result of the normal business transactions with
the Company.
2.2 Debt Restructuring and the Payment of Considerations for Share Transfer
As conditions to the share transfer hereunder, both Parties agree to have
the credit rights and debts between Wanhui Group and the Company provided
in Article 2.1 restructured as follows:
2.2.1 Set-off of the credit rights and indebtedness
As the pre-condition for BMP to acquire the Transferred Shares from Wanhui
Group and perform its obligations provided in Articles 2.2.2 and 2.2.3
herebelow, Wanhui Group
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agrees that:
(1) No interests shall be accrued on the amount owing to Wanhui Group by
the Company as set forth in Article 2.1(1) from the Base Date;
(2) The amount owing to Wanhui Group by the Company under Article 2.1(1)
shall be set off against the amount owing to the Company by Wanhui
Group under Article 2.1(2) on the date hereof. The confirmation
letter issued by Wanhui Group and the Company with respect to their
mutual acknowledgement to such set-off is attached hereto as
Schedule 3(D).
After the set-off mentioned above, the net amount owing to Wanhui Group by
the Company which shall be restructured in accordance with the provisions
herebelow shall be RMB 44,340,000.00 yuan or other amount as adjusted as
per Article 2.4 hereof.
2.2.2 Debt to be paid by BMP on behalf of the Company
As one of the considerations for transferring the Transferred Shares by
Wanhui Group to BMP, BMP agrees to pay Wanhui Group as per this Article
2.2.2.
(1) With respect to the net debt owing to Wanhui Group by the Company as
provided in Article 2.2.1(2), BMP agrees to pay RMB 8 million yuan
or other amount as adjusted as per Article 2.4 herein (the "DEBT TO
BE PAID BY BMP") in accordance with the terms and conditions
hereunder;
(2) Within ten (10) working days from the date hereof, BMP shall
pay,through the Company,Wanhui Group 30% of the Debt to be Paid by
BMP as down payment ("DOWN PAYMENT").
Should this Agreement be terminated due to Wanhui Group, Wanhui
Group shall return BMP the Down Payment plus the interest thereon
calculated at prevailing deposit interest rate with the same tenure
within five (5) working days upon the receipt of payment notice from
BMP.
Should this Agreement be terminated due to BMP, Wanhui Group will
not return the Down Payment.
Should this Agreement be terminated due to reasons neither
attributable to Wanhui Group nor BMP, Wanhui Group shall return BMP
the Down Payment plus the interest thereon calculated at prevailing
deposit interest rate with the same tenure within five (5) working
days upon the receipt of payment notice from BMP.
(3) Subject to the satisfaction of the following conditions, BMP shall,
through the Company, pay Wanhui Group the rest of the Debt to be
Paid by BMP within thirty
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(30) working days after the Date of Transfer:
(a) All the Schedules hereof have been executed pursuant to the
provided form and have become effective; and
(b) Wanhui Group has not violated any of its representations,
warranties and undertaking made hereunder.
Except otherwise mutually agreed in writing, BMP shall be entitled
to terminate this Agreement if the above conditions fail to be
satisfied within three (3) months after the Date of Transfer.
(4) BMP shall make payment in accordance with this Article 2.2.2 in
equivalent US dollars amount calculated at the average rate between
US dollars and RMB promulgated by the People's Bank of China on the
date of payment. Wanhui Group shall notify BMP in writing of its
bank account to receive such payments and the payment itinerary in
advance.
2.2.3 Debt to be paid via loan arranged by BMP
In addition to Article 2.2.2, as the other consideration for transferring
the Transferred Shares by Wanhui Group to BMP, BMP agrees to arrange
entrusted loan to the Company as per this Article 2.2.3 in order to enable
the Company to repay Wanhui Group in accordance with the following
provisions.
(1) With respect to the net debt owing to Wanhui Group by the Company as
provided in Article 2.2.1(2), BMP agrees to arrange a lender to
provide entrusted loan to the Company in order to enable the Company
to repay RMB7 million yuan (the "DEBT PAID VIA ARRANGEMENT BY BMP")
to Wanhui Group;
(2) The Company, the lender arranged by BMP and CITIC Industrial Bank
shall enter into an entrusted loan contract substantially complying
with Schedule 4 hereof on the date hereof. The facility amount shall
be applied to repay Wanhui Group the amount owing to Wanhui Group
set forth in Clause 2.2.3(1) within five (5) working days as of the
date hereof;
(3) Should this Agreement be terminated due to Wanhui Group, and the
Company fail to repay the lender arranged by BMP the principal and
interest due plus all reasonable expenses incurred by the lender
arranged by BMP with regard to such entrusted loan, including but
not limited to the commission fees thereon (if any), Wanhui Group
agrees that, as the guarantor of the Company, it shall pay the
lender arranged by BMP any amount payable by the Company on behalf
of the Company within five (5) working days after the receipt of the
notice of repayment from CITIC Industrial Bank.
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Should this Agreement be terminated due to BMP, the Company shall
not be obligated to repay the lender arranged by BMP the interest
due and payable. The Company shall repay the lender arranged by BMP
the principal within two (2) working days after CITIC Industrial
Bank issues notice of repayment. If the Company fails to repay the
principal, Wanhui Group agrees that, as the guarantor of the
Company, it shall pay such principal to the lender arranged by BMP
on behalf of the Company within five (5) working days after the
receipt of the notice of repayment from CITIC Industrial Bank.
Should this Agreement be terminated due to reasons neither
attributable to Wanhui Group nor BMP, and the Company fail to repay
the lender arranged by BMP the principal and interest due plus all
reasonable expenses incurred by the lender arranged by BMP with
regard to such entrusted loan, including but not limited to the
commission fees thereon (if any), Wanhui Group agrees that, as the
guarantor of the Company, it shall pay the lender arranged by BMP
any amount payable by the Company on behalf of the Company within
five (5) working days after the receipt of the notice of repayment
from CITIC Industrial Bank.
2.2.4 Debt to be forgiven
As a pre-condition to BMP's acquisition of the Transferred Shares from
Wanhui Group and BMP's performance of its obligations provided in the
above-mentioned Articles 2.2.2 and 2.2.3, Wanhui Group agrees that, as of
the date hereof, except for the Debt to be Paid by BMP and Debt Paid via
Arrangement by BMP, the Company shall be exempted from paying the rest of
the net debt provided in Article 2.2.1(2), including the principal and
accrued interests, totalling RMB29,340,000.00 yuan or other amount as
adjusted as per Article 2.4 herein (the "FORGIVEN DEBT").
2.3 In consideration that BMP performs its obligations under Articles 2.2.2
and 2.2.3 herein, Wanhui Group agrees and confirms that BMP shall not be
obligated to pay any additional amount with respect to the Transferred
Shares.
2.4 Both Parties confirm that the credit and debt amount provided in Articles
2.1(1) and 2.1(2) are based on the Asset Evaluation Report issued by Xxx
Xxx Certified Accounting Firm.
Both Parties agree that the amounts of the Debt to be Paid by BMP and/or
the Forgiven Debt shall be adjusted accordingly should substantial
mistakes be found in the said evaluation report or the net assets of the
Company changes substantially during the period from the Base Date to the
date hereof. Where the net assets of the Company changes beyond RMB
200,000.00 yuan as confirmed by a PRC certified public accountants
mutually recognized by both parties in accordance with PRC accounting
system, the amounts of the Debt to be Paid by BMP shall be increased or
decreased by such amount. However, any change to the net assets arising
from the debt restructuring shall not be calculated for such
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purpose.
Both parties agree that if the Company need pay any tax due to the debt
restructuring, the Debt to be Paid by BMP shall be reduced accordingly by
such amount.
ARTICLE 3 ARRANGEMENTS DURING TRANSITION PERIOD
3.1 Both Parties shall take all necessary measures to ensure the proper
operation and smooth transition of the Company between the date hereof and
the Date of Transfer ("TRANSITION PERIOD"). Both parties agree that BMP,
Wanhui Group and [the other shareholder] shall appoints respective
delegates to establish a supervision committee. Such committee shall be
composed of seven members, with BMP appointing three, Wanhui Group
appointing three, the other shareholder appointing one. The chairman of
the supervision committee shall be from the delegates appointed by BMP.
Any major decisions shall not be concluded unless approved by half
(inclusive) of all the members of the supervision committee. No major
business decision of the Company shall be made without prior consent of
such supervision committee.
3.2 During the Transition Period, Wanhui Group shall not enter into agreement
or document related to the Transferred Shares with any third party,
including but not limited to the transfer of the Transferred Shares in
whatever means, pledge or any kinds of disposal of the Transferred Shares.
3.3 Wanhui Group agrees that the Company will not make dividend distribution,
in whatever manner, during the Transition Period. BMP shall be entitled to
delegate its financial personnel to supervise the financial operation of
the Company.
ARTICLE 4 REPRESENTATIONS, WARRANTIES AND UNDETAKINGS
4.1 Each Party represents and warrants to the other Party that, on the date
hereof, the Date of Transfer and each payment date:
(1) It has full power and authorization to execute and perform this
Agreement and its Schedules;
(2) This Agreement shall be legally binding on such Party as of the
Effective Date; the execution and performance of this Agreement and
its Schedules to which it is a party does not violate its Articles
of Association or the provisions of any contracts, agreements or
other legal documents to which it is a party; and
(3) No lawsuit, arbitration or other legal or governmental proceeding is
pending or threatened against it that would affect its ability to
perform its obligations under this
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Agreement.
4.2 Wanhui Group hereby represents and warrants to BMP that, on the date
hereof, the Date of Transfer and each payment date:
(1) The Company is legally incorporated and duly existing under PRC law,
having all powers and government authorization, permit, consent and
approval which are required for it to carry out its current
business, which will not be terminated or prejudiced or may be
terminated due to the transactions hereunder;
(2) Wanhui Group is the sole legal owner of the Transferred Shares. The
Transferred Shares shall be free of any security interest or any
third party dispute;
(3) Except expressly provided in this Agreement and its Schedules, the
execution and performance of this Agreement and each Schedule to
which it is a party shall not be subject to any government approval,
verification or filling requirement, nor requiring any consent,
permit or approval of any third party;
(4) Except for the interest accrued under the loan provided under
Schedule 3C, the aggregate principal amount and accrued interest
owed by the Company to Wanhui Group or any of its affiliates is RMB
57,160,000.00 yuan and after BMP and/or the Company pays an
aggregate RMB 15,000,000.00 yuan or other amount adjusted as per
Article 2.4 herein to Wanhui Group in accordance with the terms of
this Agreement, neither BMP nor the Company shall have any further
monetary obligations to Wanhui Group or any of its affiliates.
"Affiliate" in the Agreement means "(i) any entity that, directly or
indirectly through one or more intermediaries, controls Wanhui Group
or is controlled by Wanhui Group or controlled by the same one or
more intermediaries as Wanhui Group does and (ii) any entity in
which Wanhui Group has an equity interest greater than
10% (inclusive).
(5) Except as set forth on Schedule 5, the Company does not owe any
principal amount and/or accrued interest to any third party other
than those arising from normal business transaction.
(6) The number of the existing employees of the Company is eighty-two
(82), among which, five (5) are engaged as per respective service
agreement. The Company has entered into labor contracts with the
rest seventy-seven (77) employees. Except for salary, social
insurance, economic compensation (if any) and service fee which are
stipulated in relevant labour contracts, service agreement and
disclosed in Schedule 6, the Company has no monetary obligations to
current employees.
(7) There are no pending or threatened labour disputes between the
Company and its existing employees and those who used to be employed
by the Company. And there exist no situations which may give rise to
labour disputes. The Company has no
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monetary obligations to any former employees of the Company which
have been terminated and such employees have no legal right which
would require the Company to rehire such former employees.
(8) Materials provided to BMP by Wanhui Group directly or via the
Company (list of which is attached hereto as Schedule 6) are true,
accurate and complete. Such materials truly and fairly reflect the
whole assets, actual and contingent liabilities including all
provisions, tax and social welfare, financial situation of the
Company on relevant date and operation results of relevant periods.
Such materials have accurately reflected and disclosed all
particular items. There exist no other rights or liabilities, actual
or contingent, except for those which have been disclosed in this
Agreement including the Schedules hereto;
(9) There exists no pending or threatened lawsuit, arbitration, and
government proceedings against the Company. And there have not
incurred any events prior to the date hereof which may give rise to
any such lawsuit, arbitration or government proceedings;
(10) The Company shall maintain stability of its current management and
key employees;
(11) The Company has been operating lawfully since its incorporation and
there has been no material violation of law; and
(12) It is the legal owner of the offices and warehouse which the Company
is using for the time being. It has the full right to lease such
properties to the Company in accordance with the document set forth
in Schedule 7 and Schedule 8. It will be responsible for obtaining
all required approvals and going through all relevant registration
formalities and bearing relevant fees arising therefrom on its own
cost to make the lease provided in such Schedules legal and valid.
Should Schedules 8 cannot be performed, in part or in whole, for
reason not caused by the Company, Wanhui Group shall find the
Company other premises which will be identically furnished as the
current warehouse on same or better terms and conditions.
Should it fail to find such substitute, it shall be obligated to
compensate all costs and expenses the Company sustains in finding
such a substitute.
(13) The person who execute this Agreement for and on behalf of Wanhui
Group shall be the legal representative of Wanhui Group or his/her
authorized representative, and has right to execute this Agreement
on behalf of Wanhui Group
4.3 BMP hereby represents and warrants to Wanhui Group that:
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(1) BMP is legally incorporated and duly existing under the law of
Delaware, having all powers and government authorization, permit,
consent and approval which are required for it to carry out its
current business, which will not be terminated or prejudiced or may
be terminated due to the transactions hereunder;
(2) BMP shall provide all documents required for going through the share
transfer, and guarantee the truthfulness and legality of such
documents.
(3) After the Date of Transfer, it will cause the Company to select the
qualified ones from existing key managerial and technical personnel
and engage them to proper positions to ensure the continuity and
stability of the management and operation team of the Company;
(4) It will cause the Company to allocate the existing employees
properly in accordance with the labour laws and regulations and
relevant employment contracts; However, it will cause the Company to
renew the employment contracts with those employees, the tenure of
whose employment contracts is less than one year as of the Date of
Transfer;
(5) It shall increase the registered capital of the Company to US$
1,750,000 as per the revised Articles of Association of the Company;
and
(6) It shall pay the Debt to be Paid by BMP and arrange the entrusted
loan in accordance with the terms and conditions of this Agreement;
and
(7) The person who executes this Agreement for and on behalf of BMP
shall be the legal representative of BMP or his/her authorized
representative, and has right to execute this Agreement on behalf of
BMP.
4.4 Both Parties confirm that the execution and performance of this Agreement
by any Party is in reliance on the above representations and warranties.
Should any Party find any change with respect to the above prior to the
Date of Transfer or any payment date, it shall promptly inform the other
Party in writing. Except otherwise provided herein, both Parties shall
negotiate to find solution.
ARTICLE 5 EFFECTIVENESS AND TERMINATION
5.1 Effectiveness
This Agreement shall be formed upon the signing by the legal
representatives or the authorized representatives of the Parties and/or
being affixed with their official chops, and the part related to the share
transfer will become effective from the date when approved by
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the Examination and Approval Authority.
5.2 Termination
This Agreement may be terminated if any of the following situations
occurs:
(1) If the transfer of the Transferred Shares to BMP has not been
submitted to the Examination and Approval Authority, or the
application has been rejected within three (3) months after the date
hereof; or if the application has not been approved by the
Examination and Approval Authority, or any of the other conditions
precedent listed in Article 1.2 has not been met within six (6)
months after the application has been submitted, either party has
the right to terminate the Agreement upon written notice to the
other party but that it will take the consent of both parties to
extend either of the above periods;
(2) Wanhui Group may terminate this Agreement should BMP delay the
payment of the Debt to be Paid by BMP for a period of more than
thirty (30) days;
(3) Should either Party breach its representation, warranties and
undertakings herein and fail to cure such breach within thirty (30)
days after the notification by the other Party, the non-breaching
Party shall be entitled to terminate this Agreement; or
(4) Other situations expressly provided herein or agreed by the Parties
5.3 Should the Agreement be terminated pursuant to Article 5.2, Wanhui Group
shall return to BMP any amount BMP has paid within five (5) working days
from the termination date, including the interest calculated at the
prevailing deposit interest rate with the same tenure.
ARTICLE 6 FORCE MAJEURE
Neither party shall be held liable in the event this Agreement is suspended, in
part or in whole, due to force majeure. The party such affected shall notify the
other party in writing within seventy-two (72) hours as of the happening of the
force majeure event, and provide the other party relevant evidencing documents
issued by related government departments within seven (7) days as of the
happening of the force majeure event. Where the force majeure event has lasted
for ninety (90) days, both parties shall negotiate on the performance of this
Agreement, including whether to terminate this Agreement. For the purpose of
this Agreement, any significant adverse change to the business financial and/or
operation of the Company between the date hereof and the Date of Transfer caused
or to be caused by change of law shall be recognized as one type of force
majeure.
ARTICLE 7 BREACH OF CONTRACT
Subject to other provisions of this Agreement, one Party shall be deemed to have
violated this
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Agreement if it fails to fulfill any obligations under this Agreement, or any of
its representations and/or warranties under this Agreement is proved to be
untrue or materially incorrect. The breaching Party shall correct its violation
at its own cost within the period required by the other Party in the breaching
notice, in no event more than thirty (30) days since it receives such notice
from the other Party. Except for the other remedies provided in this Agreement,
should the violation have not been corrected after the period requested in the
breaching notice or thirty (30) days, the non-breaching Party shall have the
right to terminate this Agreement and the Party at default shall compensate the
other Party all economic losses incurred from or suffered due to such violation.
The losses will include but not limited to all costs arising from the execution
of this Agreement and the arbitration cost, legal fee, identification fee,
travelling allowances and communication fee related to requiring the party at
default for performance and claiming for liquidated damages.
ARTICLE 8 DISPUTE RESOLUTION
8.1 Friendly Consultations
In the event of any dispute, controversy or claim (collectively,
"DISPUTE") arising out of or relating to this Agreement, the Parties shall
attempt in the first instance to resolve such Dispute through friendly
consultations.
8.2 Arbitration
(1) If the Dispute is not resolved by friendly consultations within
thirty (30) days after the commencement of such friendly
consultations, then at any time either party may submit the Dispute
to Hong Kong International Arbitration Center (the "HKIAC") in
accordance with the United Nations Commission on International Trade
Law Arbitration Rules (the "UNCITRAL") presently in force, which
rules are deemed to be incorporated by reference into this clause.
(2) The place of arbitration shall be Hong Kong and the arbitration
shall be conducted in English.
(3) The arbitration award shall be final and binding on both Parties,
and both parties agree to be bound thereby and to act accordingly.
(4) The costs of arbitration shall be borne by the Party or Parties as
designated in the arbitration award.
8.3 Continuing Rights and Obligations
When any Dispute occurs and is the subject of friendly consultations,
joint conciliation or arbitration, the Parties shall continue to exercise
their remaining respective rights, and fulfil their remaining respective
obligations, under this Agreement, except in respect of those matters
under Dispute.
- 13 -
ARTICLE 9 GOVERNING LAW
The validity, interpretation and implementation of this Agreement and dispute
resolution shall be governed by the laws of the PRC which are published and
publicly available.
ARTICLE 10 NOTICES
Any notice or written communication in connection with this Agreement by any
Party to the other shall be made in both Chinese and English by courier service
or by facsimile. The date of receipt of a notice or communication hereunder
shall be deemed to be seven (7) working days after the letter is given to the
courier service in the case of a courier service delivered letter and two (2)
working days after successful dispatch in the case of a facsimile. All notices
and communications shall be sent to the address set forth below, until the same
is changed by notice given in writing to the other Party:
WANHUI GROUP:
Xx. 000, Xxxxxxxxx Xx Xx Xxx, Xxxxxxx Xxxxxxxx, Xxxxxxx
Attention:
Facsimile No:
With a copy to
Beijing Pharmaceutical Group Co. Ltd.
No. 30, Hetao Yuan, Guandongdian Bei Jie, Xxxx Xxxx
District, Beijing
Attention:
Facsimile No:
BMP:
Beijing Med-Pharm Corporation
0000 Xxxx Xxxxxx, Xxxxxxxx, XX 00000
Attention: Xxxxx Norse
Facsimile No: 000-000-000-0000
ARTICLE 11 MISCELLANEOUS PROVISIONS
11.1 Neither Party may assign this Agreement without the written consent of the
other Party.
11.2 This Agreement is executed in Chinese and English, each in eight (8)
originals. Both
- 14 -
language versions shall be equally authentic.
11.3 Unless otherwise provided in this Agreement, this Agreement is severable
in that if any provision hereof is determined to be illegal or
unenforceable, the invalid provisions shall be deemed deleted without
affecting the remaining provisions of this Agreement. The Parties shall
attempt to replace the invalid provisions with valid provisions as closely
aligned with the original intent of the Parties as possible.
11.4 This Agreement including the Schedules hereof constitutes the entire
agreement between the Parties with respect to the subject matter hereof,
supersedes any prior expression of intent or understanding relating hereto
and may only be modified or amended by a written instrument signed by the
authorized representatives of the Parties.
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed
by their legal representatives or authorized representatives on the date first
set forth above.
- 15 -
SIGNATURE PAGE
BEIJING WANHUI PHARMACEUTICAL GROUP BEIJING MED-PHARM CORPORATION
By: ILLEGIBLE By: XXXXXXXX XXX
----------------------------- -----------------------------
Name: Name:
Title: Title:
Nationality: Nationality:
- 16 -
CONFIRMATION LETTER OF BEIJING PHARMACEUTICAL GROUP CO., LTD.
As the sole shareholder of Beijing Wanhui Pharmaceutical Group ("WANHUI GROUP")
and the state owned assets administrator as authorized by Beijing State-owned
Asset Administration Commission, with respect to the Share Transfer and Debt
Restructuring Agreement entered into by and between Wanhui Group and Beijing
Med-Pharm Corporation ("BMP") dated December 15, 2004, we confirm as follows:
1. We fully acknowledge the content of the above Share Transfer and Debt
Restructuring Agreement, including its Schedules, and hereby approve the
execution and performance of such Agreement (including its Schedules) by
Wanhui Group;
2. Should Wanhui Group be dissolved or merged, or lose the capacity to
perform the above-mentioned agreement (including its Schedules), we shall
automatically take the place of Wanhui Group and become a party to the
aforementioned agreement (including its Schedules) to perform all its
duties and be responsible for all its obligations therein. Meanwhile, we
shall enjoy all its rights thereunder.
3. This confirmation letter shall become effective upon being signed by our
authorized representative and affixed with our official chop.
BEIJING PHARMACEUTICAL GROUP CO. LTD.
(Seal)
BEIJING PHARMACEUTICAL GROUP CO. LTD.
By:
Date: December 15, 2004
- 17 -
SCHEDULE 1
SUMMARY OF THE ASSET EVALUATION REPORT
YUE PING BAO ZI [2004] NO. 035
This summary highlights selected information contained elsewhere
in the Asset Evaluation Report. If you want to know all the
information related to the evaluated project, you should
carefully read the entire Asset Evaluation Report.
This summary has the same legal effective as the main body of
the Asset Evaluation Report.
As entrusted by Beijing Wanwei Pharmaceutical Co. Ltd (hereinafter referred to
as "ENTRUSTING PARTY"), in accordance with regulations related to asset
evaluation and based on the working principles of independence, objectivity and
science, following recognized methods of assets evaluations, Yuehua Certified
Public Accountants Co. Ltd (hereinafter referred to as the "COMPANY") has
conducted evaluation on the assets and liabilities which are entrusted to be
evaluated for the purpose of shares transfer by adopting cost method. The
appraisers of the Company have gone through necessary evaluation formalities,
including making on site visit to check and verify the assets and liabilities,
and conducting necessary market investigations and inquiry, and have reached
fair findings with respect to the market value of the entrusted assets and
liabilities as dated April 30, 2004, the base date of the evaluation. The assets
evaluation results are as following:
As of the Base Date, the book value of the entrusted assets is RMB 76,782,600
yuan, the liabilities are RMB 106,892,700 yuan, and the net asset is minus RMB
30,110,100.00 yuan; after adjustment, the book value of the asset of the Company
is RMB 76,782,600 yuan, the liabilities are RMB 106,892,700 yuan, and the net
asset is minus RMB 30,104,000.00 yuan; Assuming that the Company shall be
operated as an on-going concern and the net assets shall be transacted at fair
market value, the appraisal value of the assets of the Company as of the Base
Date shall be RMB 85,361,800,000.00 yuan, the liabilities are RMB
106,892,700,000.00 yuan, the net asset is minus RMB 21,530,900.00 yuan.
The appraisal results of all types of assets and liabilities are indicated in
the below Consolidated Sheet of the Assets Evaluations Results:
CONSOLIDATED SHEET OF THE ASSETS EVALUATIONS RESULTS
Base Date: April 30, 2004
The name of unit occupying the assets: Wanwei Pharmaceutical Co. Ltd
- 18 -
(RMB, in ten thousands)
Appraisal Adjusted adjustment
Book net value adjustment Value Balance rate%
-------------- ---------- --------- -------- ----------
Items A B C D=C-B E=D/Bx100
----- -------------- ---------- --------- -------- ----------
Current assets 1 7,229.16 7,229.77 7,982.50 752.73 10.41
Long-term 2 145.00 145.00 272.97 127.97 88.26
investments
Fixed assets 3 185.85 185.85 160.89 -24.96 -13.43
Amid: Buildings 4
Equipments 5 185.85 185.85 160.89 -24.96 -13.43
Projects 6
under constructing
Invisible assets 7 22.13 22.13 23.70 1.57 7.09
Amid: Land use 8
right
Other assets 9 96.12 96.12 96.12
TOTAL ASSETS 10 7,678.26 7,678.87 8,536.18 857.31 11.16
Current debts 11 10,687.27 10,687.27 10,687.27
Long-term debts 12 2.00 2.00 2.00
TOTAL DEBTS 13 10,689.27 10,689.27 10,689.27
NET ASSETS 14 -3,011.01 -3,010.40 -2,153.09 857.31 28.48
Please refer to the evaluation breakdown for the detailed information of the
appraisal conclusions.
This Report is just provided to the Entrusting Party for the purpose indicated
herein. In accordance with the provisions of the state-owned assets
administrations, the Report shall be effective after the filing with the
state-owned assets administrations authority.
The Report shall be valid for a period of one year as of the base date of April
30, 2004.
The following matters herein should raise special attention to the users of this
Report:
1. The adjustment and appraisal to the assets and liabilities in the Report
is made merely for the purpose of reflecting the assets value of entrusted
assets. The Company does not intent to request the Entrusting Party to
conduct relevant accounting treatment pursuant to this Report. The
superior financial and tax competent authority of the Entrusting Party
shall decide whether and how relevant account treatment shall be
conducted.
2. Through the on-site check, the value of 10 of the entrusted assets
increase. This Report is made pursuant to the inventory check, and does
not adjust the income tax thereof.
- 19 -
3. The Report involves inventories located at places outside of Beijing
amounting RMB 7,130,400 yuan. Since the appraisers of the Company did not
make on-site check, the value of such assets is made pursuant to relevant
financial materials provided by the enterprise, the descriptions and
undertakings by the asset users, and by reference to the price standard as
of the Base Date.
4. The assets and liabilities entrusted by the Entrusting Party have been
audited by the Company, and an Audit Report numbered as Xxx Xxxx Sheng Zi
[2004] No. A518 has been issued. The Report is based on such audit of the
Company.
5. The revenue for the principal operating of the Entrusting Party and the
cost thereof interperiodly booked, which may affect the accounts
receivables. Due to many reasons, we could not decide the amount such
affected.
6. As of April 30, 2004, the Wait deal intangible assets loss of the
Entrusting Party is minus RMB 320,641.75 yuan, which is mainly caused by
RMB 4,981,308.65 yuan of uncollectible accounts receivables, and RMB
5,301,950.40 yuan of account payable. The uncollectible accounts
receivable means those amounts that have been confirmed as uncollectible
after review. However, RMB 1,394.58 yuan therein has been collected during
the period from February to April of 2004; the issues of those accounts
payables relate to those beyond statue limitation or those, upon inquiry,
is owed to a party which is controlled by the same investor as the
Entrusted Party, to whom the Entrusted Party also owes accounts payables.
Due to the uncertainty of the above situations, we maintain the figures of
such assets as they were. It shall be adjusted after the enterprise
provides evidences. The amount of the net assets such affected is RMB
10,283,259.05 yuan.
7. Other receivables related to Li Wenming is RMB 5,594,271.00 yuan. We could
not reach reasonable conclusion with respect to the collectivibilty of
such amount based on the materials provided by the Entrusted Party. Hence,
we maintain the figure as it is. This event was submitted to the
Prosecutors' Office of Beijing Xicheng district in 2002, and then
transferred to the Beijing First Prosecutors' Office. As of the report
date of the Report, Beijing First Prosecutors' Office has filed lawsuit to
Beijing Intermediate People's Court. Since this case is still pending, the
result shall be adjusted in light of the court judgment. The amount of the
net assets such affected is RMB 5,594,271.00 yuan.
Legal Representative:
Registered Asset Appraiser:
Registered Asset Appraiser:
Beijing Yuehua Certified Public Accountants Co. Ltd.
- 20 -
Beijing China
June 16, 2004
- 21 -
SCHEDULE 2
CONSENT LETTER ON WAIVING OF FIRST REFUSAL RIGHT
To: BEIJING MED-PHARM CORPORATION
To whom it may concern:
RE: THE TRANSFER OF 80% SHARES OF BEIJING WANWEI PHARMACEUTICAL CO., LTD.
1. I, owning 20% shares of the Beijing Wanwei Pharmaceutical Co., Ltd.
(hereinafter the "COMPANY"), hereby unconditionally:
2. consent Beijing Med-Pharm Corporation ("BMP")'s acquisition of the 80%
equity interest (hereinafter the "TRANSFERRED SHARES") in the Company held
by Wanhui Pharmaceutical Group ("WANHUI GROUP") in accordance with the
Share Transfer and Debt Restructuring Agreement (hereinafter the "SHARE
TRANSFER AGREEMENT") entered into between BMP and Wanhui Group. This
Letter of Consent shall become one appendix to the Share Transfer
Agreement;
3. expressly declare to waive the right of first refusal to the Transferred
Shares;
4. undertakes to provide all assistances necessary to complete the
transaction under the Share Transfer Agreement.
This Letter of Consent shall come into effect upon signing.
This Letter of Consent shall be executed in both Chinese and English. Both
versions shall be equally authentic.
By: Wen Xin
Date: December 15, 2004
- 22 -
SCHEDULE 3A
LIST OF DEBT OWING TO WANHUI GROUP BY THE COMPANY AS OF THE BASE DATE
1. The principal of loan owed to Wanhui Group by the Company, totaling RMB
40,300,000.00 yuan;
2. The interests of the loan owed to Wanhui Group by the Company, totaling
RMB 3,760,000.00 yuan;
3. RMB 6,000,000.00 yuan paid to Tianjin Taipin (Group) Co., Ltd. by Wanhui
Group on behalf of the Company;
4. RMB100,000.00 yuan payable to Wanhui Group with respect to cost for
discipline inspection.
In total: RMB50,160,000.00 yuan
BEIJING WANHUI PHARMACEUTICAL GROUP BEIJING WANWEI PHARMACEUTICAL CO. LTD.
Authorized Representative: Authorized Representative:
Date: December 15, 2004 Date: December 15, 2004
- 23 -
SCHEDULE 3B
LIST OF DEBT OWING TO THE COMPANY BY WANHUI GROUP AS OF THE BASE DATE
1. RMB12,660,000.00 yuan receivable from Beijing Ruizhan Pharmaceutical
Material;
2. RMB 150,000.00 yuan receivable from Wanhui Drug Store;
3. RMB 10,000.00 yuan receivable from Wanhui Group.
In total: RMB 12,820,000.00 yuan
BEIJING WANHUI PHARMACEUTICAL GROUP BEIJING WANWEI PHARMACEUTICAL CO. LTD.
Authorized Representative: Authorized Representative:
Date: December 15, 2004 Date: December 15, 2004
- 24 -
SCHEDULE 3C
LIST OF DEBT OWING TO WANHUI GROUP OR ITS AFFILIATES BY THE COMPANY FROM THE
BASE DATE TILL THE SIGNING DATE
RMB 7,000,000.00 yuan loan advanced by Wanhui Group to the Company on July 9,
2004
BEIJING WANHUI PHARMACEUTICAL GROUP BEIJING WANWEI PHARMACEUTICAL CO. LTD.
Authorized Representative: Authorized Representative:
Date: December 15, 2004 Date: December 15, 2004
- 25 -
SCHEDULE 3D
ACKNOWLEDGEMENT OF THE DEBT RESTRUCTURING BY WANHUI GROUP AND THE COMPANY
In connection with the Share Transfer and Debt Restructuring Agreement between
Beijing Wanhui Pharmaceutical Group ("WANHUI GROUP") and Beijing Med-Pharm
Corporation dated December 15, 2004 (the "SIGNING DATE"), Wanhui Group and
Beijing Wanwei Pharmaceutical Co. Ltd. ("THE COMPANY") hereby confirm:
1. As of the base date set forth in the Asset Evaluation Report issued by
Yuehua Certified Accounting Firm (the "BASE DATE"), except the amount
incurred during the normal business transactions between both parties, the
total amount owing to Wanhui Group by the Company (including the principal
and interests thereon) is RMB 50,160,000 yuan. Both parties have confirmed
the breakdown thereof as set forth in Schedule 3(A) of the Share Transfer
and Debt Restructuring Agreement. Wanhui Group confirms that such amount
has contained all amounts owing to it by the Company as of the Base Date,
excluding those incurred as a result of the normal business transactions
with the Company;
2. As of the Base Date, except the amount incurred during the normal business
transactions between both parties, the total amount owing to the Company
by Wanhui Group is RMB12,820,000.00 yuan. There is no interest accrued on
such amount. Both parties have confirmed the breakdown thereof as set
forth in Schedule 3(B) of the Share Transfer and Debt Restructuring
Agreement. The Company confirms that such amount has contained all amounts
owing to it by Wanhui Group as of the Base Date, excluding those incurred
as a result of the normal business transactions with Wanhui Group;
3. From the Base Date to the Signing Date, the principal amount of loan newly
advanced by Wanhui Group to the Company is RMB7,000,000.00 yuan. Wanhui
Group confirms that such amount contained all principal amount owing to it
or any of its Affiliates by the Company from the Base Date to the Signing
Date, excluding those incurred as a result of the normal business
transaction;
4. Both parties confirm that the amount owing by the Company to Wanhui
provided in above 1 and the amount owing by Wanhui Group to the Company
provided in above 2 shall be set off on the Signing Date as contemplated
in the Share Transfer and Debt Restructuring Agreement.
5. The Company acknowledges the restructuring arrangements with respect to
the net amount of debt owing to Wanhui Group as contemplated in the Share
Transfer and Debt Restructuring Agreement, and will take all actions
necessary for implementation of such restructuring arrangements.
6. This acknowledgement shall become effective upon being signed by the
authorized representative of the Parties and affixed with their official
chops.
- 26 -
BEIJING WANHUI PHARMACEUTICAL GROUP BEIJING WANWEI PHARMACEUTICAL CO. LTD.
Authorized Representative: Authorized Representative:
Date: December 15, 2004 Date: December 15, 2004
- 27 -
SCHEDULE 4
ENTRUSTED LOAN CONTRACT
Party A: Beijing Med-pharm Market Calculating Co. Ltd. (principal)
Domicile: 2002, Capital Mansion, Xx. 0 Xxxxx Xxxxxxx Xxxx, Xxxxxxxx
Xxxxxxxx, Xxxxxxx Xxxxx
Post Code: 10004
Telephone: 00000000
Fax: 00000000
Legal Representative:
Account Bank and Account Number:
Party B: China International Trust and Investment Industrial Bank (entrusted
party)
Domicile:
Post Code:
Telephone:
Fax:
Legal representative/Person in Charge:
Account Bank and Account Number:
Party C: Beijing Wanwei Pharmaceutical Co. Ltd. (the party using the loan)
Domicile: No. 25, A Xxxx Xxx Xxx Xxx Xx, Xxxxxxxx Xxxxxxxx, Xxxxxxx, Xxxxx
Post Code: 100062
Telephone:
Fax:
Legal representative/Person in charge: Xxx Xxxx
Account Bank and Account Number:
Signature place of the contract: Beijing
Signature date of the contract: December 15, 2004
- 28 -
In order to utilize its own fund more efficiently, Party A entrusted Party B to
advance a loan to Party C. In accordance with the Contract Law and other
relevant laws and regulations, after the equal consultation, Party A, Party B
and Party C mutually agreed on the following terms:
ARTICLE 1 KIND OF CURRENCY, AMOUNT AND TERM OF THE ENTRUSTED LOAN
Party A entrusts its own fund to Party B to advance a loan to Party C, and shall
recover the principal and obtain the interest within the agreed period. The
currency of the loan under this Contract is RMB; the amount of the loan is seven
million (in words); the term of the loan is nine months starting from _____,
2004 to _______ 2005.
ARTICLE 2 COMMISSION FEES
1. The rate of commission fees determined by Party B as per the actual amount
and term of the loan provided shall be 2%.
2. Method of collecting the commission fees
Within three days after the effectiveness of this Contract, such fees
shall be paid by Party C to Party B in a lump sum or be directly deducted
from the account of Party C in lump sum.
3. Collection of such commission fees shall not be affected by whether the
entrusted loan has been repaid or is early repaid.
ARTICLE 3 USAGE OF THE LOAN
1. Party C will use the principal under this Contract for the repayment of
the indebtedness due and payable to Beijing Wanhui Pharmaceutical Group
("WANHUI GROUP"), but Party B shall not take any responsibility for
utilization of such loan by Party C.
2. Without the written consent by Party A, Party C shall not change the usage
of the loan.
ARTICLE 4 ACCOUNT OF PARTY A
1. Party A shall open a savings account of the entrusted loan with Party B
within two days after the signing of this Contract.
2. Party A shall deposit the full amount of the entrusted loan in the amount
of RMB seven million yuan into the savings account of the entrusted loan
in a lump sum within three days after the signing of this Contract.
3. Under no circumstances shall the amount of each drawdown by Party C exceed
the balance amount in the account of Party A.
ARTICLE 5 ACCOUNT OF PARTY C
1. After effectiveness of this Contract but before using the loan, Party C
shall open the loan account, the RMB settlement account with Party B or
its branches, in order to handle the formalities for drawdown, repayment
of the principal, payment of interests and payment of fees, etc.
2. Party C shall deposit sufficient sum into the account for the payment by
no less than 5 days before each due date of principle and interest.
- 29 -
3. Party B or its branches shall be given the first priority to deal with the
settlement for transactions between Party C and Wanhui Group or its
affiliates on the same conditions.
ARTICLE 6 INTEREST RATE OF THE ENTRUSTED LOAN AND METHOD OF INTEREST CALCULATION
1. The interest rate of the entrusted loan is 5.2 %. If Party A and Party C
adjust the interest rate or change the method of interest calculation
during the term of performing the Contract, Party A shall inform Party B
in writing, and Party B shall calculate the interest in accordance with
the adjusted interest rate from the second business day after receipt of
the notice. The agreed interest rate shall not violate the provisions of
the People's Bank of China.
2. The method of interest calculation: The interest is computed on the basis
of the actual amount of drawdown and number of days elapsed from the first
date of drawdown by Party C. The calculation is based on there are 360
days per year.
3. Payment of interests: Party C shall make payment for interest on quarterly
basis, the interest payment dates being March 21, June 21, September 21
and December 21 each year. Except otherwise provided herein, if the last
repayment date of the loan principal does not fall on an interest payment
date, Party C shall pay off all the interest payable on the last repayment
date of loan principal. Party B must make payment for interest on each
interest payment date, or Party B may directly deduct the sum from the
savings account of Party C. If Party C fails to pay interest in full on
time and the balance amount of the savings account of Party C is not
sufficient for payment of the interest due, Party B has the right to
charge liquidated damages on the unpaid amount of interest falling due at
the rate of 0.1 % per day on behalf of Party A.
ARTICLE 7 INTEREST OVERDUE
If Party C fails to make repayment in accordance with the repayment schedule or
reach any agreement on extension of the loan, it shall constitute overdue loan.
Party B shall have right to charge the overdue interest on the amount of the
loan overdue in accordance with the interest rates stipulated by the People's
Bank of China on behalf of Party A. If the People's Bank of China changes the
interest rates, such changed rates shall apply.
ARTICLE 8 CONDITIONS PRECEDENT TO DRAWDOWN
Party C can make drawdown only after the following conditions are satisfied in
full:
1. Party C has opened loan account and relevant settlement account with Party
B or its branches.
2. This Contract has become duly effective.
3. Party C has submitted Party B the name list and specimen signatures of the
personnel(s) who has the right to execute this Contract and the documents
and instruments hereunder for and on behalf of itself.
4. Party B have received the "application for drawing the entrust loan"
submitted by Party C.
5. The conditions to drawdown agreed by the parties hereto.
ARTICLE 9 DRAWDOWN PLAN
After effectiveness of this Contract, Party C must apply for using the loan
under this Contract within five working days in lump sum. If Party C needs to
make an early drawdown, it must
- 30 -
obtain the consent from Party A and Party B.
ARTICLE 10 REPAYMENT AND EARLY REPAYMENT
1. Party C must repay the principal of the loan under this Contract within
five working days upon the expiration of this Contract.
2. Should the Share Transfer and Debt Restructuring Agreement between Beijing
Med-pharm Corporation and Wanhui Group executed on the same day as this
Contract (the "SHARE TRANSFER AND DEBT RESTRUCTURING AGREEMENT") be
approved by the examination and approval authority prior to the expiration
of this Contract, Party C shall arrange the repayment of the loan
hereunder promptly upon the receipt of advance payment notice from Party B
providing Beijing Med-pharm Corporation has become the shareholder of
Party C and has input the amount of capital increase to Party C.
3. Should the Share Transfer and Debt Restructuring Agreement be terminated
for reasons not attributable to Beijing Med-pharm Corporation, the
principal and interests hereunder shall become due immediately. Party C
shall repay all the principal, interests and fees within two working days
upon the receipt of advance payment notice from Party B.
4. Should the Share Transfer and Debt Restructuring Agreement be terminated
for reasons attributable to Beijing Med-pharm Corporation, the Contract
shall be terminated. Party C shall repay the principal hereunder within
two working days upon the receipt of advance payment notice from Party B.
ARTICLE 11 CERTIFICATE OF INDEBTEDNESS
Party B shall record all the principal, interest, expenses and any other sums
owed by Party C under this Contract in the internal account book of Party B.
This record and the instruments and receipts normally occurred and maintained by
Party B in the course of its handling the drawdown, repayment of principal and
payment of interest by Party C shall be the valid evidence of the credit right
and debt between Party A and Party C.
ARTICLE 12 SECURITY
The security of the principal and interest (including default interest and
relevant expenses) shall be provided separately in the Share Transfer and Debt
Restructuring Agreement.
ARTICLE 13 REPRESENTATIONS AND WARRANTIES OF PARTY A
1. Party A hereby represents as follows:
(1) The loan supplied by Party A belongs to its own lawful funds which
it may freely disburse.
(2) Party A shall have the right to undertake the activities under this
Contract in the light of the laws, policies and its own rules and
systems.
(3) Party A executes and performs this Contract voluntarily, which
represent its true intention and have obtained all necessary lawful
authorizations, and the formalities necessary for execution and
performance of this Contract by Party A have been completed.
(4) The borrower of the entrusted loan under this Contract is designated
by Party A; the usage, interest rate and term of the loan are all
confirmed by Party A.
- 31 -
(5) The risks of loan losses under this Contract shall be borne by Party
A. Party B shall not bear any risks of loan losses.
2. Party A hereby warrants as follows:
(1) It will deposit its own funds into savings account of the entrusted
loan in accordance with Article 4 of this Contract, and guarantee
that balance of the account shall be no less than the fund that
Party C will draw upon under this Contract.
ARTICLE 14 REPRESENTATIONS AND WARRANTIES OF PARTY B
1. Party B hereby represents as follows:
(1) Party B is eligible to execute this Contract and the relevant
documents, and has the right to perform the rights and obligations
under this Contract.
(2) Execution of this Contract by Party B shall not be deemed as
providing security for Party C by Party B.
2. Party B hereby warrants as follows:
(1) It will assist Party A in examining Party C's credit and handling
relevant lending formalities.
(2) It will advance the loan as per the provisions of this Contract and
assist Party A to recover the principal and interest of the loan.
(3) It undertakes that it will not increase interest at will or do so in
a disguised form.
ARTICLE 15 REPRESENTATIONS AND WARRANTIES OF PARTY C
1. Party C hereby represents as follows:
(1) Party C has the civil legal capacity and capacity for civil acts
required for execution and performance of this Contract, and can
independently assume the civil responsibilities.
(2) Party B executes and performs this Contract voluntarily, which
represent its true intention and have obtained all necessary lawful
authorizations. The above-mentioned authorization and execution and
performance under such authorization does not breach the Articles of
Association of Party C or any laws and regulations or contract
binding on Party C. And the formalities necessary for execution and
performance of this Contract by Party C have been legally and
validly completed.
(3) All documents, information, statements and vouchers provided by
Party C to Party A and Party B for obtaining the loan under this
Contract are precise, true, complete and valid.
(4) Party C does not hide any event occurred or threatening to occur
which may make Party A disagree to provide the loan under this
Contract.
2. Party C hereby warrants as follows:
- 32 -
(1) It will use the loan in accordance with the purpose provided in this
Contract, and will not occupy the loan by way of misappropriation or
inappropriate disbursement.
(2) It will repay the principal and pay the interest as well as relevant
expenses in accordance with the repayment schedule under this
Contract.
(3) It will provide credit certification and/or the most updated
financial statements as requested by Party B.
(4) No matter that Party C has entered into or will enter into any
counter security agreement or like agreement with the security
provider regarding the latter's obligations of providing security,
such agreement shall prejudice any right and interest of Party A
under this Contract in law or in fact.
(5) It shall accept the credit inspection and supervision by Party B,
and provide sufficient assistance and cooperation.
(6) It will not reduce its registered capital by any means; will not
conduct any material change in ownership or any adjustment of its
method of business operation without the written consent from Party
A.
(7) It will inform Party A and Party B in a timely manner if it provides
any credit guarantee or creates any mortgage or pledge over its own
assets for a third party.
(8) The order of priority of the debt repayment by Party C under this
Contract shall not be lower than that of the debts of same kind
owing other creditors.
(9) Party C undertakes to inform Party A and Party C within 3 days after
the following events occur:
an event of default occurs under this Contract and any loan
contract or security contract it entered into with any
department or branch of the CITIC Industrial Bank, other banks
or non-banking financial institutions or entities;
any change in the subordination relationship of Party C or
its senior management, amendment to its Articles of
Association, or any adjustment of its organizational
structure;
Party C encounters severe difficulty(ies) in its business
operation or its financial situation deteriorates;
material dispute on credit right and debt incurred by Party C
leading to law suit or arbitration, etc.
3. The representations and warranties made by Party C in this Article shall
be continuously valid and shall be deemed as being repeated by Party C
when this Contract is amended, supplemented or modified.
4. Party C acknowledges that the execution of this Contract by Party A and
Party B is based on the confidence in the above-mentioned representations
and warranties.
ARTICLE 16 EVENT OF BREACH AND LIABILITY OF BREACH
1. Any of the following events constitutes a default by Party C under this
Contract:
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(1) Party C fails to use the loan in accordance with the usages provided
in this Contract;
(2) Party C fails to pay the commission fee to Party B on time in
accordance with this Contract;
(3) Party C fails to repay the amount of principal or pay the amount of
interest falling due or other sums payable in accordance with this
Contract;
(4) Party C violates any warranty made in Article 15 or any of its
representations is untrue.
(5) Party C violates any other provisions in respect of its obligation
under this Contract.
2. In case of occurrence of the above-mentioned events of default, Party C
shall notify Party A and Party B in time, and Party B may, upon obtaining
consent from Party A, take the following actions individually or
simultaneously:
(1) to demand Party C to correct its acts of default within limited
period of time;
(2) to deduct the unpaid commission fee owned by Party C to Party B;
(3) to declare immediate maturity of the principal and the interest
under this Contract in whole, and demand Party C to immediately pay
off the principal and interest of the loan and the expenses owed;
3. Party B's events of default and consequence thereof
(1) Party B rejects Party C's drawdown in accordance with the provision
of this Contract without due reason;
(2) violation of any provision agreed in Article 14 of this Contract.
4. In the event of the above-mentioned events of default on the side of Party
B, Party A or Party C has the right to take the following actions
individually or simultaneously:
(1) to demand Party B to correct its act of default;
(2) Party C has the right of early repayment.
5. Occurrence of the following events shall constitute default by Party A
under this Contract:
(1) failure to deposit or remit the sufficient amount of fund to the
savings account of the entrusted loan opened with Party B in
accordance with the provisions of this Contract;
(2) the source of the entrusted loan is illegal or not regulatory.
6. In case of occurrence of the above-mentioned events of default, Party B or
Party C has the right to take one or more actions as follows:
(1) Party B or Party C has the right to demand Party A to correct the
circumstances mentioned above within limited period of time;
(2) Party C has the right to refuse to handle the entrusted loan
business for Party A;
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(3) Party C has the right of early repayment;
(4) in case of any losses caused to Party B and Party C, it has the
right to demand compensation from Party A.
ARTICLE 17 TAXATION
Party B shall withhold Party A's business tax and surcharge in accordance with
law. In case of any adjustment of business tax and surcharge during the term of
this Contract, Party B shall withhold the business tax and surcharge pursuant to
the adjusted tax rate.
ARTICLE 18 EXPENSES
All the expenses (including but not limited to notary expense) in connection
with this Contract shall be borne by Party C, unless otherwise stipulated by law
or agreed in this Contract.
ARTICLE 19 ASSIGNMENT OF DEBT
1. Party C shall not assign any rights or obligations under this Contract to
any third person without prior consent in writing by Party A.
2. Party C may, upon the prior consent in writing by Party A, assign the
rights and obligations under this Contract to a third person, and the
third person shall unconditionally observe all terms under this Contract.
ARTICLE 20 PERFORMANCE OF THE OBLIGATIONS AND WAIVER OF RIGHTS
1. Unless otherwise stipulated in this Contract, obligations of Party C under
this Contract are independent and shall not be affected by the
relationship between any party hereto and a third person.
2. Any tolerance, grace period or favor granted to Party C by Party A or
deferred exercising of any rights under this Contract by Party A shall not
affect, prejudice or limit all rights and interests enjoyed by Party A in
accordance with this Contract, the laws and regulations, and shall not be
deemed as any waiver of the rights and interests of Party A and Party B
under this Contract.
ARTICLE 21 DISPUTE, JURISDICTION AND IMMUNITY
1. The PRC law shall be applicable to the execution, validity, interpretation
and performance of this Contract and settlement of disputes. During the
term of this Contract, any dispute or controversy arising out of or in
connection with the performance of this Contract may be solved by
consultation between the parties thereto. In case of failure to be solved
by consultation, the three parties agree to accept the jurisdiction of the
people's court in the locality of Party B.
2. All the provisions of this Contract shall be remain valid during the
course of litigation. Party C shall not refuse to perform its obligations
under this Contract by using settlement of the dispute as its excuse.
3. The execution and performance of this Contract by Party C and any
activities related to this Contract carried out by it shall be civil acts.
Party C is not and will not be entitled to take any economic or
administrative measures against Party B or raise objection to or challenge
any jurisdiction, trial and enforcement by reason that its organizations,
conducts or assets enjoy any immunity rights.
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ARTICLE 22 NOTICES
1. Any notices, request for payment and all kinds of communications under
this Contract shall be delivered to the counterparty in accordance with
the addresses and fax numbers under this Contract.
2. In case of any change to the address of any party, it shall promptly
notify the other two parties.
3. Any notice, request or other correspondence given to Party A and Party C
by Party B, including but not limited to those by way of telex, telegraph,
facsimile or other means, shall be deemed as delivered once it has been
dispatched; the mail shall be deemed as delivered on the third day from
the date when the relevant letter has been registered and posted; where
the correspondence is sent in person, it shall be deemed as having been
delivered when the recipient signs the return receipt.
ARTICLE 23 CONDITIONS TO THE EFFECTIVENESS OF THE CONTRACT
This Contract shall come into force once the following conditions are satisfied
at the same time and the term of validity shall run until the repayment of
principal and payment of the interest of loan and other related expense
hereunder in full:
1. this Contract has been signed by the legal representatives or authorized
representatives of the three parties hereto and chopped with the official
chops thereof;
2. the security contract has become effective, if applicable.
ARTICLE 24 MISCELLANEOUS
1. This Contract may be amended and supplemented as agreed to by the three
parties in writing; any amendment and supplement hereto shall constitute
integral part of the Contract and shall have the equal legal effect with
this Contract.
2. In case any provisions of the Contract become illegal, invalid or
unenforceable due to any change in laws, regulations or judicial practice,
and the legality, validity or enforceability of the remaining provisions
of this Contract shall not be affected. Where the above occurs, the three
parties shall cooperate closely to amend the relevant provisions of the
Contract that have become illegal, invalid or unenforceable as soon as
possible.
3. This Contract shall be five originals, each party holding one original,
Wanhui Group and Beijing Med-pharm Corporation each holding one. All the
originals shall have equal binding force.
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PARTY A (official chop) By Legal Representative
(or Authorized Representative):
PARTY B (official chop) By Legal Representative
as the entrusted party (or Authorized Representative):
PARTY C (official chop) By Legal Representative
(or Authorized Representative):
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SCHEDULE 5
PRINCIPAL AND ACCRUED INTERESTS OWED TO
THIRD PARTY OTHER THAN WANHUI GROUP AND ITS AFFILIATES
The aggregate amount and accrued interest owing by the Company to any third
party other than Wanhui Group and its Affiliates is RMB 4.020,000.00 yuan as of
the Base Date, and RMB 4,097,250.00 yuan as of September 30, 2004.
- 38 -
SCHEDULE 6
LIST OF DOCUMENTS PROVIDED BY WANHUI GROUP
1. INFORMATION OF THE COMPANY
1.1 Documents evidencing the establishment of Beijing Wanwei Pharmaceutical
Co. Ltd. (the "COMPANY")
1.1.1 Promoter agreement entered by and between the Material
Supplying Company of Beijing Pharmaceutical General
Corporation (in Chinese, (Chinese Characters)) ("MSC") and
Beijing Weierkang Pharmaceutical Information Consultation Co.
Ltd. (in Chinese, (Chinese Characters)) ("WRK") as of November
25, 1998;
1.1.2 Shareholders' name list of the Company;
1.1.3 The name list of the Company's board members, manager, and
supervisors;
1.1.4 The approval issued by Beijing Municipal Pharmaceutical
Administrative Bureau ("BJPAB") to Beijing Wanhui
Pharmaceutical Group ("WANHUI GROUP")[(98) Jing Yiyaoju Xxxxx
Xxxx Zi No. 318] on December 1, 1998, on the incorporation of
the Company by MSC and WRK;
1.1.5 The confirmation letter issued by Beijing Municipal
State-owned Assets Administrative Bureau ("BJSOAAB") (Jing
Guozigu [1998] No. 631) on December 31,1998, regarding the
appraisal result on the assets to be contributed into the
Company by MSC;
1.1.6 The reply issued by Beijing Health Bureau ("BJHB")(Xxxx Xxx
Yao Zi [1999] No. 9) on January 11, 1999, regarding its
approval with respect to the change of the name by MSC from
the Material Supplying Company of Beijing Pharmaceutical
General Corporation into Beijing Wanwei Pharmaceutical Co.
Ltd.
1.1.7 The capital verification report issued by Fangyuan Certified
Public Accountants dated January 5,1999 with respect to the
contribution of both shareholders of the Company, i.e. MSC and
WRK;
1.2 Documents evidencing the change of the share structure and existing of the
Company
1.2.1 Share transfer agreement entered by and between MSC and Wanhui
Group as of August 15, 2000 with respect to the transfer by
MSA of all its equity interest in the Company to Wanhui Group;
1.2.2 Shareholders' meeting resolution dated August 15, 2000, with
respect to the share transfer from MSC to Wanhui Group as
provided in 1.2.1 above;
1.2.3 Registration documents filed with the registry authority with
respect to the above
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shareholder change dated August 21, 2000;
1.2.4 The amended Articles of Association of the Company evidencing
the change of shareholders;
1.2.5 Amended Shareholders' name list of the Company;
1.2.6 The registration document filed with the registry authority
with respect to the newly-elected board member, Xx. Xxxx
Yuexing, including that of the Shareholders' Meeting, and
newly-engaged manager, Xx. Xxx Yong;
1.2.7 The name list of the Company's board members, manager, and
supervisors as amended;
1.2.8 The amended Articles of Association of the Company filed with
the registry authority evidencing the increase of director,
with the number of directors being six;
1.2.9 The registration document filed with the registry authority
with respect to the newly-elected board member, Xx. Xxx Xxxx;
1.2.10 The amended Articles of Association of the Company filed with
the registry authority evidencing the increase of director,
with the number of directors being seven;
1.2.11 Brief information of the directors of the Company which are
registered with registry authority as of February 9, 2003;
1.2.12 The business license (Registration No. 1101031514657(2-1)) of
the Company evidencing that the Company has passed the annual
inspection of the year of 2003; and
1.2.13 Documents with respect to the share transfer from Beijing
Weierkang Pharmaceutical Information Consultation Co. Ltd. to
Wenxin.
1.3 Governmental approval certification relating to the Company;
1.3.1 State-tax registration certificate (Xxxx Xxx Shui Zi No.
110103700215459) issued on August 25, 1999;
1.3.2 Local-tax registration certificate (Jing Di Shui Zi No.
110103700215459000) issued on August 14, 2002;
1.3.3 The Medicine Distribution Permit of the Company issued by
Beijing Drug Administration Bureau ("BJDA") on October 8, 2002
(Jing 100021);
1.3.4 The Medical Appliances Distribution Permit of the Company
issued by BJDA on December 20, 2002;
1.3.5 The GSP Certificate of the Company issued by State Food & Drug
Administration Bureau ("SFDA") (No. A-BJ02-010) on April 3,
2003
2. FINANCING ARRANGEMENT
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2.1 Facility advanced by Wanhui Group
2.1.1 Facility agreement between the Company and Wanhui Group on the
advancing of RMB 800,000.00 yuan working capital dated March
8, 2000;
2.1.2 Facility agreement between the Company and Wanhui Group on the
advancing of RMB 9,000,000.00 yuan working capital dated March
9, 2000;
2.1.3 Facility agreement between the Company and Wanhui Group on the
advancing of an 11-month facility of RMB 30,000,000.00 yuan
dated May 14, 2000;
2.1.4 Facility agreement between the Company and Wanhui Group on the
advancing of a three-month facility of RMB 8,500,000.00 yuan
dated August 14, 2000.
2.1.5 Facility agreement between the Company and Wanhui Group on the
advancing of RMB 7,000,000.00 yuan dated July 9, 2004.
2.1.6 List of all credit and debts between the Company and Wanhui
Group or its affiliates (up to April 30, 2004).
2.2 Fund-raising from Employees.
2.2.1 Four copies of receipts regarding fund raising from employees.
2.2.2 Copies of confirmation letter given by relevant employees
regarding the principal, amount outstanding and the interest
up to September 30, 2004.
2.3 Other credits and debts
List of all other credits and debts between the Company and other third
party, in addition to above 2.1. and 2,2.
3. MATERIAL AGREEMENTS
3.1 Real Estate Lease Agreement
3.1.1 Agreement between Wanhui Group and the Company with respect to
the joint-use of the office building and warehouse owned by
Wanhui Group. The title certificates of relevant land and
buildings.
3.1.2 the Warehouse sub-lease Agreement between the Company and
Shiyao Group Zhongnuo Pharmaceutical (shijiazhuang) Co. Ltd.
3.2 Agreement with important customers
3.2.1 Master purchase agreement between the Company and Shandong
Zhengda Furuida Pharmaceutical Co, Ltd. for the year of 2004;
3.2.2 The purchase and sale agreement between the Company and
Beijing Wanhui
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Shuanghe Pharmaceutical Co. Ltd from March 1, 2004 to February
28, 2005;
3.2.3 The purchase and sale agreement between the Company and
Beijign Shuanghe Pharmaceutical Co. Ltd. for the year of 2004;
3.2.4 The exclusive agent agreement between the Company and Beida
Pharmaceutical Co. Ltd. for certain products in the area of
Beijing for the year of 2004;
3.2.5 The purchase and sale agreement between Guangzhou
Pharmaceutical Co. Ltd. and the Company related to the
distribution by the Company of the drugs distributed by
Guangzhou Pharm for the year of 2004;
3.2.6 The commercial agent agreement between Beijing Shuangji
Pharmaceutial Co. Ltd. ("SHUANGJI PHARM") and the Company with
respect to the exclusive distribution by the Company of
certain drugs of Shaugnji Pharm in the area of Beijing in the
year of 2004;
3.2.7 The distribution agreement between the Company and Chengdu
Dekun Pharmaceutical Co. Ltd. for the year of 2004;
3.2.8 The exclusive distribution agreement between the Company and
Guizhou Weimen Pharmaceutical Co. Ltd. for the year of 2004;
3.2.9 The exclusive distribution agreement between the Company and
Shandong Xxxxxx Kangnuo Pharmaceutial Co. Ltd. for certain
product in the area of Beijing for the year of 2004;
3.2.10 The sales agreement between the Company and Sichuan Tianqi
Pharmaceutical Co. Ltd. for the year of 2004;
3.2.11 The Purchase and Sale Agreement entered by and between the
Company and Beiing Fengkecheng Pharmaceutical Co. Ltd. for the
year of 2004;
3.2.12 The Purchase and Sales Agreement entered by and between the
Company and Beijing Kaixing Pharmaceutical and Technology
Development Center for the year of 2004;
3.2.13 The Agency Agreement entered by and between the Company and
Shenzhen Ruilin Pharmaceutical Co. Ltd. for the year of 2004.
3.3 Service agreements of the Company
Software service agreement between the Company and Beijing Chuangtianyuan
Computer Co. Ltd in 2004 to provide software service, hardware service and
additional service with
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the term from May 1st 2004 to April 30th 2005 at the service fee of 8,000
RMB.
4. FINANCIAL INFORMATION
4.1 the balance sheet, cash-flow statement and profit and profit distribution
statement of the fiscal year of 2002 of the Company;
4.2 the balance sheet, cash-flow statement and profit and profit distribution
statement of the fiscal year of 2003 of the Company;
4.3 the cash-flow statement and profit and profit distribution statement of
the fiscal quarter of 2004 of the Company;
4.4 audit report for the years of 2001, 2002 and 2003;
4.5 the balance sheet of the Company on the day of the execution date [TO BE
PROVIDED].
5. HUMAN RESOURCES
5.1 General description of the human resources of the Company, including the
total number of employees and number of categories (divisions and
functions), education background and ages of the employees, and employee
benefit;
5.2 Instruction on various positions, including that of salesman, senior sales
representative, junior sales representative, middle-ranking clerk,
purchasing representative;
5.3 Resumes of key employees;
5.4 Documents related to the dismissal of 47 employees by the Company;
5.5 The commercial insurance agreement with one PRC insurer on the complex
insurance to employees;
5.6 Samples of current employment contracts and labor service agreement and
summary of all such documents.
6. DOCUMENTS RELATED TO THE SUBSIDIARIES OF THE COMPANY
6.1 Business Licenses of the three subsidiaries;
6.2 Articles of Association of the three subsidiaries;
6.3 The latest financial reports of the three subsidiaries.
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SCHEDULE 7
OFFICE LEASE AGREEMENT (FORM)
LESSOR: BEIJING WANHUI PHARMACEUTICAL GROUP (hereinafter referred to as the
"PARTY A")
Registered Address: 30 Hetao Yuan, Guandongdian Bei Jie,
Chaoyang District, Beijing
Legal Representative: Wang Xxxx Xx
Title: General Manager
Telephone Number: [ ]
Postcode: [ ]
LESSEE: BEIJING WANWEI PHARMACEUTICAL CO. LTD (hereinafter referred to as the
"PARTY B")
Legal Representative; 25 A, Beilizhongqu, Dong Huashi,
Chongweng District, Beijing
Legal Representative: [ ]
Title: [ ]
Telephone Number: [ ]
Postcode: [ ]
WHEREAS:
(1) Party A owns the title to the office referred herein. Such office is being
occupied and used by Party B pursuant to an agreement ("PREVIOUS
AGREEMENT") entered by and between Party A and Party B dated October
20th 1999;
(2) For the purpose to further regulate the relationship between Party A and
Party B, both Parties desire to replace the Previous Agreement with
this Agreement.
Upon the amicable negotiation between Party A and Party B, the following
provisions have been agreed to regarding the lease of the office, located at 25
A Building, Beilizhongqu, Dong Huashi, Chongweng District, Beijing, own by Party
A (hereinafter referred to as the "OFFICE") to Party B:
ARTICLE 1. Party A shall lease Party B the properties located at 25 A
Building, Beilizhongqu, Dong Huashi, Chongweng District, Beijing
for the purpose of conducting its business. The occupied area of
the Office is 399 square meters and the floor area is 1,037
square meters (among which 778 square meters over ground and 259
square meters under ground).
1.1 The drawing and detailed map of the Office shall be attached hereto and
constitute integral part to this Agreement.
1.2 Party B warrants that it shall use the Office only for conducting its
business and without the prior written consent from Party A, Party B shall
not change the usage of the Office nor sub-lease the Office to any third
party.
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ARTICLE 2. TERM OF THE LEASE
2.1 Party A and Party B agree that the term of the lease is three years,
commencing from January 1, 2005 , ending on December 31, 2007.
2.2 Party A shall continue to lease the Office to Party B from the execution
date of this Agreement in accordance with the terms and conditions of this
Agreement. Party A and Party B acknowledge hereby that Party A has
performed its obligation under this Article 2.2.
2.3 After the expiration of the term of the lease as provided in the above
Article 2.1, if Party B has not breached any provisions herein during the
lease term, in case Party A still desires to lease the Office, Party B
shall has the pre-emptive right to rent it.
2.4 Party A and Party B acknowledge hereby that after the expiration of the
term of the lease provided hereunder, all of the decoration and the
equipments and facilities as invested, added and replaced by Party B upon
the fact that the Office shall belong to Party A free from extra charge.
2.5 Party B shall empty the Office and return it to Party A 10 days following
the expiration of the term of the lease provided herein. In case Party B
delays to return the Office, Party B shall pay Party A for the delay
period the rental calculated on the daily basis with the same price and
method provided herein. In case Party B delays to return the Office over
60 days, Party A shall have the right to expropriate all the deposit paid
by Party B for renting the Office.
2.6 In case Party B desires to continue to rent the Office after the
expiration of the term of the lease provided under Article 2.1, it shall
inform Party A in writing 30 days prior to the expiration of the term of
the lease. Having obtained the written consent from Party A, both Parties
may enter into a separate agreement on the renewal.
ARTICLE 3. RENTAL AND RENTAL PAYMENT, TAXATION AND THE TAX PAYMENT
3.1 Party A and Party B agree that within ten days following the execution
date of this Agreement, Party B shall pay Party A the deposit equal to
three-month rental at the sum of RMB141,660.00. Should there is no breach
of this Agreement by Party B during the lease term, Party B shall empty
the Office and return it to Party A upon the expiration of the term of the
lease in accordance with the terms and conditions in this Agreement. Where
Party B furnishes Party A at the same time with the evidence as its full
payment of all kinds of expense in relation to using of the Office
(including water, power, heating, property management and whatsoever at
Party B's expense), Party A shall refund the deposit to Party B within ten
days free from any extra charge. Should Party B breaches any
- 45 -
of the provisions herein during the lease term, Party A shall have the
right to retain the deposit upon the expiration of this Agreement.
3.2 Party A and Party B agree that within the term of the lease, the rental of
the Office shall be RMB 2.00 per square meter (for the floor area) per day
for the over-ground part and RMB 1.00 per square meter (for the floor
area) per day for the under-ground part. The monthly rentals shall be
calculated and paid by Party B on the basis of 30 days. According to this
method, Party B shall pay the rental to Party A at the amount of XXX 00000
per month, and accumulatively RMB 1,969,920.00 throughout of the term of
the lease.
3.3 Party B warrants that except as otherwise provided in this Agreement,
within the term of the lease, Party B shall bear all the expenses of
water, power, property management, gas, telephone and heating arising from
its using of the Office. Party B shall pay the expenses of water, power,
gas and telephone on the monthly basis, based on the respective volumes it
actually used in the previous month and at the rates provided by the
Beijing Municipal Government regarding the industrial using of water,
power, gas and telephone.
3.4 Party A and Party B shall bear all kinds of levies and taxes respectively
in respect of the property lease in accordance with the relevant
regulations promulgated by the Beijing Municipality.
3.5 Party A and Party B agree that from the execution date of this Agreement,
Party B shall, within the first 7 days of the first month of each quarter,
pay the rentals of that quarter to Party A at the amount of XXX 000000 in
a lump.
ARTICLE 4. MAINTENANCE AND DECORATION OF THE OFFICE DURING THE LEASE TERM
4.1 During the term of the lease, Party B can at its own discretion decorate
the Office, or install any equipments or facilities as necessary for
conducting its business. Party B shall notify Party A in writing before
the construction and furnish the decoration schedule and the construction
drawing for Party A's record. Only having obtained the prior written
consent from Party A, Party B shall apply with the relevant authorities to
complete all the related formalities to the construction.
4.2 During the term of the lease, Party B shall be responsible for the repair
of the Office during the lease term at its own cost.
ARTICLE 5. CHANGE AND TERMINATION OF THE LEASE TERM
5.1 During the term of the lease, except as otherwise agreed in this
Agreement, neither Party A nor Party B shall terminate this Agreement
unilaterally.
5.2 Except as otherwise agreed in this Agreement, in case Party B fails to pay
the rental as provided in Article 3, Party A shall have the right to
deduct the equal amount from the deposit paid by Party B. In case Party B
fails to pay the rental over 30 days after the
- 46 -
deposit is deducted to zero, Party A shall have the right to terminate
this Agreement and take the Office back.
5.3 During the term of the lease, if Party A intends to sell the Office, Party
B shall have the pre-emptive right to purchase the Office under the equal
conditions.
ARTICLE 6. RIGHTS AND OBLIGATIONS OF PARTY A:
6.1 Party A undertakes to make the Office available to Party B at the date as
provided in this Agreement.
6.2 Party A warrants that during the term of the lease, it shall not to
interrupt the use of the Office by Party B.
6.3 Except as otherwise agreed in this Agreement, during the term of Party B's
using of the Office, Party A shall not withdraw Party B's use right of the
Office nor request Party B to share the Office with any third party,
otherwise Party A shall compensate Party B for all the loss it suffered as
a result.
6.4 I Party A warrants that it possesses the integrity ownership upon the
Office.
ARTICLE 7. RIGHTS AND OBLIGATIONS OF PARTY B
7.1.1 After the expiration of the term of the lease provided herein, this Office
shall be returned to Party A on time without detriment to any equipment
and/or facility of this Office.
7.2 Party B shall, on time, pay the rental, and all the expenses of water,
electricity, gas, telephone, heating, etc. in respect of this Office.
7.3 During the term of the lease, Party B shall guarantee that it will use
this Office safely and take good care of the facilities of this Office.
7.4 During the term of the lease, Party B shall assume the liabilities and
debts occurred during the usage of this Office.
7.5 During the term of the lease, Party B shall, without the prior written
consent from Party A, have no right to sub-lease, and/or lend, and/or
transfer this Office to any third party for use, nor use the Office for
any other purposes.
7.6 During the term of the lease, Party B has no right to create any mortgage,
pledge, lien or other third party's right in any form on the office.
- 47 -
7.7 Party B shall strictly comply with the provisions specified in the
relevant laws, regulations and local regulations in Beijing and various
stipulations provided by Party A. In case of the breach of the above
provisions, it shall compensate Party A all losses arising therefrom.
7.8 Party B shall, without the prior written consent by Party A, not affix,
hang logos and advisement on the outside wall, door and window, and public
area. In case of the breach of this obligation, Party A shall have the
right to remove the hangings and advisement. Thus, all the expenses for it
shall be assumed by Party B on its own.
7.9 Party B shall not contact with third party in the name of Party A.
7.10 Party B shall be liable to all matters in detriment to the Office during
the term of the lease.
ARTICLE 8. In case that any force majeure events cause the Agreement to be
delayed in performance in part or in full, the parties shall not
liable to this delay. However, the party sufferring this force
majeure shall inform in writing the other party of this event
within 24 hours from the moment when such force majeure occurrs,
and provide the other party the relevant evidence documents issued
by the competent authority within 7 days from the date the event
happened. If the performance of this Agreement is delayed more
than 90 days due to such force majeure events, the parties shall
otherwise consult about the performance of this Agreement.
ARTICLE 9. The parties agree that they shall keep secret for the business
and technology secrecy acquired from performing this Agreement or
obtained pursuant to its current knowledge and experience, and for
all relevant matters concerning this Agreement and its schedule
(hereinafter collectively referred to as the "Business Secrets").
Without the prior written consent from other party, any party
shall not disclose the Business Secrets to any third party, and /
or take any method to use the Business Secrecy to conduct
competitive business with other party, and / or use the Business
Secrets to achieve profits for its own or third party. The
stipulation specified herein shall continue to be effective after
the termination of this Agreement.
ARTICLE 10. Any notice and /or other written documents during performing
the Agreement shall be sent to the following addresses by hand,
and / or by fax, and / or by express:
Party A: Beijing Wanhui Pharmaceutical Group
Registered Address:
Post Code:
Telephone Number:
Facsimile Number:
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Person for contact:
Party B: Beijing Wanwei Pharmaceutical Co. Ltd.
Registered Address:
Post Code:
Telephone Number:
Facsimile Number:
Person for contact:
In the case of any notice and / or written documents sent by hand, the date of
service is the next day when they are delivered to the above addresses. In the
case of any notice and / or written documents sent by fax, the date of service
is the date when they are faxed out. In the case of any notice and / or written
documents sent by express, the date of service is the fifth day from the next
date when the express is sent out.
In case of any changes on the matters concerning the above contact method of any
one party during performing this Agreement, the party shall notify the other
party within 3 days from the date such changes occurred. If the other party is
not notified overdue, it shall, in terms of this article, be deemed to have sent
to the party by sending the notice and / or written documents to the above
address.
ARTICLE 11. Where any one party or two parties did not perform, or not
properly perform, or not perform according to the terms and
conditions of this Agreement the any obligations or
responsibilities, including action or omission, such actions shall
be constituted the breach. Accordingly, the non-default party
shall have the right to require the default party to pay
liquidated damages to it by the following methods. If the
liquidated damages paid by the default party fails to make up the
losses suffered by non-default party, the non-default party shall
have the right to continue to request the default party to
indemnify the potion of loss beyond the liquidated damages
suffered by it.
11.1 Should Party B fail to pay the rent beyond 10 days in accordance with this
Article 3, Party A shall have the right to deduct the relevant amount from
the deposit paid by Party B and keep the remaining as liquidated damages.
Even after the expiration of this Agreement, Party A has the right to
refuse to return any of such deposit.
11.2 If Party A fails to deliver Party B the Office to use in accordance with
the terms and conditions of this Agreement, it shall be reliable to pay
the liquidated damages at the rate of at the rate of 0.21% of the total
rent of that month overdue on daily basis.
11.3 In case of termination of this Agreement by Party B during the term of the
lease, Party A shall not refund the rentals that have been paid by Party
B. Meanwhile, Party A shall have the right to expropriate all the deposits
paid by Party B.
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ARTICLE 12. The parties agree that the Agreement signed on October 20,
1999 by and between Party A and Party B shall be immediately
terminated from the date this Agreement comes to effect.
ARTICLE 13. The parties agree that any amendment and termination of this
Agreement shall be made by both parties with their consents after
consultation. Any one party shall have no right to modify or
terminate this Agreement unilaterally or by entering into any
contract or other documents with other parties, unless set forth
otherwise in this Agreement.
ARTICLE 14. Any disputes arising from this Agreement shall be resolved
through the amicable consultation between both Parties. If the
consultation fails, each party has the right to refer the dispute
to the competent people's court where the Office is located.
During the process of such actions, the parties shall continue to
perform the provisions of this Agreement other than those under
disputes and actions.
ARTICLE 15. The attachments hereto shall be the integral parts of this
Agreement and have the same legal effect and force.
ARTICLE 16. This Agreement shall become effective upon it is signed by the
authorized representative of both Parties.
ARTICLE 17. Any matters not provided by this Agreement shall be resolved
separately by both Parties through mutual consultation and
supplementary agreements. Such supplementary agreements shall be
the integral parts of this Agreement and have the same legal
effect and force. Such supplementary agreements shall prevail in
the case of any not inconformity with this Agreement.
ARTICLE 18. This Agreement shall be in two originals. Each party shall hold
one with the same legal force.
THE LANDLORD: BEIJING WANHUI PHARMACEUTICAL GROUP
Authorized representative
Date of signature
THE TENANT: BEIJING WANWEI PHARMACEUTICAL CO. LTD
Authorized representative:
Date of signature
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SCHEDULE 8
WAREHOUSE LEASE AGREEMENT (FORM)
LANDLORD: BEIJING WANHUI PHARMACEUTICAL GROUP (hereinafter referred to as
"PARTY A")
Domicile: Xx. 000, Xxxx Xxxxxxxxx Xxxx, Xxxxxxx Xxxxxxxx, Xxxxxxx
Legal Representative: Xxxx Xxxxxx
Title: General Manager
Telephone Number: [ ]
Postcode: [ ]
TENANT: BEIJING WANWEI PHARMACEUTICAL CO. LTD (hereinafter referred to as
"PARTY B")
Domicile: 3/F, 25 A, Beilizhongqu, Donghuashi, Chongwen District,
Beijing
Legal Representative: Xxx Xxxx
Title: Chairman
Telephone Number: [ ]
Postcode: 100062
WHEREAS:
(1) Party A owns the title to the warehouse referred herein. Such warehouse is
being occupied and used by Party B pursuant to an agreement ("PREVIOUS
AGREEMENT") entered by and between Party A and Party B dated October 20th
1999;
(2) For the purpose to further regulate the relationship between Party A and
Party B, both Parties desire to replace the Previous Agreement with this
Agreement.
Upon the amicable negotiation between Party A and Party B, the following
provisions have been agreed to regarding the lease of the warehouse, located at
Xxxxxx Xxxxxxx, Xxxxxxxx Xxxx, Xxxxxxxx Xxxxxxxx, Xxxxxxx, owned by Party A
(hereinafter referred to as the "WAREHOUSE") to Party B:
ARTICLE 1.
Party A shall lease to Party B the properties located at Xidian Village,
Majuqiao Town, Tongzhou District, Beijing for the purpose of warehousing. The
occupied land area of the Warehouse is 18,126 square meters and the floor area
is 7,015 square meters.
1.1 the layout and detailed location map of the Warehouse shall be attached
hereto and constitute integral part of this Agreement.
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1.2 Party B warrants that it shall use the Warehouse only for warehousing and
without the prior written consent from Party A, Party B shall not change
the usage of the Warehouse nor sub-lease the Warehouse to any third party.
ARTICLE 2. TERM OF THE LEASE
2.1 Party A and Party B agree that the term of the lease is three (3) years,
commencing from January 1, 2005, ending on December 31, 2007.
2.2 Party A shall tender the Warehouse to the use of Party B from the
execution date of this Agreement in accordance with the terms and
conditions of this Agreement. Party A and Party B hereby acknowledge that
Party A has performed its obligation under this Article 2.2.
2.3 After the expiration of the term of the lease as provided in the above
Article 2.1, in case Party A still desires to lease the Warehouse and
there has been no default of any kind on the part of Party B during the
term of the lease, Party B shall has the pre-emptive right to rent it on
the same conditions.
2.4 Party A and Party B hereby acknowledge that after the expiration of the
term of the lease provided hereunder, all of the decoration and the fixed
equipments and facilities as invested, added and replaced by Party B
during the term of the lease shall belong to Party A free of extra charge.
2.5 Party B shall empty the Warehouse and return it to Party A within 10
working days following the expiration of the term of the lease provided
herein. In case Party B delays in returning the Warehouse, Party B shall
pay Party A for the delay period the rental calculated on the daily basis
at the same the rate and in the same method provided herein. In case Party
B delays in returning the Warehouse over 60 days, Party A shall have the
right to expropriate all the deposit paid by Party B for renting the
Warehouse.
2.6 In case Party B desires to continue renting the Warehouse after the
expiration of the term of the lease provided under Article 2.1, it shall
inform Party A in writing 30 days prior to the expiration of the term of
the lease. Having obtained the written consent from Party A, both Parties
may enter into a separate agreement on the renewal.
ARTICLE 3. RENTAL AND RENTAL PAYMENT, TAXATION AND THE TAX PAYMENT
3.1 Party A and Party B agree that within ten days following the execution
date of this Agreement, Party B shall pay Party A the deposit equal to
three-month rental in the sum of RMB170,464.5. Should there is no breach
of this Agreement by Party B during the lease term, Party A shall return
such deposit to Party B without paying any interests thereon within 10
days upon the expiration of the term of the lease. Should Party B breaches
any of
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the provisions herein during the lease term, Party A shall have the right
to retain the deposit upon the expiration of this Agreement.
3.2 Party A and Party B agree that within the term of the lease, the rental of
the Warehouse shall be XXX 0.00 xxx xxxxxx xxxxxx (xxx xxx xxxxx xxxx) per
day for the Warehouse. The monthly rentals shall be calculated and paid by
Party B on the basis of 30 days. According to this method of calculation,
Party B shall pay the rental to Party A in the amount of RMB 56,821.5 yuan
per month, and in aggregate RMB 2,045,574 throughout of the term of the
lease.
3.3 Party B warrants that except as otherwise provided in this Agreement,
within the term of the lease, Party B shall bear all the expenses of
water, power, property management, gas, telephone and heating arising from
its using of the Warehouse. At the same time when Party B empties the
Warehouse, it shall provide Party A with the evidence that there are no
outstanding expenses payable.
3.4 Party A and Party B shall bear all kinds of levies and taxes respectively
in respect of the property lease in accordance with the relevant
regulations promulgated by the Beijing Municipality.
3.5 Party A and Party B agree that from the execution date of this Agreement,
within the first 7 days of the first month of each quarter, Party B shall
pay the rentals of that quarter to Party A in the amount of RMB 170,464.5
in a lump sum.
ARTICLE 4. MAINTENANCE AND DECORATION OF THE WAREHOUSE DURING THE LEASE TERM
4.1 During the term of the lease, Party B may in its own discretion decorate
the Warehouse, or install any equipments or facilities as necessary for
conducting its business. Party B shall notify Party A in writing before
the construction work and furnish the decoration schedule and the
decoration and construction drawing for Party A's record. Only after
having obtained the prior written consent from Party A, Party B shall
apply with the relevant authorities to complete all the related
formalities for the construction.
4.2 During the term of the lease, Party B shall be responsible for the repair
of the Warehouse during the lease term at its own cost.
ARTICLE 5. CHANGE AND TERMINATION OF THE LEASE TERM
5.1 During the term of the lease, except as otherwise agreed in this
Agreement, neither Party A nor Party B shall terminate this Agreement
unilaterally.
5.2 Except as otherwise agreed in this Agreement, in case Party B fails to pay
the rental as provided in Article 3, Party A shall have the right to
deduct the equal amount from the deposit paid by Party B. In case Party B
fails to pay the rental over 30 days after the
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deposit is deducted to zero, Party A shall have the right to terminate
this Agreement and take the Warehouse back.
5.3 During the term of the lease, if Party A intends to sell the Warehouse,
Party B shall have the pre-emptive right to purchase the Warehouse under
the equal conditions. The purchase price shall be determined on the basis
of the evaluation by an evaluation institution with required qualification
recognized and appointed by the parties.
ARTICLE 6. RIGHTS AND OBLIGATIONS OF PARTY A
6.1 Party A undertakes to make the Warehouse available to Party B on the date
as provided in this Agreement.
6.2 Party A warrants that during the term of the lease, it shall not interrupt
the use of the Warehouse by Party B in compliance with the laws and this
agreement.
6.3 Except as otherwise agreed in this Agreement, during the term of Party B's
using of the Warehouse, Party A shall not withdraw Party B's right to use
the Warehouse nor request Party B to share the Warehouse with any third
party, otherwise Party A shall compensate Party B for all the loss it
suffered therefrom.
6.4 If due to the fact the parcel of land where the Warehouse is located is
allocated by the State and therefore Party A may have to pay any fees in
respect of the lease, Party A warrants that it will pay such fees and the
payment thereof will not prejudice the provisions of this Agreement.
6.5 If this Agreement can not be performed or fully implemented due to the
reasons attributable to Party A, Party A shall procure for Party B a site
with same conditions as the Warehouse (i.e. with GSP Qualification
Certificate) and enable Party B to lease such site with the same or more
favorable terms and conditions. If Party A fails to procure such
replacement site, it shall bear all the expenses incurred by Party B in
order to obtain such replacement site.
ARTICLE 7. RIGHTS AND OBLIGATIONS OF PARTY B
7.1 After the expiration of the term of the lease provided herein, this
Warehouse shall be returned to Party A on time without detriment to any
equipment and/or facility of this Warehouse.
7.2 Party B shall pay the rentals and all the expenses of water, electricity,
gas, telephone, heating, etc. in respect of this Warehouse on time,.
7.3 During the term of the lease, Party B shall guarantee that it will use
this Warehouse safely and take good care of the facilities of this
Warehouse.
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7.4 During the term of the lease, Party B shall assume the liabilities and
debts occurred during the usage of this warehouse.
7.5 During the term of the lease, Party B shall, without the prior written
consent from Party A, have no right to sub-lease, and/or lend, and/or
transfer this Warehouse to any third party for use, nor use the Warehouse
for any other purposes.
7.6 During the term of the lease, Party B shall have no right to create any
mortgage, pledge, lien or other third party right in any form on the
Warehouse.
7.7 Party B shall strictly comply with the provisions specified in the
relevant laws, regulations and local regulations of Beijing and various
stipulations provided by Party A. In case of the breach of the above
provisions, it shall compensate Party A all losses arising therefrom.
7.8 Party B shall not contact with third party in the name of Party A.
7.9 Party B shall take good care of the items stored in the Warehouse, and it
shall not store any items flammable, explosive, erosive or with special
smell and any illegal items such as guns, ammunitions and drugs,
otherwise, any economic and legal responsibilities arising therefrom shall
be assumed by Party B solely.
7.10 Party B shall not affix or hang logos or advisements on the outside walls,
doors and windows or any public area of the Warehouse without the prior
written consent by Party A. In case of the breach of this obligation,
Party A shall have right to remove such hanging items and advisements, all
the expenses incurred therefor shall be assumed by Party B on its own..
ARTICLE 8.
In case that any force majeure events cause delay in performance of the
Agreement in part or in full, the parties shall not be liable to such delay.
However, the party suffering this force majeure shall inform in writing the
other party of this event within 24 hours from the moment when such force
majeure occurrs, and provide the other party with the relevant evidence
documents issued by the competent authority within 7 days from the date the
event happened. If the performance of this Agreement is delayed for more than 90
days due to such force majeure events, the parties shall otherwise consult with
each other on the performance of this Agreement.
ARTICLE 9.
The parties agree that they shall keep secret the business and technology
secrecy acquired from performing this Agreement or deduced pursuant to its
current knowledge and experience, and for all relevant matters concerning this
Agreement and its schedule (hereinafter collectively referred to as the
"BUSINESS SECRETS"). Without the prior written consent from other party, any
party shall not
- 55 -
disclose the Business Secrets to any third party, and/or use the
Business Secrecy by any means in business activities competitive with the other
party, and/or use the Business Secrets to gain profits for its own or third
party. The stipulation specified herein shall continue to be effective after the
termination of this Agreement.
ARTICLE 10.
Any notice and/or other written documents during performing the Agreement shall
be sent to the following addresses by hand, and / or by fax, and / or by express
mail:
Party A: Beijing Wanhui Pharmaceutical Group
Address: Xx. 000, Xxxx Xxxxxxxxx Xxxx, Xxxxxxx Xxxxxxxx, Xxxxxxx
Post Code:
Telephone Number:
Facsimile Number:
Attention:
Party B: Beijing Wanwei Pharmaceutical Co. Ltd.
Domicile: 3/F, 25 A, Beilizhongqu, Donghuashi, Chongwen District,
Beijing
Post Code: 100062
Telephone Number:
Facsimile Number:
Attention:
In the case of any notice and/or written documents sent by hand, the date of
service is the next day when they are delivered to the above addresses. In the
case of any notice and/or written documents sent by fax, the date of service is
the date when they are faxed out. In the case of any notice and/or written
documents sent by express mail, the date of service is the fifth day from the
next date when the express mail is dispatched.
In case of any changes on the matters concerning the above contact method of any
party during performing this Agreement, the party shall notify the other party
within 3 days from the date such changes occurred. If the other party is not
notified in time, the notice and/ or documents sent by such party to the
above-mentioned addressee in accordance with this Article shall be deemed being
served to the party whose address changes.
ARTICLE 11.
Any failure by any party or two parties to perform, or properly perform, or
perform according to the terms and conditions of this Agreement any obligations
or responsibilities hereof, including action or omission, shall constitute a
default under this Agreement. Accordingly, the non-default party shall have the
right to request the default party to pay liquidated damages to it by the
following methods. If
- 56 -
the liquidated damages paid by the default party fails to make up the losses
suffered by non-default party, the non-default party shall have the right to
continue to request the default party to indemnify the potion of loss beyond the
liquidated damages suffered by it. The losses as mentioned above shall include,
without limitation to, arbitration costs, attorney's fees, penalty, verification
fees, fees for traveling and communication paid by the non-default party in
connection with its request for default party's ceasing default acts and payment
of the relevant liquidated damages, and/or any liquidated damages, compensation,
penalty, verification fees, fees for traveling and communication paid by the
non-default party to a third xxxxx due to the default by the default party,
together with such costs and fees for litigation or arbitration or attorney's
fees so causes.
11.1 Should Party B fail to pay the rent beyond 10 days in accordance with this
Article 3, Party A shall have the right to deduct the relevant amount from
the deposit paid by Party B and keep the remaining as liquidated damages.
Even after the expiration of this Agreement, Party A has the right to
detain any of such deposit
11.2 In case of termination of this Agreement by Party B during the term of the
lease, Party A shall not refund the rentals that have been paid by Party
B. Meanwhile, Party A shall have the right to expropriate all the deposits
paid by Party B.
ARTICLE 12.
The parties agree that the Agreement signed on October 20, 1999 by and between
Party A and Party B shall be immediately terminated from the date when this
Agreement comes to effect.
ARTICLE 13.
The parties agree that any amendment to and termination of this Agreement shall
be made by both parties after reaching agreement thereon. Neither party shall
have right to modify this Agreement on its own or by entering into any contract
or other documents with third parties, or terminate this Agreement unilaterally,
unless otherwise agreed in this Agreement.
ARTICLE 14.
Any disputes arising from this Agreement shall be resolved through the amicable
consultation between both Parties. If the consultation fails, each party has the
right to refer the dispute to the competent people's court where the Warehouse
is located. During the process of such actions, the parties shall continue to
perform the provisions of this Agreement other than those under disputes and
actions.
ARTICLE 15.
The attachments hereto shall be the integral parts of this Agreement and have
the same legal effect and force.
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ARTICLE 16.
This Agreement shall become effective upon it is signed by the authorized
representative of both Parties.
ARTICLE 17.
Any matters not provided by this Agreement shall be resolved separately by both
Parties through mutual consultation and supplementary agreements. Such
supplementary agreements shall be integral parts of this Agreement and have the
same legal effect and force. Such supplementary agreements shall prevail in the
case of any inconformity with this Agreement.
ARTICLE 18.
This Agreement shall be signed in two originals. Each party shall hold one
original, which shall have the same legal force.
THE LANDLORD:
BEIJING WANHUI PHARMACEUTICAL GROUP
Authorized representative:
Date of signature:
THE TENANT:
BEIJING WANWEI PHARMACEUTICAL CO. LTD
Authorized representative:
Date of signature:
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