ENTRUSTED MANAGEMENT AGREEMENT
AMONG
THE FOURTEEN PERSONS INCLUDING XXXX XXXXXXX
SHAANXI AOXING PHARMACEUTICAL CO., LTD
AND
SHAANXI BIOSTAR BIOTECH LTD
[ ] 2007
XIANYANG, CHINA
ENTRUSTED MANAGEMENT AGREEMENT
This Entrusted Management Agreement (the "Agreement") is entered into on
the [ ] o [ ] day of [ ] o [ ] 2007 in Xianyang, China by:
PARTY A:
1. Xxxx Xxxxxxx, a citizen of PRC with ID Card
[ ]61040219550901129[ ], owns 45.13% shares of Shaanxi Aoxing
Pharmaceutical Co., Ltd.,
2. Xxxx Xxx, a citizen of PRC with ID Card number
[ ]610402198705207517[ ], owns 5.83% shares of Shaanxi Aoxing Pharmaceutical
Co., Ltd.,
3. Xxxx Xxxxxx, a citizen of PRC with ID Card number
[ ]000000000000000000[ ], owns 5.83% shares of Shaanxi Aoxing Pharmaceutical
Co., Ltd.,
4. Wang Rangmei, a citizen of PRC with ID Card number
[ ]610125196005042220[ ], owns 5.83% shares of Shaanxi Aoxing Pharmaceutical
Co., Ltd.,
5. Xxx Xxxxxx, a citizen of PRC with ID Card number
[ ]239005196007133130[ ], owns 5.18% shares of Shaanxi Aoxing Pharmaceutical
Co., Ltd.,
6. Xxxx Xxxxxx, a citizen of PRC with ID Card number
[ ]610104195707052654[ ], owns 4.85% shares of Shaanxi Aoxing Pharmaceutical
Co., Ltd.,
7. An Xiaoru, a citizen of PRC with ID Card number
[ ]220104196406234421[ ], owns 4.85% shares of Shaanxi Aoxing Pharmaceutical
Co., Ltd.,
8. Ao Quanfang, a citizen of PRC with ID Card number
[ ]61040219570504122x[ ], owns 4.69% shares of Shaanxi Aoxing Pharmaceutical
Co., Ltd.,
9. Xxxx Xxxxxxx, a citizen of PRC with ID Card number
[ ]61010219431016356x[ ], owns 3.24% shares of Shaanxi Aoxing Pharmaceutical
Co., Ltd.,
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10. Qin Hongxia, a citizen of PRC with ID Card number
[ ]610103196601022420[ ], owns 3.24% shares of Shaanxi Aoxing Pharmaceutical
Co., Ltd.,
11. Xx Xxxx, a citizen of PRC with ID Card number
[ ]610402196512265236[ ], owns 3.07% shares of Shaanxi Aoxing Pharmaceutical
Co., Ltd.,
12. Xx Xxxxxxx, a citizen of PRC with ID Card number
[ ]610403198202050067[ ], owns 2.91% shares of Shaanxi Aoxing Pharmaceutical
Co., Ltd.,
13. Bai Rong, a citizen of PRC with ID Card number
i3/462050319790316422xi?, owns 2.91% shares of Shaanxi Aoxing Pharmaceutical
Co., Ltd.,
14. Xx Xxx, a citizen of PRC with ID Card number
i3/4610125198301140529i?, owns 2.27% shares of Shaanxi Aoxing Pharmaceutical
Co., Ltd.,
15. Shaanxi Aoxing Pharmaceutical Co., Ltd. is an enterprise
incorporated and existing within the territory of China in accordance with the
law of the People's Republic of China, the registration number of its legal and
valid Business License is 0000000000000 and the legal registered address is
Chenyangzhai, Xianyang.
and
PARTY B: Shaanxi Biostar Biotech Ltd is a wholly-foreign owned enterprise
registered in Xianyang, PRC, and the registration number of its legal and valid
Business License is Qi Du Xxxxx Xian Zong Zi No. 000177.
WHEREAS:
1. Party A constitutes Shaanxi Aoxing Pharmaceutical Co., Ltd. (hereinafter
referred to as "Shaanxi Aoxing") and all of its shareholders holding all issued
and outstanding shares of Shaanxi Aoxing. Under this Agreement, Shaanxi Aoxing
and The Fourteen Persons including Xxxx Xxxxxxx have acted collectively as one
party to this Agreement;
2. Shaanxi Biostar Biotech Ltd. (hereinafter referred to as "Party B") is a
wholly-foreign owned enterprise incorporated and existing within the territory
of China in accordance with the law of the People's Republic of China, the
registration number of its legal and valid Business License is Qi Du Xxxxx Xian
Zong Zi No. 000177, and the legal registered address is 3rd floor, backyard of
Industrial and Business Bureau, Shiji Avenue, Xianyang.
3. Party A desires to entrust Party B to manage and operate Shaanxi Aoxing;
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4. Party B agrees to accept such entrustment and to manage Shaanxi Aoxing
on behalf of Party A.
Therefore, in accordance with laws and regulations of the People's
Republic of China, the Parties agree as follows after friendly consultation
based on the principle of equality and mutual benefit.
ARTICLE 1 ENTRUSTED MANAGEMENT
1.1 Party A agrees to entrust the management of Shaanxi Aoxing to Party B
pursuant to the terms and conditions of this Agreement. Party B agrees to manage
Shaanxi Aoxing in accordance with the terms and conditions of this Agreement.
1.2 The term of this Entrusted Management Agreement shall be from the
effective date of this Agreement to the earlier of the following:
(1) the winding up of Shaanxi Aoxing (the "Entrusted Period"), or
(2) the termination date of this Entrusted Management Agreement to be
determined by the Parties hereto, or
(3) the date on which Party B completes the acquisition of Shaanxi Aoxing.
1.3 During the Entrusted Period, Party B shall be fully responsible for the
management of Shaanxi Aoxing. The management service includes without limitation
the following:
(1) Party B shall be fully responsible for the operation of Shaanxi
Aoxing, which includes the right to appoint and terminate
members of Board of Directors and the right to hire managerial
and administrative personnel etc. Party A or its voting proxy
shall make a shareholder's resolution and a Board of Directors'
resolution based on the decision of Party B's Board of
Directors.
(2) Party B has the right to manage and control all assets of Party
A. Shaanxi Aoxing shall open an entrusted account or designate
an existing account as an entrusted account. Party B has the
full right to decide the use of the funds in the entrusted
account. The signer of the account shall be appointed or
confirmed by Party B. All of the funds of Shaanxi Aoxing y shall
be kept in this account, including but not limited to its
existing working capital and purchase price received from
selling its production equipment, inventory, raw materials and
accounts receivable to Party B, all payments of funds shall be
disbursed through this entrusted account, including but not
limited to the payment of all existing accounts payable and
operating expenses, payment of employees salaries and purchase
of assets, and all revenues from its operation shall be kept in
this account.
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(3) Party B shall have the full right to control and administrate
the financial affairs and daily operation of Shaanxi Aoxing,
such as entering into and performance of contracts, and payment
of taxes etc.
(4) If Shaanxi Aoxing requires additional funds to maintain its
operations, Party B shall provide such additional funds through
a bank loan or other resources and Party A shall provide
necessary assistance in obtaining these funds.
1.4 As consideration for the services provided by Party B hereunder,
Party A shall pay an entrusted management fee to Party B which shall be equal to
the earnings before tax (if any) of Shaaxi Aoxing. The entrusted management fee
shall be as follows: during the term of this agreement, the entrusted management
fee shall equal to Shaaxi Aoxing's estimated earnings before tax, being the
monthly revenues after deduction of operating costs, expenses and taxes other
than income tax. If the earnings before tax is zero, Shaanxi Aoxing is not
required to pay the entrusted management fee; if Shaanxi Aoxing sustains losses,
all such losses will be carried over to next month and deducted from next
month's entrusted management fee. Both Parties shall calculate, and Party A
shall pay, the monthly entrusted management fee within 20 days of the following
month. The above monthly payment shall be adjusted after the end of each quarter
but before the filing of tax return for such quarter (the "Quarterly
Adjustment"), so as to make the after-tax profit of Shaanxi Aoxing of that
quarter is zero. In addition, the above monthly payment shall be adjusted after
the end of each fiscal year but before the filing for the yearly tax return (the
"Annual Adjustment"), so as to make the after-tax profit Shaanxi Aoxing of that
fiscal year is zero.
1.5 Party B shall assume all operation risks out of the entrusted
management of Shaanxi Aoxing and bear all losses of Shaanxi Aoxing. If Shaanxi
Aoxing has no sufficient funds to repay its debts, Party B is responsible for
paying off these debts on behalf of Shaanxi Aoxing; if Shaanxi Aoxing's net
assets are lower than its registered capital, Party B is responsible for funding
the deficit.
ARTICLE 2 RIGHTS AND OBLIGATIONS OF THE PARTIES
2.1 During the term of this Agreement, Party A's rights and obligations
include:
(1) to hand over Shaanxi Aoxing to Party B for entrusted management
as of the effectiveness date of this Agreement and to hand over
all of business materials together with Business License and
corporate seal of Shaanxi Aoxing to Party B; --
(2) Party A has no right to make any decision regarding Shaanxi
Aoxing's operations without the consent of Party B;
(3) to have the right to know the business conditions of Shaanxi
Aoxing at any time and provide proposals;
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(4) to assist Party B in carrying out the entrusted management
according to Party B's requirement;
(5) to perform its obligations pursuant to the Shareholders' Voting
Rights Proxy Agreement by and between the Parties, and not to
violate the said agreement;
(6) not to intervene Party B's management over Shaanxi Aoxing in any
form by making use of shareholder's power;
(7) not to entrust or grant their shareholders' rights in Shaanxi
Aoxing to a third party other than Party B without Party B's
consent;
(8) not to otherwise entrust other third party other than Party B to
manage Shaanxi Aoxing in any form without Party B's consent;
(9) not to terminate this Agreement unilaterally with any reason; or
(10) to enjoy other rights and perform other obligations under the
Agreement.
2.2 During the term of this Agreement, Party B's rights and obligations
include:
(1) to enjoy independent and full right to manage Shaanxi Aoxing;
(2) to enjoy the right to dispose of all assets of Shaanxi Aoxing;
(3) to enjoy profits and bear losses arising from Shaanxi Aoxing's
operations during the period of entrusted management;
(4) to appoint all directors of Shaanxi Aoxing;
(5) to appoint general manager, deputy general manager, financial
manager and other senior managerial personnel of Shaanxi Aoxing;
(6) to convene shareholders' meetings of Shaanxi Aoxing in accordance
with the Shareholders' Voting Rights Proxy Agreement and sign
resolutions of shareholders' meetings; and
(7) to enjoy other rights and perform other obligations under the
Agreement.
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ARTICLE 3 REPRESENTATIONS AND WARRANTIES
The Parties hereto hereby make the following representations and
warranties to each other as of the date of this Agreement that:
(1) has the right to enter into the Agreement and the ability to
perform the same;
(2) the execution and delivery of this Agreement by each party have
been duly authorized by all necessary corporate action;
(3) the execution of this Agreement by the officer or representative
of each party has been duly authorized(pound)>>
(4) each party has no other reasons that will prevent this Agreement
from becoming a binding and effective agreement between both
parties after execution;
(5) the execution and performance of the obligations under this
Agreement will not:
(a) violate any provision of the business license, articles of
association or other similar documents of its own;
(b) violate any provision of the laws and regulations of PRC or
other governmental or regulatory authority or approval;
(c) violate or result in a breach of any contract or agreement to
which the party is a party or by which it is bound.
ARTICLE 4 EFFECTIVENESS
This Agreement shall take effect after it is duly executed by the
authorized representatives of the parties hereto with seals affixed.
ARTICLE 5 LIABILITY FOR BREACH OF AGREEMENT
During the term of this Agreement, any violation of any provisions herein
by either party constitutes breach of contract and the breaching party shall
compensate the non-breaching party for the loss incurred as a result of this
breach.
ARTICLE 6 FORCE MAJEURE
The failure of either party to perform all or part of the obligations
under the Agreement due to force majeure shall not be deemed as breach of
contract. The affected party shall present promptly valid evidence of such force
majeure, and the failure of performance shall be settled through consultations
between the parties hereto.
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ARTICLE 7 GOVERNING LAW
The conclusion, validity, interpretation, and performance of this
Agreement and the settlement of any disputes arising out of this Agreement shall
be governed by the laws and regulations of the People's Republic of China.
ARTICLE 8 SETTLEMENT OF DISPUTE
Any disputes under the Agreement shall be settled at first through
friendly consultation between the parties hereto. In case no settlement can be
reached through consultation, each party shall have the right to submit such
disputes to China International Economic and Trade Arbitration Commission in
Beijing. The Place of arbitration is Beijing. The arbitration award shall be
final and binding on both parties.
ARTICLE 9 CONFIDENTIALITY
9.1 The parties hereto agree to cause its employees or representatives
who has access to and knowledge of the terms and conditions of this Agreement to
keep strict confidentiality and not to disclose any of these terms and
conditions to any third party without the expressive requirements under law or
request from judicial authorities or governmental departments or the consent of
the other party, otherwise such party or personnel shall assume corresponding
legal liabilities.
9.2 The obligations of confidentiality under Section 1 of this Article
shall survive after the termination of this Agreement.
ARTICLE 10 SEVERABILITY
10.1 Any provision of this Agreement that is invalid or unenforceable due to
the laws and regulations shall be ineffective without affecting in any way the
remaining provisions hereof.
10.2. In the event of the foregoing paragraph, the parties hereto shall
prepare supplemental agreement as soon as possible to replace the invalid
provision through friendly consultation.
ARTICLE 11 NON-WAIVER OF RIGHTS
11.1 Any failure or delay by any party in exercising its rights under this
Agreement shall not constitute a waiver of such right.
11.2 Any failure of any party to demand the other party to perform its
obligations under this Agreement shall not be deemed as a waiver of its right to
demand the other party to perform such obligations later.
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11.3 If a party excuses the non-performance by other party of certain
provisions under this Agreement, such excuse shall not be deemed to excuse any
future non-performance by the other party of the same provision.
ARTICLE 12 NON-TRANSFERABILITY
Unless otherwise specified under this Agreement, no party can assign or
delegate any of the rights or obligations under this Agreement to any third
party nor can it provide any guarantee to such third party or carry out other
similar activities without the prior written from the other party.
ARTICLE 13 MISCELLANEOUS
13.1 Any and all taxes arising from execution and performance of this
Agreement and during the course of the entrusted management and operation shall
be borne by the Parties respectively pursuant to the provisions of laws and
regulations.
13.2 Any amendment entered into by the parties hereto after the
effectiveness of this Agreement shall be an integral part of this Agreement and
have the same legal effect as part of this Agreement. In case of any
discrepancy between the amendment and this Agreement, the amendment shall
prevail. In case of several amendments, the amendment with the latest date
shall prevail.
13.3 This Agreement is executed by Chinese and English in duplicate, and in
case of any conflict the Chinese version shall prevail. Each of the original
Chinese and English versions of this Agreement shall be executed in 4 copies.
Each party shall hold two original of each version, and the rest shall be used
for governmental registration or other necessary approval purposes.
13.4 In witness hereof, the Agreement is duly executed by the parties
hereto on the date first written above.
(REMAINDER OF PAGE INTENTIONALLY LEFT BLANK)
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(Page of signature only)
PARTY A:
XXXX XXXXXXX(signature):
XXXX XXX(signature):
XXXX XXXXXX(signature):
WANG RANGMEI(signature):
XXX XXXXXX(signature):
XXXX XXXXXX(signature):
AN XIAORU(signature):
AO QUANFANG(signature):
XXXX XXXXXXX(signature):
QIN HONGXIA(signature):
XX XXXX(signature):
XX XXXXXXX(signature):
BAI RONG(signature):
XX XXX(signature):
SHAANXI AOXING PHARMACEUTICAL CO., LTD
(official seal)
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Authorized representative:
(signature)
PARTY B:
SHAANXI BIOSTAR BIOTECH LTD
(official seal)
Authorized representative:
(signature)
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