JOINT VENTURE CONTRACT FOR THE ESTABLISHMENT OF Neusoft Positron Medical Systems Co., Ltd. By and between 1. NEUSOFT MEDICAL SYSTEMS CO., LTD. and 2. POSITRON CORPORATION
JOINT
VENTURE CONTRACT
FOR
THE ESTABLISHMENT OF
Neusoft
Positron Medical Systems Co., Ltd.
By
and between
1. NEUSOFT
MEDICAL SYSTEMS CO., LTD.
and
2. POSITRON
CORPORATION
ANNEXES
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Annex
1
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Articles
of Association
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Annex
2
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Technologies
Contribution Agreement
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-i-
THIS
JOINT VENTURE CONTRACT
is
entered into this July 30, 2005, in accordance with the Law of the People's
Republic of China on Chinese-Foreign Equity Joint Ventures and the Regulations
for the Implementation of the Law of the People's Republic of China on
Chinese-Foreign Equity Joint Ventures (hereinafter collectively referred to
as
the "Joint
Venture Law")
and
other relevant and officially promulgated Chinese laws and regulations by and
between:
NEUSOFT
MEDICAL SYSTEMS CO., LTD.,
a
limited liability company incorporated under the laws of the P.R.C., with
registered offices at ▇▇. ▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
110179, PRC (hereinafter referred to as "N
M S");
AND
POSITRON
CORPORATION,
a
limited liability company incorporated under the laws of State of Texas of
the
United States of America, with its registered office at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇ (hereinafter referred to as
"POSITRON").
NMS
and
POSITRON may hereinafter be referred to individually as a "Party"
or
collectively as the "Parties".
WHEREAS,
each of POSITRON and NMS are active in researching, developing, manufacturing,
marketing and/or selling of Positron Emission Tomography ("PET");
and
WHEREAS,
the Parties seek to mutually benefit from each other's strengths, and intend
to
cooperate in the research, development and manufacturing of PET, as further
described below; and
WHEREAS,
the Parties intend to form an equity joint venture company to be called
"{
1:9
*WC( MAN ri gAh'RW%: aj"
in
Chinese and "Neusoft Positron Medical Systems Co., Ltd." in English;
and
WHEREAS,
the Parties have agreed that the terms and conditions of the creation of such
a
company shall be as set out herein below, subject to such other terms and
conditions as remain to be negotiated between the Parties; and
WHEREAS,
the respective board of directors, board of management and/or supervisory board
of POSITRON and NMS, as applicable, have duly authorized and approved the
execution of this Joint Venture Contract.
NOW,
THEREFORE, the Parties express their intentions as follows:
The
Parties agree that the following terms and conditions have been the agreed
upon
terms and conditions of the Joint Venture Contract the Parties intend to enter
into.
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1.
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DEFINITIONS
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Unless
the terms of this Joint Venture Contract provide otherwise, the following terms
shall have the meanings set forth below:
(a) "Affiliate",
with
respect to a Party, shall mean any corporation, partnership, joint venture
or
other entity controlling, controlled by or under common control with such Party,
but shall not include the Company; a person or entity shall be deemed to
"control" another person or entity if the former possesses, directly or
indirectly, at least 51% of the nominal value of the issued share capital and
the power to direct or cause the direction of the management and policies of
the
latter.
(b) "Articles
of Association"
shall
mean the Articles of Association of the Company dated as of the date hereof
between the Parties, and as may be amended or restated from time to time by
the
Parties.
(c) "Assist"
or
"Assistance"
shall
mean, respectively, to actively and aggressively support and implement, or
the
active and aggressive support and implementation of, an activity or application
with full intent and commitment to obtain the results sought by the Party or
the
Company which is being assisted.
(d) "Board"
or
"Board
of Directors"
shall
mean the Board of Directors of the Company.
(e) "Business
License"
shall
mean the business license to be issued to the Company by the competent PRC
authorities.
(f) "Business
Plan"
shall
mean the annually renewed 5-year operations plan of the Company as set by the
Board for implementation by the Management Personnel of the
Company.
(g) "Chairman"
shall
mean the chairman of the Board of Directors of the Company.
(h) "China"
or the
"PRC" shall mean the People's Republic of China.
(i) "Company"
shall
mean Neusoft POSITRON Medical Systems Co., Ltd., which is the equity joint
venture company established by the Parties pursuant to the Joint Venture Law,
other relevant and officially promulgated laws and regulations of the PRC,
and
this Contract.
(j) "Confidential
Information"
shall
mean technology and know-how as well as trade secrets, strategic business or
marketing information, business projections, secret processes and other
processes, data, formulae, programs, manuals, designs, sketches, photographs,
plans, drawings, specifications, reports, studies, findings, non-patented
inventions and ideas, and other information relating to the production,
packaging, use, pricing, or sales and distribution, whether of a technical,
engineering, operational, business or economic nature, whenever designated
as
"Confidential" or the like by NMS or POSITRON or their Affiliates and provided
by NMS, POSITRON or their Affiliates in connection with the establishment of
the
Company and any matters related thereto, the implementation of and/or the
conduct of the business contemplated by this Contract and the other contracts
contemplated herein. Confidential Information, however, shall not include
information which is now or hereafter becomes part of the public domain through
authorized publication, information which the receiving Party can demonstrate
was in its possession at the time of receipt, and information which hereafter
comes into the possession of the receiving Party was or is not acquired by
the
receiving Party directly or indirectly from the providing Party or sources
under
an obligation of secrecy to such providing Party.
-2-
(k) "Contract"
shall
mean this Joint Venture Contract and the Annexes attached hereto.
(l) "Contribution
Date"
shall
mean the mutually convenient date determined by the Parties in accordance with
Article 6.3 on which the Parties shall simultaneously contribute all of their
respective contributions subscribed by themselves to the registered capital
of
the Company .
(m) "Corporate
Name License Agreement"
shall
mean the agreement to be entered into between the Company and POSITRON or NMS
or
any of its Affiliate(s) for the license by POSITRON or NMS or such Affiliate(s)
of its corporate name to the Company.
(n) "Deputy
General Manager"
shall
mean the deputy general manager of the Company.
(o) "Director"
shall
mean a member of the Board of Directors.
(p) "Effective
Date"
shall
mean the day on which this Contract has been approved by the Examination and
Approval Authority.
(q) "Establishment
Date"
shall
mean the date on which the Business License of the Company is
issued.
(r) "Examination
and Approval Authority"
shall
mean the central Ministry of Commerce or such other Chinese authority as is
duly
authorized by law to approve this Contract.
(s) "Event
of Force Majeure"
shall
mean any event, foreseeable or unforeseeable, the consequences of which are
reasonably unavoidable or beyond the reasonable control of a Party, and which
prevents total or partial performance of a non-payment obligation under this
Contract by such Party.
(t) "Feasibility
Study"
shall
mean the jointly prepared feasibility study as will be prepared by the
Parties.
(u) "Foreign
Exchange"
shall
mean any foreign currency which can be freely exchanged, converted, or traded
in
the open international currency market.
(v) "General
Manager"
shall
mean the general manager of the Company.
(w) "Information"
shall
mean drawings, specifications, samples, models, processes, procedures,
instructions, technology, applied development engineering data, reports, and
all
other technical or commercial information, data and documents of any kind
whatsoever, but excluding any IPRs to which such Information
relates.
-3-
(x) "Intellectual
Property Rights"
("IPRs")
shall
mean patents (including reissues, divisions, continuations and extensions
thereof), utility models, and registered and unregistered designs including
mask
works, copyrights and any other form of protection afforded by law to
inventions, models, designs or technical Information, and applications
therefor.
(y) "Invention(s)
of the Company"
shall
mean any invention, discovery or, modification related to any patent, trademark,
copyright, technology know how or, any intellectual property right, whether
patentable or not patentable, which is individually or, jointly created,
developed, conceived or generated by the Company. For the avoidance of doubt,
Invention of Company shall include any invention, discovery or, modification
related to any patent, trademark, copyright, technology know how or, any
intellectual property right, whether patentable or not patentable, which is
individually or, jointly created, developed, conceived or generated by the
Company based on the software according to the provisions of the Software
Sub-license Agreement and the Original Technologies.
(z) "Joint
Venture Term"
shall
mean the duration of the Company as provided for in Article 21
hereof.
(aa)
"Labour
Contract"
shall
mean the individual labour contract to be entered into between the Company
and
each Management Personnel and/or each Company Personnel.
(bb)
"Liquidation"
shall
mean the adoption of a unanimous Board resolution to terminate the Joint Venture
Contract pursuant to Articles 22.1(a), (d), (e), (f) or (g) of the Joint Venture
Contract.
(cc)
"Liquidation
Committee"
shall
mean the committee consisting of five (5) members, of whom three (3) shall
be
appointed by NMS, two (2) by POSITRON.
(dd)
"Management
Personnel"
shall
mean the General Manager, Deputy General Manager and such other senior personnel
positions that are designated as Management Personnel positions by the Board
from time to time.
(ee)
"Original
Technologies"
shall
mean all the patents and Proprietary Information contributed by POSITRON as
capital to the Company in accordance with the Technologies Contribution
Agreement
(ff)
"Plant
Lease Agreement"
shall
mean the agreement entered into by and between the Company and NMS or NMS's
Affiliate concerning the lease of plant by the Company.
(gg) "Product"
or
"Products
"
shall
mean the PET system produced by the Company and the PET/CT created by
integrating the CT products developed by Philips and Neusoft Medical Systems
Co., Ltd. with PET system.
(hh) "Project
Documents"
shall
mean (a) this Contract; (b) Technologies Contribution Agreements; (c) Corporate
Name License Agreement; (d) Software Sub -license Agreement; (e) Trademark
License Agreements; and (f) other documents and agreements entered into by
NMS,
POSITRON or the Company in connection with the transaction
hereunder.
-4-
(ii)
"Proprietary
Information"
shall
mean in respect to the technology possessed and owned by POSITRON, NMS or the
Company each, which are specifically related to PET and image handling and
storage systems, including, all existing and future advanced and technical
information (i.e. written information, blueprints, pictures, charts, cassettes,
disks, CDs, video-tapes and information systems), skills, technology and
experience related to the design, developing, manufacturing, inspecting,
marketing and selling of PET, which has not been patented and is not patentable,
and all knowledge and experience related to the aforementioned medical
technologies. Notwithstanding the foregoing, Proprietary Information shall
exclude Software Components, which are based upon third party software. For
the
avoidance of doubt, Proprietary Information of the Company shall include all
the
relevant information contributed by POSITRON to the Company as
capital.
(jj)
"Renminbi"
or
"RMB"
shall
mean the lawful currency of the PRC.
(kk) "Site"
shall
mean the site located in Shenyang, China, which will be described in the Plant
Lease Agreement.
(ll)
"Software
Sub-License Agreement"
shall
mean the agreement to be entered into between POSITRON and the Company for
the
sub-license by POSITRON of certain software to the Company.
(mm) "Technical
Documentation of the Company"
shall
mean the written documentation, drawings, pictures, charts, cassette-tapes,
disks, software know how, software platforms, video-tapes, and/or information
for PET that are possessed and developed by the Company, which are related
to
the design, development, assembly, manufacture, quality assurance, management
and after-sale services of the technology and products.
(nn)
"Technologies
Contribution Agreement"
shall
mean the agreement entered into between the Parties hereto in the form described
in Annex 2 hereto regarding POSITRON's capital contribution in the form of
technology.
(oo)
"Three
Funds "
shall
mean, collectively, the Company's reserve fund, the bonus and welfare fund,
and
the enterprise development fund.
(pp)
"Trademark
License Contract"
shall
mean the agreement to be entered into between the Company and POSITRON or NMS
or
any of its Affiliate(s) for the license by POSITRON or NMS or such Affiliate(s)
of certain trademarks to the Company.
(qq)
"United
States Dollars"
or "US"
shall mean the lawful currency of the United States of America.
(rr)
"Working
Personnel"
shall
mean all employees and staff of the Company other than Management Personnel
and
members of the Board.
-5-
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2.
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INTERPRETATION
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2.1
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Words
importing the singular shall include the plural and vice versa; words
denoting persons shall include bodies corporate and unincorporated
associations of persons and vice
versa.
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2.2
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The
headings in this Contract do not affect its
interpretation.
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2.3
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The
Annexes to this Contract form an integral part of
it.
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3.
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REPRESENTATIONS
AND WARRANTIES OF THE PARTIES
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3.1
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Representations
and Warranties of NMS
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NMS
hereby represents and warrants to POSITRON as follows:
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(a)
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NMS
is a limited liability company duly organized and validly existing
under
the laws of the PRC.
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(b)
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NMS
has submitted to POSITRON a valid, true and complete copy of its
current
business license bearing a current annual inspection seal from the
relevant administration for industry and
commerce.
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(c)
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Each
of NMS and its relevant Affiliates has taken all appropriate and
necessary
corporate action to (i) empower its legal representative or such
other
duly authorized representative whose signature is affixed hereto
and
thereto to sign this Contract and all of the contracts contemplated
herein
to which it is a party, (ii) authorize the execution and delivery
of this
Contract and all of the contracts contemplated herein to which it
is a
party, and (iii) authorize the performance and observance of the
terms and
conditions hereof and thereof.
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(d)
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Each
of NMS and its relevant Affiliates has obtained all consents, approvals
and authorizations necessary for the valid execution and delivery
of this
Contract and all of the contracts contemplated herein to which it
is a
Party and to observe and perform its obligations hereunder and thereunder;
provided, however, that this Contract shall be subject to the approval
of
the Examination and Approval Authority or other examination and approval
authority before the same may become
effective.
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(e)
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Upon
the approval of the Examination and Approval Authority, this Contract
shall constitute the legal, valid and binding obligation of NMS
enforceable against NMS in accordance with its
terms.
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(f)
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NMS
's execution, delivery and performance of this Contract or any of
the
other contracts contemplated herein will not violate any of their
constitutive documents, any other agreement or obligation of NMS,
or
currently effective law, regulation or decree of China that may be
applicable to any aspect of the transactions contemplated
hereunder.
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-6-
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3.2
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Representations
and Warranties of POSITRON
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POSITRON
hereby represents and warrants to NMS as follows:
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(a)
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POSITRON
is a corporation duly organized, validly existing and in good standing
under the laws of the State of Texas of the United States of
America.
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(b)
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POSITRON
has submitted to NMS a valid, true and complete copy of its proof
of
registration with the Secretary of State of the State of
Texas.
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(c)
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POSITRON
has taken all appropriate and necessary corporate action (i) to empower
its duly authorized representative whose signature is affixed hereto
or
thereto to sign this Contract and all of the contracts contemplated
herein
to which it is a party, (ii) authorize the execution and delivery
of this
Contract and all of the contracts contemplated herein to which it
is a
party, (iii) to authorize the performance and observance of the terms
and
conditions hereof and thereof; provided however, this Contract shall
be
effective and binding upon POSITRON only when executed by both ▇▇▇▇
▇.
▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, POSITRON's President and Chairman,
respectively.
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(d)
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POSITRON
has obtained all consents, approvals and authorizations necessary
for the
valid execution and delivery of this Contract and all of the contracts
referred to herein to which it is a party; provided, however, that
this
Contract shall be subject to the approval of the Examination and
Approval
Authority before the same may become
effective.
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(e)
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Upon
the approval of the Examination and Approval Authority, this Contract
shall constitute the legal, valid and binding obligation of POSITRON
enforceable against POSITRON in accordance with its
terms.
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(f)
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Upon
the Contribution Date, POSITRON shall shut down its product line
in
connection with the PET products and stop competing with the Company,
subject to the terms of this
Contract.
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(g)
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POSITRON's
execution, delivery and performance of this Contract or any of the
other
contracts contemplated herein will not violate any of their constitutive
documents, any other agreement or obligation of POSITRON, or currently
effective law, regulation or decree of United States of America and
PRC
that may be applicable to any aspect of the transactions contemplated
hereunder.
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4.
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ESTABLISHMENT
OF THE COMPANY
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4.1
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Establishment
of the Company
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In
accordance with the Joint Venture Law and other relevant and officially
promulgated PRC laws and regulations, the Parties hereby agree to establish
the
Company pursuant to the terms of this Contract. The Company shall be a legal
person under the laws of the PRC subject to the protection and jurisdiction
of
PRC law.
-7-
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4.2
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Name
and Address of the Company
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(a) The
name
of the Company shall be "Neusoft Positron Medical Systems Co., Ltd." in English
and "it
PEi .'
I: iz ARA.
PRiz. "
in
Chinese.
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(b)
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The
legal address of the Company shall be as follows: ▇▇. ▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇
▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ 110179,
PRC.
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4.3
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Limited
Company
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The
Company shall be a limited company. The liability of each of the Parties for
the
obligations, liabilities, debts and losses of the Company shall be limited
to
that Party's obligation to make its respective contribution to the registered
capital of the Company within the period required by Chinese law. Unless it
has
agreed otherwise in a separate agreement with a third party, a Party shall
not
be liable for any obligations or liabilities of the Company. Creditors of the
Company shall have recourse only to the assets of the Company and shall not
have
any claim against the Parties for the obligations of the Company, and in case
any creditor of the Company brings any action or claim against any Party for
any
act of omission of the Company, the Company shall defend, at its cost, such
Party and hold harmless such Party against such claims or actions or any loss
or
expenses incurred thereby. A Party shall not be required to provide any further
funds to or on behalf of the Company beyond the amount contributed by the Party
under this Contract.
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4.4
|
Profits
and Losses
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The
Parties shall share the profits, losses and risks of the Company in proportion
to and, in the event of losses, to the extent of their respective contributions
to the registered capital of the Company.
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4.5
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Other
Contracts
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Within
thirty (30) days of the Establishment Date, (i) the Company and NMS or its
relevant Affiliate shall duly execute the Plant Lease Agreement, the Trademark
License Contract, the Corporate Name License Agreement; and (ii) the Company
and
POSITRON shall duly execute the Technologies Contribution Agreement, the
Trademark License Contract, the Corporate Name License Agreement and the
Software Sub - license Agreement. For the avoidance of doubt, no contracts
in
place between either Party and a third party shall be assigned to the Company
without the express written consent of the Board.
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4.6
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Branches
and Offices
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The
Company may establish branches or offices in the PRC upon the approval of the
Board of Directors and registration by the local administration for industry
and
commerce where such branch or offices shall be located.
-8-
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5.
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PURPOSES,
SCOPE OF BUSINESS AND SCALE OF PRODUCTION OF THE
COMPANY
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5.1
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Purposes
and Scope of the Company
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The
purpose and scope of business of the Company shall be research, development,
manufacturing of the Positron Emission Tomography system (PET), and an
integrated system (PET/CT) by the X-ray Computed Tomography system (CT) and
the
PET system, and providing relevant technical consultation and
services.
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5.2
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Estimated
Scale of Production
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The
estimated scale of production is as set forth in the Feasibility Study. All
projections, figures, costs, capital and funding requirements contained in
the
Feasibility Study are estimates only and may be adjusted by the Board of
Directors during the actual production and operation of the Company based upon
the requirements of the market, the ability of the Company to utilize the
relevant technology and other factors.
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6.
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TOTAL
AMOUNT OF INVESTMENT AND REGISTERED CAPITAL
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6.1
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Total
Amount of Investment
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The
total
amount of investment of the Company shall be ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇ Dollars (US $2,800,000).
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6.2
|
Registered
Capital
|
The
registered capital of the Company shall be Two Million United States Dollars
(US
$2,000,000) and shall be contributed by the Parties in the following
proportions:
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(a)
|
NMS's
aggregate contribution to the registered capital of the Company shall
be
sixty-seven point five percent (67.5%) of the total registered capital
of
the Company, and shall be Renminbi equivalent to ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Dollars (US$ 1,350,000). NMS's
contribution shall be made in cash.
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(b)
|
POSITRONS
aggregate contribution to the registered capital of the Company shall
be
thirty two point five percent (32.5%) of the total registered capital
of
the Company, and shall be Six Hundred and Fifty Thousand United States
Dollars (US$ 650,000), among which Two Hundred and Fifty Thousand
United
States Dollars (US$ 250,000) shall be made in cash, and Four Hundred
Thousand United States Dollars (US$ 400,000) shall be made in the
form of
the technology (see the Technologies Contribution Agreement for
details).
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The
exchange rate of USD/RMB shall be according to the foreign exchange rate
published by the People's Bank of China on the date of above
contribution.
-9-
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6.3
|
Timing
of Capital Contributions
|
Contributions
to the registered capital of the Company shall be made by the Parties in full
within sixty (60) days after the Establishment Date, and POSITRON shall make
its
contribution of technology according to the provisions of the Technologies
Contribution Agreement. The obligations of a party to make such contributions
shall be subject to the other party simultaneously making its contributions
and
to the Company having received all necessary licenses, permits, leases and
authorizations necessary to commence and conduct the business contemplated
by
this Contract.
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6.4
|
Investment
Certificates
|
Within
sixty (60) days after the Parties have made their capital contributions, the
Company shall engage an accountant registered in China and approved by the
Board
to verify such contributions. Upon the issuance of a verification report by
such
accountant, the Company shall issue to each contributing Party an investment
certificate signed by the Chairman evidencing that the contribution was made.
Such investment certificate shall be conclusive evidence of each Party's capital
contribution and equity interest in the Company.
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6.5
|
Increase
or Reduction of Registered
Capital
|
Any
increase or reduction in the registered capital of the Company shall be approved
by the Board of Directors and submitted to the Examination and Approval
Authorities for approval. Upon receipt of such approval, the Company shall
register the increase or reduction in the registered capital with the
appropriate administration for industry and commerce. Each Party has the right
(but no obligation) to contribute towards any increase in the registered capital
a proportion of such increase equal to the proportion that such Party's
contributions to the registered capital of the Company, when completed, bear
to
the total registered capital of the Company; provided, however, that the Parties
may agree to adjust their proportional interests in the Company's registered
capital subject to the approval of the Examination and Approval Authorities.
In
the event an increase of the registered capital is reasonably necessary, either
to fulfill the then-current Business Plan of the Company (which Business Plan
is
approved by the Board) or to fulfill the actual requirement (as agreed by the
Board), and a Party does not want to contribute to such registered capital
increase, then such Party shall not unreasonably withhold its consent to
increase the registered capital if the other Party hereto is prepared to
contribute thereto. Notwithstanding the foregoing, the interest of POSITRON
shall not be reduced by reason of any increase in the total registered capital
to less than twenty percent (20%) of such capital.
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6.6
|
Indemnification
|
Each
Party hereby agrees to defend and indemnify the Company and the other Party
hereto, such Party's Affiliates, directors, officers, employees, and agents
from
and forever hold harmless the Company and the other Party, such Party's
Affiliates, directors, officers, employees, and agents against all claims,
actions, proceedings, damages, losses, liabilities, costs and expenses
(including reasonable attorney's fees) arising out of, or based upon, a claim
from any third party that any use of any of the contributions made by the other
Party hereto, (whether or not incorporated in any products) constitutes
infringement, or violation or misappropriation of an intellectual property
right
or other proprietary right of such third party based upon a legal judgment
of a
court of competent jurisdiction.
-10-
In
the
event that a contribution by a Party is held in any suit or proceeding to
infringe, violate or misappropriate a third party's intellectual property right
or other proprietary right, the contributing Party agrees that it shall defend
at its own cost and expenses any suit or proceeding brought by any third party
against the Company or the company responsible for selling of the Products
insofar as such suit or proceeding is based on a claim that the contribution
directly infringes any intellectual property right (IPR) of such third party
and
shall indemnify the Company or the company responsible for selling of the
Products against any final award of damages in such suit or proceeding, provided
that the contributing Party is notified promptly in writing of any such suit
or
proceeding for infringement and provided further that the contributing Party
is
given full authority at its option to settle or conduct the defence thereof,
as
well as full assistance and cooperation of the Company, and the other Party
is
provided for in the contributing Party's defence. No costs or expenses shall
be
incurred for the account of the contributing Party without the prior written
consent of the contributing Party. If no appeal can be taken or is taken to
the
final judgment, and the use of the contributing Party's technology is enjoined,
the contributing Party shall at its own option and at its own expense either:
(a) replace the contribution, without additional charge, with a compatible,
functionally equivalent and non-infringing contribution with an equivalent
or
better performance; or (b) modify the contribution to avoid the infringement,
violation or misappropriation such that the performance is not deteriorated;
or
(c) procure for the other Party and the Company the right to continue to
purchase, distribute; and for the other Party, the Company and their customers,
to use the contribution as contemplated by this Contract.
The
foregoing states the entire liability of each contributing party in connection
with the infringement of third party's IPR by the technology provided by each
contributing party hereunder. For purposes of this Article 6.6, contribution
of
technology to the Company is deemed to include the license of technology by
POSITRON to the Company.
|
7.
|
TRANSFER
OF INTEREST
|
|
7.1
|
Non-Encumbrance
|
Neither
Party may encumber its share of the registered capital or its equity interest,
rights and obligations under this Contract and other interests in the Company
(collectively, "Interest")
without (a) obtaining the required approvals, and (b) the prior written consent
of the other Party; however, POSITRON does not need to obtain the prior written
consent of NMS for any lien created in favor of Imagin Diagnostic Centers,
Inc.,
Cipher Holding Corporation., or Solaris Opportunity Fund, L.P. or their
respective assigns ("Positron
Investors"),
provided that the enforcement of any lien by any POSITRON Investor will not
affect POSITRON 's performance of its obligations hereunder.
-11-
|
7.2
|
Valuation
|
Except
in
the event of valuation pursuant to the Article 22.2 of this Contract, any Party
who desires to sell or otherwise transfer its Interest shall bear the cost
of
any valuation of the Company as a going concern. The Parties shall render all
assistance and provide all such documentation and other information to the
appraiser as such appraiser may consider necessary and shall ensure that the
Company provides same.
|
7.3
|
Transfer
of Interest
|
|
(a)
|
Subject
to the provisions of this section 7, a Party may assign, sell or
otherwise
dispose of all or part of its Interest in the Company to any third
party
(the "Transfer").
|
|
(b)
|
When
a Party (the "Transferring
Party")
wishes to transfer all or part of its Interest to a third party,
it shall
provide written notice (the "Notice")
to the other Party (the "Non-Transferring
Party")
specifying its wish to make the Transfer; the Interest it wishes
to
transfer; the terms and conditions of the Transfer; and the identity
of
the proposed transferee.
|
|
(c)
|
The
Non-Transferring Party shall have a right of first refusal to purchase
the
whole of such offered Interest on terms and conditions no less favourable
than those specified in the Notice. If the Non-Transferring Party
elects
to exercise its right of first refusal, it shall notify the Transferring
Party in writing within thirty (30) days of the giving of the Notice
to
the Non-Transferring Party of its intention to purchase the whole
of the
Interest to be transferred and both Parties shall cause the Directors
appointed by it to approve the Transfer at a duly convened Board
meeting.
The Non-Transferring Party shall then, within thirty (30) days following
its written acceptance, subject only to delays caused by obtaining
necessary government approvals, purchase such Interest on the terms
and
conditions specified in the Notice, unless both Parties agree otherwise
in
writing.
|
|
(d)
|
If
the Non-Transferring Party fails to respond in writing to the Notice
within such thirty (30)-day period, the Non-Transferring Party shall
be
deemed to have consented to the Transfer. If the Non Transferring
Party
consents, or is deemed to have consented to the Transfer, the Transferring
Party shall be free during the period of ninety (90) days following
the
expiration of the thirty (30)-day notice period to transfer such
Interest
to a third party at a price which equals or exceeds the price specified
in
the Notice and on terms and conditions no more favourable to the
third
party than those of the original Notice without again complying with
the
procedures set forth in Articles 7.3 (b) and (c); provided, however,
that
the Transfer shall not be deemed effective and shall be subject to
rescission unless and until (i) a copy of the transfer agreement
to be
executed between the Transferring Party and the transferee has been
submitted to the Non-Transferring Party and, if only a portion of
the
Transferring Party's Interest in the Company is being transferred,
the
transferee has agreed therein to assume, jointly and severally with
the
Transferring Party, the rights and obligations of the Transferring
Party
under this Contract, or, if all of the Transferring Party's Interest
in
the Company is being transferred, the transferee has agreed therein
to
assume all of the rights and obligations of the Transferring Party
under
this Contract, (ii) the Board of Directors unanimously approves the
Transfer at a duly convened Board meeting, and (iii) all necessary
amendments to this Contract, the Annexes and other contracts and
documents
contemplated herein and therein have been submitted for approval
to and
have received the approval of, the Examination and Approval Authority,
and
(iv) all other government approvals necessary to give effect to the
Transfer have been obtained.
|
-12-
|
(e)
|
The
Transfer and payment of the purchase price shall be completed within
such
ninety (90)-day period, subject only to delays caused by obtaining
necessary government approvals. If the Transfer is not completed
within
such ninety (90)-day period, except for the reason indicated above,
the
Transferring Party shall not be permitted to transfer its Interest
to the
third party without again complying with the procedures set forth
in
Articles 7.3(b) and (c).
|
|
(f)
|
The
Transferring Party shall provide the Non-Transferring Party with
a
duplicate of the executed transfer agreement with the transferee
within
fourteen (14) days after such agreement is
executed.
|
|
7.4
|
Transfer
to Affiliated Companies
|
Notwithstanding
the provisions of Article 7.3, in the event either Party wishes to transfer
all
or part of its Interest in the Company to an Affiliated Company (which for
purposes of this provision shall include any one or more of the POSITRON
Investors, provided that the shareholding percentage of such POSITRON
Investor(s) shall not be less than 20% of all outstanding shares of POSITRON),
such Party may do so upon the other Party's written consent thereto, which
shall
not be unreasonably withheld. The right of first refusal set out in Article
7.3
shall not apply in such case.
|
7.5
|
Continued
Implementation of Contract
|
Until
the
date of the Transfer of a Party's Interest, both Parties shall continue to
fully
and timely perform their obligations under this Contract.
|
7.6
|
Effect
of Transfer
|
The
Transfer of a Party's Interest shall not release such Party from its liability
to pay any sums of money accrued, due and payable to the other Party, or to
discharge its then-accrued and unfulfilled obligations including any liability
to the Company or the other Party in respect of any breach of this Contract
pursuant to Article 24 hereof.
-13-
|
8.
|
RESPONSIBILITIES
OF THE PARTIES
|
|
8.1
|
Responsibilities
of NMS:
|
Among
its
responsibilities under this Contract, NMS shall:
|
(a)
|
Make
its contributions to the registered capital of the Company in accordance
with the relevant provisions of this
Contract;
|
|
(b)
|
Enter
into, or cause its Affiliates to enter into, the Annexes hereto and
any
other contracts contemplated herein to which it or any of its Affiliates
is a party;
|
|
(c)
|
Assist
the Company in obtaining the Business License providing for a term
of
validity and scope of business acceptable to both
Parties;
|
|
(d)
|
Assist
the Company in handling the registration of the Company's right to
use the
Sites with all relevant government departments and handling all other
necessary procedures to ensure that the Company has the right to
use the
Sites for the Joint Venture Term;
|
|
(e)
|
Assist
the Company in obtaining the Chinese tax preferences, holidays and
concessions and other preferential tax treatment available to or
for the
Company;
|
|
(f)
|
Assist
the Company, if requested, in handling all licenses, approvals and
registrations for the importation of technology in accordance with
the
terms set forth in the Technologies Contribution Agreement and Software
Sub-License Agreement;
|
|
(g)
|
Assist
the Company with the smooth transfer of employees from NMS who are
recruited by the Company;
|
|
(h)
|
Supply
to the Company such CT products as the Company may require for its
Products at prices not greater than the lesser of (i) cost plus 8%,
or
(ii) the lowest price at which such products are sold to unaffiliated
parties; and
|
|
(i)
|
Handle
other matters entrusted to it by the Company and as agreed from time
to
time by NMS.
|
|
8.2
|
Responsibilities
of POSITRON:
|
Among
its
responsibilities under this Contract, POSITRON shall:
|
(a)
|
Make
its contributions to the registered capital of the Company in accordance
with the relevant provisions of this
Contract;
|
|
(b)
|
Enter
into the Annexes hereto and any other contracts contemplated herein
to
which it is a party;
|
|
(c)
|
Handle
export license and other procedures for the Company necessary for
the
export of technology from United States of America pursuant to the
Technologies Contribution Agreement and Software Sub -License
Agreement;
|
|
(d)
|
Assist
the Company to obtain the necessary approval from the relevant authorities
for the import of technology and the technology contribution of POSITRON
into the Company, including but not limited to providing the list
of such
technologies and relevant documents to the Company and relevant
authorities;
|
-14-
|
(e)
|
(e)
Assist the Company with the smooth transfer of one hardware engineer
to
the Company, and such engineer shall work full-time at the Company
for at
least one year;
|
|
(f)
|
Assist
the Company in obtaining the Business License providing for a term
of
validity and scope of business acceptable to both
Parties;
|
|
(g)
|
Make
great efforts to assist the Company to recruit competent employees
from
United States of America to work at the
Company;
|
|
(h)
|
Provide
certain training to selected employees of the Company, the expenses
for
which shall be borne by the Company;
and
|
|
(i)
|
Handle
other matters entrusted to it by the Company and agreed from time
to time
by POSITRON.
|
|
9.
|
LEASE
OF THE SITES AND BUILDING
|
|
9.1
|
The
sites to be determined.
|
|
10.
|
OWNERSHIP
AND LICENSING OF IPR
|
|
10.1
|
Licensing
of Trademark
|
Each
Party shall itself, or cause its relevant Affiliate to, license to the Company
on a royalty- free basis certain trademarks pursuant to the terms and conditions
set forth in the Trademark License Agreement.
|
10.2
|
Ownership
of Patents, Patent Rights and Proprietary
Information
|
| 10.2.1 |
Ownership
of Inversion of the Company during the term of this
Contract
|
Any
Invention of the Company shall be individually owned by the Company. Subjection
to the provisions of Section 10.2.3 below, the Company shall have the full
right
to make, have made, use, sell or otherwise dispose of products, methods and
processes incorporating any and all such Invention of the Company, and to grant
licenses or sublicenses under such Invention of the Company, without the consent
of and without any obligation to account to either Party. The Company shall
provide to the Parties full and complete information relating to each Invention
of the Company not less frequently than semi-annually and upon Dissolution
of
the Company.
-15-
| 10.2.2 |
Ownership
of Invention of the Company after Dissolution of the
Company.
|
After
the
Dissolution of the Company, all Inventions of the Company shall be jointly
owned
by POSITRON and NMS and each co-owner shall have an equal undivided right in
and
to such Invention of the Company and in and to any patents based on such
Invention of the Company and each joint owner of such Invention of the Company
shall have the nontransferable right to make, have made, use, sell or otherwise
dispose of products, methods and processes under any and all such Invention
of
the Company and to grant nonexclusive licenses or sublicenses under such
Invention of the Company, without the consent of and without any obligation
to
account to the other Party.
| 10.2.3 |
Ownership
of the Original Technologies after the Dissolution of the
Company
|
If
the
Dissolution of the Company shall take place within three (3) years from the
Establishment Date, then the Company shall assign back to POSITRON all the
Original Technologies contributed by POSITRON pursuant to the Technologies
Contribution Agreement subject to the then effective and applicable laws and
regulations of PRC.
If
the
Dissolution of the Company shall take place after three (3) years from the
Establishment Date, all the Original Technologies contributed by POSITRON
pursuant to the Technologies Contribution Agreement shall be jointly owned
by
NMS and POSITRON and each of the joint owners shall have an equal, undivided
ownership and interest in and to such Original Technologies; provided however,
that NMS shall have entered into an agreement with POSITRON to supply CT
equipment for a period of not less than five years at not more than the price
at
which such equipment is sold to the Company prior to dissolution. In this case,
both NMS and POSITRON shall have the right to conduct R&D and production
business relating to PET products.
|
11.
|
PURCHASE
OF MATERIALS
|
The
Company will purchase components, machinery and equipment from suppliers on
a
best value basis, acting always in accordance with market-oriented
principles.
|
12.
|
SALES
OF PRODUCTS
|
|
12.1
|
General
principle
|
Subject
to Clause 12.1 (a), the Company will sell Products manufactured by the Company
to both Parties for further resale in the PRC market and international market.
After the ramp-up period of the Company, each Party shall have rights to and
risk obligations for its capacity of Products required from the Company. The
Parties intend that the manufacturing capacity of the Company shall be shared
on
an equivalent basis to each Party's contribution to the registered capital
of
the Company, as measured by the manufacturing work and resources needed by
the
Company for the resulting Products. With due regard to the Product mix
requirements as specified in the Business Plans, the Business Plans shall
contain in detail the total capacity equivalent of the Company and the resulting
equivalent capacity for each Party as based on the manufacturing work and
resources needed. The Parties will each provide an industry common rolling
forecast for Products needed to the Company, in accordance with the purchase
and
sale agreements to be entered into between the Company and the
Parties.
-16-
Notwithstanding
the above, both Parties agree that (1) POSITRON shall have exclusive right
to
sell PET system of the Products in Canada and such products shall be sold under
its registered trademarks, (2) POSITRON shall have exclusive right to sell
PET/CT product of the Products in Canada and such products shall be sold under
the trademark of "Neusoft POSITRON", (3) POSITRON shall have exclusive right
to
sell PET system of the Products in the US and Mexico and such products shall
be
sold under its registered trademarks, (4) POSITRON and NMS shall have equal
right to sell PET/CT product of the Products in US and Mexico and such products
shall be sold under the trademark of "Neusoft Positron", (5) NMS shall have
the
exclusive right to sell the Products in China and the Products shall be sold
under its registered trademarks, and (6) NMS shall have the right to sell the
Products in the countries and regions worldwide except for China, Canada, US
and
Mexico, and the Products shall be sold through its sales channels under its
registered trademarks. Priorities for production shall be based on cash down
payments received from customers by the Parties. This Contract does not commit
either party to purchase any specific number of Products.
|
12.2
|
The
Products shall be sold to the Parties for further resale, and the
transfer
price of the Products shall be calculated as follows:
|
The
profit and transfer price for the Company's sale of the Products shall be
calculated according to the following formulas:
Profit
=
(A+B)x 8%
Transfer
price=A+B+Profit
|
(a)
|
"A"
means the cost of the raw
materials;
|
|
(b)
|
"B"
means other expenses, including but not limited to labour cost, cost
related to R&D, rental fee, depreciation and amortization, training
fee, travelling fee, public utility fee, custom duty and VAT,
administrative expenditures, financial cost, and other fees agreed
by the
Parties from time to time, with the exception of income
tax.
|
|
12.3
|
NMS's
Undertakings
|
NMS
undertakes that it will take the responsibility to sell one set of Product
within 6 six month after the Company's prototype machine obtains the
certification from the PRC State Food and Drug Administration (SFDA), and 5
sets
of Product during the next year following the foregoing 6-month
period.
|
13.
|
BOARD
OF DIRECTORS
|
|
13.1
|
Establishment
|
The
Board
of Directors of the Company shall be established by the Parties and shall hold
its first meeting within ninety (90) days of the Establishment
Date.
|
13.2
|
Composition
and Term
|
The
Board
of Directors shall be composed of five (5) Directors, of whom three (3) shall
be
appointed by NMS and two (2) by POSITRON. Unless the Parties otherwise agree
in
writing, the Chairman shall be appointed by NMS and POSITRON shall appoint
a
Vice Chairman. Each individual serving in the capacity of Director, Chairman
or
Vice Chairman shall be appointed for a term of four (4) years, and each shall
be
eligible for consecutive terms of office upon reappointment by the original
appointing Party. Any vacancy created in the Board of Directors shall be filled
by the Party which originally appointed the absent Director causing the vacancy.
Any Party may at any time remove for any reason any or all of the individuals
appointed by such Party as a Director and appoint in lieu thereof another
individual or individuals to serve the remainder of the relevant
term(s).
-17-
|
13.3
|
Legal
Representative
|
The
Chairman of the Board shall be the legal representative of the Company and
shall
act only in accordance with the specific decisions, resolutions and instructions
of the Board of Directors. Whenever the Chairman is unable to discharge his
duties, the Vice Chairman is authorized to represent the Company. Each Director,
in his capacity as a Director, shall serve in a non executive role.
|
13.4
|
Authority
|
The
Board
of Directors shall be the highest authority of the Company and shall make
decisions on all major and important matters of the Company. The rules of
procedure governing the Board of Directors and its powers and responsibilities
are as set forth in this Contract and the Articles of Association.
Notwithstanding the foregoing, all transactions between the Company and a Party
and/or its Affiliates shall be on an arm's length basis.
|
13.5
|
Personal
Liability of Directors
|
A
Director, including the Chairman and Vice Chairmen, shall not have personal
liability for action he undertakes on behalf of the Company within the scope
of
authority of this Contract, the Articles of Association or the Board resolutions
unless his or her action:
|
(a)
|
is
outside the scope of the approval or authorization given to him by
this
Contract or the Board of Directors' resolution ;
or
|
|
(b)
|
is
in breach of Articles 59 to 63 of the Company Law of
PRC.
|
Any
Director, including the Chairman and Vice Chairmen, acting in violation of
this
Contract or Board of Director's resolutions shall indemnify and hold harmless
the Company against all losses caused to or liabilities and expenses incurred
by
the Company. The Company shall, to the extent permitted by law, indemnify any
Director for damages or losses incurred in good faith by such Director in the
performance of his or her obligations.
|
13.6
|
Unanimous
Approval
|
Resolutions
of the Board of Directors involving the following matters shall be adopted
only
upon the unanimous affirmative vote of all five (5) Directors (whether present
in person, by conference phone or by proxy) at a duly convened
meeting:
|
(a)
|
Amendment
of the Articles of Association;
|
-18-
|
(b)
|
Increase,
reduction or assignment of registered capital and the adjustment
of each
Party's share of interest in the registered capital of the
Company;
|
|
(c)
|
Merger
or consolidation of the Company with any other economic organization
or
reorganization of the Company; and
|
|
(d)
|
Extension,
termination, Liquidation or dissolution of the
Company.
|
In
the
event not all five (5) Directors are present (whether in person, by conference
phone or by proxy) in a meeting where any of the foregoing matters is on the
agenda, such matter(s) will be discussed at the same location and time fourteen
(14) days later. If, at the reconvened Board meeting, still not all five (5)
Directors are present (whether present in person, by conference phone or by
proxy), then any resolution on the foregoing matters that is agreed upon by
all
of the Directors present shall be circulated in writing to the Directors that
were not present. Failure to react in writing by such Director(s) within thirty
(30) days after receipt of such resolution shall be deemed to constitute
agreement to such resolution by such Director.
|
13.7
|
Other
Decisions of the Board
|
Except
for those matters set forth in Article 13.6, resolutions of the Board of
Directors shall be adopted by the affirmative vote of not less than three (3)
Directors for all other matters of the Company.
|
13.8
|
Deadlock
|
If
no
five (5) Directors are able to collectively agree to vote in favour or against
a
resolution on any matters set forth in Article 13.6, the Board of Directors
will
be deemed to be in deadlock ("Deadlock") and the Chairman shall not have a
casting vote. Upon the occurrence of Deadlock, the General Manager shall prepare
and deliver a full report regarding the unsuccessfully resolved matter to the
Chairman of NMS and the Chairman of POSITRON, or such other person each Party
may nominate in writing, within thirty (30) days of the date of Deadlock. The
representatives of the Parties shall have an additional thirty (30) days from
the date of receipt of such report or such longer period as they may agree
to
successfully conciliate such matter. If the representatives of the Parties
do
not successfully resolve such matter during such relevant period,
then:
|
(a)
|
if
neither Party wishes to continue the business of the Company as a
going
concern, the provisions of Article 22.1(e) shall apply;
or
|
|
(b)
|
if
only one (1) Party desires to carry on the business of the Company
as a
going concern, the other Party may sell its Interest to the Party
desiring
to carry on the business of the Company in accordance with Article
7.4;
or
|
|
(c)
|
if
both Parties wish to continue the business of the Company as a going
concern, the provisions of Article 22.2(b) shall apply;
or
|
|
(d)
|
failing
all of the foregoing, the matter shall be submitted for resolution
in
accordance with Article 28 of this
Contract.
|
-19-
Both
Parties shall continue to perform their obligations under this Contract during
the period of Deadlock.
|
13.9
|
Board
Meetings
|
The
regular meeting of the Board of Directors shall in principle be held twice
a
year. Meetings of the Board of Directors shall normally be held at the
registered address of the Company, but may be held at any other place as may
be
jointly selected by the Chairman and the Vice Chairman.
|
13.10
|
Interim
Board Meeting
|
Within
three (3) days after the receipt of a proposal by at least two- fifths (2/5)
of
the Directors requesting that an interim Board meeting be held, either the
Chairman, or in his absence or failure to act, the Vice Chairman, of the Board
shall send written notice calling an interim Board meeting, which meeting must
be held no later than thirty (30) days after receipt of such
proposal.
|
13.11
|
Notice
of Meetings
|
The
Chairman, or in his absence or failure to act, the Vice Chairman, shall send
written notice at least thirty (30) days prior to any Board meeting stating
the
specific agenda, time and place of the meeting. Such notice may be waived by
the
unanimous consent of all Directors attending the meeting in person or by proxy.
A Board meeting shall be convened not less than thirty (30) days or more than
sixty (60) days from the date of the notice.
|
13.12
|
Attendance
|
A
Director may attend a Board meeting in person, by conference telephone or
designate another person by proxy and vote in his place. Such designation shall
be in writing, shall be signed by the Director, and shall identify the meeting
or meetings at which the person may act as a proxy and any instructions that
may
be applicable to the proxy. A Director may appoint another Director as his
proxy. A person acting as a proxy may do so for more than one
Director.
|
13.13
|
Quorum
for Meetings
|
The
quorum for a Board meeting shall consist of four-fifths (4/5) of the Directors
(i.e. four (4) Directors) present in person or by conference telephone or by
proxy. However, if proper notice to convene a Board meeting has been given
and
if the Directors appointed by a Party fail to attend the meeting by themselves
or by proxy or by conference telephone, and therefore a quorum is not present
in
accordance with the preceding sentence, such Board meeting shall be adjourned
and reconvened at the same location and time fourteen (14) days later. If,
at
the reconvened Board meeting, these Directors still fail to attend the Board
meeting by themselves or by proxy or by conference telephone, then the person
presiding over the reconvened Board meeting shall be deemed to be appointed
by
these Directors as their representatives to attend the Board meeting and vote
in
respect of resolutions (the proposal of which shall have already been set out
in
the enclosures of the notice of the Board meeting). Resolutions passed in such
manner shall also have full legal effect.
-20-
|
13.14
|
Voting
|
The
Directors may vote on any matters either by attending meetings in person, by
telephonic conference or by proxy. Each Director shall have one vote. Matters
not requiring a unanimous vote by the Board of Directors shall be decided by
a
simple majority vote of the Directors at a meeting at which a quorum is present.
No Director shall have a casting vote.
|
13.15
|
Written
Consent
|
The
Board
of Directors may conduct any business and make decisions and take actions that
could have been otherwise duly taken pursuant to a Board meeting by means of
a
unanimous written consent in lieu of a meeting.
|
13.16
|
Compensation
and Expenses
|
The
Company shall not pay any fee, remuneration or subsidy to any Director for
attendance at a Board meeting. The expenses incurred by the Directors shall
be
for the account of the respective appointing Party.
|
13.17
|
Minutes
|
Minutes
shall be kept for each Board meeting and signed by all Directors present at
the
Board meeting in person or by proxy. In order to facilitate the smooth conduct
of Board meetings, the Chairman shall appoint a Company Secretary for the
purpose of the Board meeting. The duties of such Company Secretary shall be
to
take detailed minutes of the Board meeting, procure the proper signatures for
the adoption of such minutes, translate or arrange for the translation of
documents and dispatch documents relating to the Board meeting to the Directors.
Minutes of the Board meeting shall be maintained in both Chinese and English.
Copies of the minutes in both Chinese and English languages shall be sent to
NMS
and POSITRON at the addresses set forth in Article 29.5.
|
13.18
|
Further
Policies and Procedures
|
The
Company shall abide by any other policies and procedures adopted by the Board.
The Parties shall take all appropriate action to cause the Board of Directors
to
adopt standards of conduct and business practices in conformity with the laws
and regulations of the PRC.
|
14.
|
MANAGEMENT
ORGANIZATION
|
|
14.1
|
Establishment
|
|
(a)
|
The
Board of Directors of the Company shall establish a management
organization comprised of Management Personnel who shall be in charge
of
the day-to-day operations and management of the Company. The management
organization shall be headed by one (1) General Manager. The General
Manager shall be nominated by NMS. The Company shall initially have
the
following managerial departments: R&D and Manufacturing (including
Sourcing and Logistics); Finance and Accounting; Administration (including
Human Resources and Government Relations, etc.). The Company's initial
Management Personnel shall be as follows: one (1) Administration
Manager,
one (1) Finance and Accounting Manager and one (1) R&D and
Manufacturing Manager as nominated by NMS; as well as one (1) Deputy
R&D and Manufacturing Manager, one (1) Deputy Finance and Accounting
Manager as nominated by POSITRON. The above management personnel
shall be
nominated by the Parties, but shall only be appointed or removed
by the
Board. Without prejudice to the foregoing, the actual management
organization of the Company may deviate from time to time from the
positions set out above, based on mutual consent of the
Parties.
|
-21-
|
(b)
|
Each
Party agrees to cause the Directors appointed by it to approve all
persons
nominated to Management Personnel positions; provided, however, that
each
Party may veto the nomination of any candidate for a Management Personnel
position if such candidate fails to meet the criteria ascribed to
the
position for which the candidate is nominated as may be provided
in the
Articles of Association or otherwise determined by the General Manager
and
the vetoing Party provides reasonable evidence of such failure. Each
individual serving in the capacity of Management Personnel shall
be
appointed for a term of two (2) years, and each shall be eligible
for
consecutive terms of office if re-nominated by the original nominating
Party. If it becomes necessary, due to dismissal or resignation,
to
replace the individual serving in the capacity of Management Personnel,
the Party that originally nominated such individual shall nominate
a
replacement to serve the remainder of the relevant
term.
|
|
(c)
|
The
duties of the General Manager shall consist of carrying out the decisions
of the Board of Directors and organizing and directing the day-to-day
operations and management of the
Company.
|
|
(d)
|
Any
Management Personnel are forbidden from concurrently serving or working
in
any other company, unit, entity or organization whatsoever unless
expressly approved by the Board.
|
|
14.2
|
Employment
|
Each
Management Personnel shall execute a Labour Contract with the Company. The
specific powers and responsibilities of Management Personnel shall be prescribed
in the relevant provisions of the Articles of Association of the Company. No
Management Personnel shall have any personal liability for any acts performed
in
good faith, in the normal course of their employment and within the scope of
activities permitted to be engaged in by such Management Personnel as set forth
in this Contract and the Articles of Association.
Each
Management Personnel (other than the General Manager) shall receive his
assignment from and shall report to the General Manager and shall be subject
to
removal at any time by the Board. In the event a manager is removed, the Party
that originally nominated such manager shall nominate another individual for
such position. The General Manager shall have the right to appoint an interim
manager if such Party fails to nominate another individual within thirty (30)
days of such individual's removal.
-22-
|
14.3
|
Compensation
|
Matters
such as salaries, wages, subsidies, benefits, insurance, allowances, rewards
and
other compensation matters of Management Personnel shall be stipulated in the
Labour Contract between the Company and such Management Personnel. The Parties
acknowledge that Management Personnel (including the expatriate Seconded
Personnel) shall be compensated based on standards of the territory where the
Company is located.
|
14.4
|
Confidentiality
|
Each
Management Personnel shall, as a condition to employment by the Company, execute
an agreement in form and substance acceptable to the General Manager which
shall
contain provisions prohibiting the disclosure of confidential information
obtained during the course of employment with the Company and restricting the
ability of such Management Personnel to compete with the business of the
Company.
|
15.
|
LABOUR
MANAGEMENT
|
|
15.1
|
Enterprise
Autonomy
|
The
Company shall have all possible autonomy under the laws and regulations of
the
PRC concerning the recruitment, employment, compensation, designation of welfare
benefits, procurement of labour insurance, promotion, discipline and dismissal
of Working Personnel. The labour policies of the Company shall be determined
in
accordance with applicable PRC labour laws and regulations and the relevant
regulations of Liaoning Province and Shenyang Municipality on labour management
in foreign investment enterprises, and shall further be guided by the NMS HR
principles in place before the Effective Date of this Contract. Labour union
matters shall be handled in accordance with the applicable labour union law
at
such time.
|
15.2
|
Employment
|
The
qualification and number of Working Personnel shall be determined in accordance
with the operating needs of the Company as determined by the General Manager,
subject to the guidance and instructions from the Board of Directors. Each
Working Personnel shall, as a condition to employment by the Company, execute
a
Labour Contract with the Company, which shall contain provisions prohibiting
the
disclosure of confidential information obtained during the course of employment
with the Company and restricting the ability of such Working Personnel to
compete with the Company. Working Personnel shall observe the various rules
and
regulations of the business of the Company in fulfilling their respective tasks.
The General Manager may, subject to the guidance of the HR Manager, subject
further to the General Business Principles of POSITRON, and according to the
degree of seriousness of the case, give warnings, record demerits, deduct wages,
dismiss, or otherwise remove any Working Personnel who has violated the terms
of
his or her Labour Contract or the rules, regulations or labour discipline of
the
Company. The HR Manager shall serve as compliance officer of the Company under
the General Business Principles.
-23-
|
15.3
|
Compensation
|
Matters
such as compensation, wages, subsidies, benefits, insurance, allowances,
rewards, and other compensation matters of Working Personnel shall be stipulated
in the Labour Contract between the Company and each Working Personnel, in
addition to provisions prohibiting each Working Personnel to disclose
information obtained during the course of employment with the Company, which
shall also be included in each such Labour Contract.
|
16.
|
ANNUAL
OPERATING PLANS AND BUDGETS
|
|
16.1
|
Preparation
|
The
General Manager shall be responsible for the preparation of the annual operating
plans and budgets of the Company. The operating plan and budget for the next
fiscal year shall be submitted to the Board of Directors after sign-off of
the
General Manager for examination and approval prior to November 1 of each year
and shall include detailed plans and projections regarding:
|
(a)
|
procurement
of materials, machinery, equipment and other capital expenditures
of the
Company;
|
|
(b)
|
plans
and policies with respect to the manufacture of the
Products;
|
|
(c)
|
estimated
revenues, expenditures and profits of the
Company;
|
|
(d)
|
staffing
levels and plans for training personnel of the
Company;
|
|
(e)
|
R&D,
Product roadmap, projects and investment
plans;
|
|
(f)
|
annual
production and sales plan agreements with the different local and
international sales organizations.
|
|
16.2
|
Examination
and Implementation
|
The
Board
of Directors shall complete its examination and approval of each annual
operating plan and budget for the next fiscal year prior to the end of December
31 of each year. The General Manager shall be responsible for the implementation
of the annual operating plan and budget as approved by the Board.
|
16.3
|
R&D
Budget
|
The
Board
of Directors shall ensure that an adequate amount of R&D funding shall be
made available as set out in, and in order to fulfill, the Business Plan,
ensuring sustainable growth, efficiency improvement as well as an appropriate
quality level of the Products.
-24-
|
17.
|
TAXATION,
THREE FUNDS AND PROFIT DISTRIBUTION
|
|
17.1
|
Tax
Treatment
|
The
Company shall pay taxes in accordance with relevant Chinese laws and regulations
and shall enjoy all preferential tax and customs treatment available to it
under
the PRC law.
|
17.2
|
Three
Funds
|
After
fully making up accumulated losses of previous years, if any, and payment of
taxes in accordance with the relevant laws and regulations of the PRC, the
Company shall allocate a percentage of its annual after-tax profit for
contribution towards the Three Funds. The amount to be allocated to the Three
Funds shall be decided by the Board of Directors on a yearly basis in accordance
with the financial performance of the Company, in light of the relevant laws
and
regulations of the PRC.
|
17.3
|
Profit
Distribution
|
|
(a)
|
After
paying taxes in accordance with the law and making contributions
to the
Three Funds, the remaining earnings of the Company shall be available
for
dividend distribution to the Parties. The General Manager shall recommend
a dividend distribution plan to the Board of Directors within the
first
three (3) months following the end of each fiscal year of the Company
for
the Board's consideration and approval or modification. In his or
her
recommendation, the General Manager shall consider that the Company
has
sufficient funds on hand to pay the dividends and meet its approved
capital expenditure budget and working capital requirement for the
current
budget year. The Company shall not distribute dividends unless the
losses
of previous fiscal year(s) have been fully made up. Remaining
undistributed dividend from previous years may be distributed together
with that of the current year and the Board of Directors may authorise
the
payment of dividends from undistributed dividends from previous years
at
any time.
|
|
(b)
|
Dividends
shall be distributed to the Parties in proportion to each Party's
holding
of the registered capital of the Company at the time of the distribution.
Payment of dividend distributions to POSITRON shall be in United
States
Dollars and POSITRONS right to receive previous declared dividends
shall
not lapse due to unavailability of Foreign Exchange. The rate of
exchange
for all Renminbi amounts that are required to be converted to United
States Dollars for payment of such dividends shall be the rate announced
by the People's Bank of China for the conversion from Renminbi to
United
States Dollars on the date that dividends are
declared.
|
-25-
|
18.
|
FINANCIAL
AFFAIRS AND ACCOUNTING
|
|
18.1
|
Accounting
System
|
|
(a)
|
The
Company shall maintain its accounts in accordance with officially
promulgated PRC laws and regulations and the provisions of this Contract
and the Articles of Association and in a manner sufficient to satisfy
the
generally accepted accounting principles and the financial and tax
reporting requirements of both Parties. The Finance and Accounting
Manager, under the supervision of the General Manager, shall establish
the
accounting system and procedures for the
Company.
|
|
(b)
|
The
fiscal year of the Company shall start on January 1 of the year and
end on
December 31 of the same year. The first fiscal year of the Company
shall
commence on the Establishment Date and end on December 31 of the
same
year. The last fiscal year of the Company shall start on January
1 of the
year of termination and end on the date of
termination.
|
|
18.2
|
Books
and Records
|
The
Company shall keep true and correct records and accounts in accordance with
applicable PRC accounting laws and regulations.
|
18.3
|
Inspection
of Books and Records
|
Each
Party shall have the right to examine and copy all books of account, records,
vouchers, contracts and documents of any kind that are necessary or appropriate
for monitoring the financial performance of the Company. Each Party may make
such examination and copies during the Company's normal business hours, provided
that such examination and copying does not unreasonably interfere with the
business operations of the Company. Each Party may exercise such rights through
its agent or employee or by an independent accounting firm designated by the
Party at the cost and expense of such Party.
|
18.4
|
Accounting
Unit
|
The
currency of accounts of the Company shall be determined by the Board of
Directors of the Company. When foreign currency transactions take place, the
foreign currency amount will be translated into the reporting currency for
recording purposes. Any increase or decrease in the balance of accounts relating
to foreign currency transactions shall be translated into the currency of
account in accordance with the official Foreign Exchange rate announced by
the
People's Bank of China on the transaction date or on the first day of the month
when the transaction takes place.
-26-
|
18.5
|
Reports
|
The
Company shall prepare and provide to the Parties:
|
(a)
|
Within
ninety (90) days after the last day of each fiscal year, the balance
sheet
of the Company as of the end of such fiscal year and the related
profit
and loss statement and statement of cash flows for the fiscal year
then
ended, in each case audited as provided
below.
|
|
(b)
|
Within
thirty (30) days after the last day of each financial quarter, the
unaudited balance sheet of the Company as of the end of such quarter
and
the related profit and loss statement (for such quarter and for the
year-to-date).
|
|
(c)
|
Within
thirty (30) days after the last day of each month, (i) a profit and
loss
statement for such month; and (ii) a forecast/outlook for the remainder
of
the current fiscal quarter as well as the next fiscal quarter, which
shall
include without limitation the number of personnel, revenue, cash
balance
and expenses.
|
|
18.6
|
Audit
|
An
independent and reputable international accounting firm licensed in China and
approved by the Board shall be engaged by the Company as its auditor to examine
and verify the annual financial statements of the Company and shall submit
the
audit report to the Board and the General Manager. Either Party shall also
have
the right not more than once in each fiscal year, to appoint either its own
internal audit department or an accountant registered in China or abroad to
audit the accounts of the Company. If the results of any such audit are
significantly different from that conducted by the Company's auditors and are
accepted by the Board, the expense of the audit shall be borne by the Company,
and re-audits may take place by either Party more frequently than once per
fiscal year until there is no significant difference anymore. The Company will
permit such accountant to have access to the Company's books and records and
Management Personnel and will provide such accountant with office space and
all
other reasonable facilities to enable the accountant to carry out the
audit.
|
18.7
|
Provision
of Returns
|
The
Company shall provide, without charge, to any Party that may so request a copy
of each tax return and report that it is required to file with any governmental
entity in sufficient time prior to such filing to permit its review by such
Party prior to filing.
|
19.
|
BANK
ACCOUNTS AND FOREIGN EXCHANGE
|
|
19.1
|
Bank
Accounts
|
The
Company shall open RMB deposit accounts and Foreign Exchange deposit accounts
with authorized banks in China. The Company may also open Foreign Exchange
deposit accounts with foreign banks outside China as designated by the Board
of
Directors subject to approval by the relevant government
authorities.
|
19.2
|
Foreign
Exchange Requirements of the
Company
|
All
of
the Company's Foreign Exchange receipts shall be deposited in its Foreign
Exchange accounts and all the payments in Foreign Exchange shall be made from
its Foreign Exchange deposit accounts. In addition to payment of dividend
distributions to POSITRON, other payments to be made by the Company to POSITRON
and/or to any expatriate employees of the Company shall be made in United States
Dollars. The Company shall, according to applicable laws and regulations of
PRC,
remit all the money to be paid by the Company to POSITRON, including the money
to be paid upon the dissolution of the Company, to the account designated by
POSITRON.
-27-
|
20.
|
CONFIDENTIALITY
AND NON-COMPETITION
|
|
20.1
|
Confidentiality
|
|
(a)
|
Each
of the Parties acknowledges and agrees that the discharge of its
obligations under this Contract and the contracts and documents referred
to herein to which it is a party will involve the disclosure of
Confidential Information.
|
|
(b)
|
The
Parties and their Affiliates shall use the Confidential Information
only
for the purposes specified in this Contract, the Annexes and the
other
contracts and documents contemplated, herein and therein to which
it is a
party, and shall not disclose any Confidential Information to third
parties without the prior written consent of the Party providing
such
Confidential Information; provided, however, (i) that a Party may
be
permitted to disc lose Confidential Information received by it to
its
Affiliate(s) when such disclosure is necessary for such Party to
carry out
its obligations under this Contract, the Articles of Association
or the
other contracts referred to herein upon the execution of a non-disclosure
agreement between such Affiliate(s) and the Party providing the
Confidential Information, and (ii) that either Party may disclose
certain
required Confidential Information to the relevant stock exchange
authorities in the event this is required under applicable regulations,
provided, however, that such Party shall always provide timely and
detailed written notice to the other Party in such event. Each Party
warrants the full adherence of its Affiliates to these confidentiality
obligations, and hereby fully and unconditionally guarantees such
adherence by its Affiliates.
|
|
(c)
|
The
Company, the Parties and their respective Affiliates that receive
Confidential Information shall make such Confidential Information
available only to those of their directors, managers and personnel
whose
duties necessitate familiarity with such Confidential Information
and
shall cause such directors, managers and personnel also to comply
with the
confidentiality obligations set forth in Article
20.1(b).
|
|
(d)
|
The
confidentiality obligations set forth in this Article 20.1 shall
be
maintained during the Joint Venture Term and for an additional period
of
five (5) years after the termination of this Contract; subject to
the
rights of the Parties following Dissolution or termination as provided
in
this Contract.
|
|
20.2
|
Non-Competition
|
For
a
period of 5 years from the Effective Date of this Contract, neither Party
hereto, nor any of their Affiliates, will have another joint venture or other
form of cooperation with a third party with respect to the development,
manufacturing or procurement of finished products which are the same or similar
to the Products; provided, however, in the event that either Party shall
determine in reasonable good faith that the Company has failed its purpose
of
supplying the Parties with the Products in accordance with the Business Plan,
then such Party, by notice to the other, may terminate this provision; provided
further, that this provision shall terminate upon termination of this Contract
pursuant to Article 22 or Article 23.
-28-
|
21.
|
DURATION
OF THE COMPANY
|
The
Joint
Venture Term shall commence on the Establishment Date and shall continue for
an
initial period of ten (10) years or until terminated pursuant to Article 22
hereof. Not less than two (2) years prior to the expiration of the initial
period of ten (10) years or any subsequent extended period, the Parties or
their
approved successors shall commence discussions on the extension of the period
of
this Contract. However, if a written agreement for the extension of the Joint
Venture Term is not signed between the parties twenty-four (24) months prior
to
the expiration of the then current period of existence (or by such later date
as
the parties may agree and applicable PRC law then permits), this Contract shall
end upon expiry of such current period of existence.
|
22.
|
EARLY
TERMINATION
|
|
22.1
|
Triggering
Events
|
This
Contract may be terminated in the event that any of the conditions or events
set
forth below occurs:
|
(a)
|
Either
Party fails to make its contributions to the registered capital of
the
Company on the Contribution Date and such failure continues for a
period
of more than ninety (90) days and is not waived by the other Party.
In
such case, either Party may give notice of
termination.
|
|
(b)
|
There
occurs a material breach of this Contract and such breach is not
cured by
the breaching Party within sixty (60) days after receipt of written
notice
of the breach from the non-breaching Party. In such case, the
non-breaching Party may give notice of
termination.
|
|
(c)
|
Any
Party or its relevant Affiliate fails to perform any of its material
obligations under the Annexes or any other contract referred to herein
if,
in the reasonable opinion of the non-breaching Party, such non-performance
creates a material risk of loss to such non-breaching Party or the
Company
and such risk is not cured by the breaching party within sixty (60)
days
after receipt of notice from the non breaching Party. In such case,
the
non-breaching Party may give notice of
termination.
|
|
(d)
|
The
Company sustains serious losses for three (3) consecutive years or
the
Company is unable to attain its business goals and, after consultation,
the Parties are unable to agree on a Business Plan to improve the
economic
situation of the Company. In such case, either Party may give notice
of
termination.
|
-29-
|
(e)
|
Deadlock
occurs and neither Party wishes to continue the business of the Company
as
a going concern. In such case, either Party may give notice of
termination.
|
|
(f)
|
Total
or partial performance of this Contract is prevented by an Event
of Force
Majeure lasting for more than one hundred and twenty (120) consecutive
days and, after consultation, the Parties are unable to agree on
a method
to perform this Contract. In such case, either Party may give notice
of
termination, provided, however, that in the case of partial performance
being prevented, such partial performance is material to the
Company.
|
|
(g)
|
The
Parties mutually agree to terminate this Contract and agree on the
terms
for the dissolution of the Company. In such case, the Company and
its
assets shall be dealt with in accordance with such agreement and
applicable law.
|
|
22.2
|
Purchase
of the Company as a Going
Concern
|
|
(a)
|
In
the event that (1) one (1) Party is the subject of proceedings for
Liquidation or dissolution or ceases to carry on business, or (2)
notice
of termination is given by a Party pursuant to Article 22.1(b) or
(c), the
remaining or non-breaching Party may elect to purchase the Company
as a
going concern in accordance with the procedures set forth
below:
|
|
(b)
|
Each
Party shall, at its own cost, engage a reputable, independent and
qualified appraiser to appraise the Company as a going concern with
the
same instruction going to the two appraisers. The average of the
two
appraisals shall be considered the fair market value ("Fair Market
Value")
of the Company, provided that, if only one Party engages such an
appraiser, the purchase price shall be based on that one appraiser's
valuation. In the event the appraisals (or, in the case of ranges
of
values, the averages of the two ranges) deviate more than 100% (e.g.
200-420) then the following applies: A third appraiser, being a top
5
internationally reputed investment bank, will be appointed by the
Parties
at the cost of the Company, which investment bank must choose within
thirty (30) days between one and the other appraisal, and such choice
will
constitute the binding Fair Market
Value.
|
|
(i)
|
The
purchasing Party shall purchase the Interest of the selling Party
in the
Company for a purchase price equal to the percentage interest that
such
selling Party then currently holds in the registered capital of the
Company multiplied by the Fair Market Value of the Company; provided
however, that the purchase price paid to POSITRON in the event NMS
is the
purchasing Party shall be not less than USD
$20,000,000.
|
-30-
|
(c)
|
After
determination of the purchase price, the Parties shall execute a
purchase
and sale agreement and shall use their best efforts to secure, within
thirty (30) days of the execution of such purchase and sale agreement,
all
necessary governmental approvals required to give effect to such
purchase
and sale agreement. The closing of such purchase and sale shall occur
within fifteen (15) days following approval of the purchase and sale
agreement; provided, however, that the selling Party shall not be
required
to complete any sale pursuant to this Article 22.2 unless the entire
purchase price is paid in the lawful currency of, or a currency which
may
be freely converted and remitted to, the jurisdiction of organization
of
the selling Party.
|
|
(i)
|
After
approval of the purchase and sale agreement has been obtained and
the
purchase price has been paid in accordance with (iii) above, the
Parties
shall terminate this Contract, the Annexes and all of the contracts
contemplated herein by a writing executed by the duly authorized
representative of each of the
Parties.
|
|
(d)
|
In
the event that Deadlock occurs and both Parties wish to continue
the
business of the Company as a going concern, the Fair Market Value
shall be
determined pursuant to Article 22.2(a) (i) and an auction shall be
conducted by the Company's auditor to determine which Party shall
sell its
Interest to the other Party. During such auction, each Party shall
bid
openly for the purchase of the other Party's Interest, and each Party
may
repeatedly place a higher bid than the other Party until the highest
bid
has been made. No bid shall be lower than the applicable percentage
held
by the selling Party in the registered capital of the Company multiplied
by the Fair Market Value of the Company. The Party making the highest
bid
(per percentage interest) shall be entitled to purchase the Interest
of
the other Party. After determination of the final purchase price,
the
procedures set forth in Articles 22.2(a) (iii) and (iv) shall apply.
Notwithstanding the foregoing, any purchase price paid to POSITRON
in the
event NMS is the purchasing Party shall be not less than USD
$20,000,000.
|
|
(e)
|
Both
Parties shall continue to perform their obligations under this Contract
prior to completion of Article 22.2(a)(iv)
above.
|
|
23.
|
LIQUIDATION
AND DISSOLUTION
|
|
23.1
|
Liquidation
|
Upon
the
adoption of a unanimous Board resolution to terminate this Contract pursuant
to
Articles 22.1(a), (d), (e), (f) or (g) and approval by the Examination and
Approval Authority to dissolve the Company, the Parties shall cause the
Directors appointed by them to adopt a resolution to liquidate the Company
and
establish a Liquidation Committee. The composition, powers and functions of
the
Liquidation Committee, formulation of Liquidation procedures, and payment of
Liquidation proceeds shall be as set forth in the Articles of
Association.
|
23.2
|
Effect
of Dissolution or Sale as a Going
Concern
|
The
dissolution of the Company or sale of the Company as a going concern, shall
not
release a Party from its liability to pay any sums of money accrued, due and
payable to the other Party, or to discharge its then-accrued and unfulfilled
obligations including any liability to the Company or the other Party in respect
of any breach of this Contract pursuant to Article 24 hereof.
-31-
|
23.3
|
Termination
|
After
the
Liquidation of the Company is completed and the Company has been effectively
dissolved, the Parties shall terminate this Contract, the Articles of
Association and all of the contracts contemplated herein by a writing executed
by the duly authorized representative of each of the Parties.
|
24.
|
LIABILITY
FOR BREACH OF CONTRACT
|
|
24.1
|
Breach
of Contract
|
If
a
Party fails to perform any of its material obligations under this Contract,
or
if a representation or warranty made by a Party under this Contract is untrue
or
materially inaccurate, the Party shall be deemed to have breached this
Contract.
|
24.2
|
Failure
to Pay Capital Contributions
|
Provided
that each of the conditions in Article 6.4(a) has either been expressly
fulfilled or waived by the Parties, should one of the Parties fail to pay any
portion of its contribution to the registered capital of the Company at the
time
and in the amounts stipulated in Article 6 of this Contract, such Party shall
be
deemed to be in breach of the Contract and, in addition to any liability it
may
incur for such breach, such Party shall pay to the Company a late contribution
penalty at a monthly rate equal to the then applicable shortest-term lending
rate published by the People's Bank of China for United States Dollar loans
on
the amount of the contribution due and unpaid for as long as such contribution
is due and unpaid plus three percent (3%).
|
24.3
|
Continued
Implementation of Contract
|
During
the period of breach, the Parties shall in all other respects continue their
implementation of this Contract.
|
25.
|
INSURANCE
|
The
Company shall, at its own cost and expense and at all times during the operation
of the Company, procure and maintain full and adequate insurance coverage in
a
manner prudent and advisable for the Company. The relevant insurance policies
may be obtained from any insurance company authorized to provide such policies
in the PRC. The types of insurance (which shall include product liability
insurance) and the value, duration and denomination of the currency of the
premiums and insurance proceeds shall be determined by the Board of Directors
based upon the recommendation of the General Manager based on the practices
of
similar business in other countries and the actual circumstances in the
PRC.
|
26.
|
FORCE
MAJEURE
|
|
26.1
|
Performance
of Obligations
|
If
any
Party is prevented from performing any of its obligations excluding the payment
of monies due hereunder which payment obligations are hereby specifically
stipulated to be outside the scope of the definition of Event of Force Majeure
under this Contract due to an Event of Force Majeure, the time for performance
of the obligations under this Contract specifically prevented from performance
by such Event of Force Majeure shall be extended by a period equal to the period
of delay caused by such Event of Force Majeure. A Party claiming inability
to
perform due to an Event of Force Majeure shall take appropriate means to
minimize or remove the effects of the Event of Force Majeure and, within the
shortest possible time, attempt to resume performance of the obligation(s)
affected by the Event of Force Majeure. If an Event of Force Majeure occurs,
no
Party shall be responsible for any damage, increased costs or loss which the
other Parties may sustain by reason of such a failure or delay of performance,
and such failure or delay shall not be deemed a breach of this Contract. All
other obligations under this Contract and the time for performance thereof
shall
remain unaffected.
-32-
|
26.2
|
Notice
|
The
affected Party shall immediately notify the other Party of the occurrence of
any
Event of Force Majeure in accordance with Article 29.5 and shall provide
available evidence thereof. Should the delay caused by any Event of Force
Majeure continue for more than ninety (90) consecutive days, the Parties shall
settle the issue of further performance of this Contract through friendly
negotiations or in accordance with Article 22.1(f).
|
26.3
|
Continued
Implementation of Contract
|
During
the period of an Event of Force Majeure, the Parties shall in all other respects
continue their implementation of this Contract.
|
27.
|
APPLICABLE
LAW
|
|
27.1
|
Governing
Law
|
The
laws
or regulations of the PRC which are officially published and publicly available
shall apply to and govern the formation, validity, interpretation and
implementation of this Contract.
|
28.
|
DISPUTE
RESOLUTION
|
|
28.1
|
Arbitration
|
|
(a)
|
Any
dispute arising from, out of or in connection with this Contract
shall be
settled through friendly consultations between the Parties. Such
consultations shall begin immediately after a Party has delivered
to the
other Party a written request for such consultation. If within forty-five
(45) days following the date on which such notice is given, the dispute
cannot be settled through consultations, the dispute shall, upon
the
request of any Party with notice to the other Party, be submitted
to
arbitration at Singapore International Arbitration Center in
Singapore.
|
-33-
|
(b)
|
There
shall be three (3) arbitrators, who shall be appointed in accordance
with
the Rules of Arbitration of the United Nations Commission on International
Trade Law ("UNCITRAL") which are effective at that
time.
|
|
(c)
|
The
arbitration proceedings shall be conducted in Chinese. The arbitration
tribunal shall apply the Rules of UNCITRAL which are effective at
that
time.
|
|
(d)
|
Each
Party shall cooperate with the other Party in making full disclosure
of
and providing complete access to all information and documents requested
by the other Party in connection with such proceedings, subject only
to
any confidentiality obligations binding on such
Party.
|
|
(e)
|
The
arbitral award shall be final and binding upon all Parties, not subject
to
any appeal, and shall deal with the question of costs of arbitration
and
all matters related thereto.
|
|
(f)
|
Judgment
upon the award rendered by the arbitration may be entered into any
court
having jurisdiction, or application may be made to such court for
a
judicial recognition of the award or any order of enforcement
thereof.
|
|
28.2
|
Continued
Implementation of Contract
|
During
the period when a dispute is being resolved, the Parties shall in all other
respects continue their implementation of this Contract.
|
29.
|
MISCELLANEOUS
|
|
29.1
|
Language
|
This
Contract is executed in English and Chinese in eight (8) original counterparts
in each language. Both language versions shall have equal validity. In case
of
any disparity, the Chinese version shall govern.
|
29.2
|
Entire
Agreement
|
This
Contract and the other contracts contemplated herein constitute the entire
agreement among NMS and POSITRON with respect to the subject matters set forth
herein and therein and supersede all prior discussions, notes, memoranda,
negotiations, understandings and all the documents and agreements between them
relating to the same. All documents, agreements, understandings and
correspondence between the Parties prior to the execution of this Contract
shall, with the exception of any non-disclosure/confidentiality undertakings,
become null and void automatically when this Contract enters into
effect.
|
29.3
|
Amendment
|
Amendments
to this Contract and the other contracts contemplated herein may be made only
by
a written agreement in English and Chinese signed by duly authorized
representatives of each of the Parties. This Contract and its annexes shall
become effective upon approval from the Ministry of Commerce of the PRC or
its
authorized department.
-34-
|
29.4
|
Conflict
or Inconsistency
|
The
rights and obligations of the Parties established by and under this Contract
shall continue to exist throughout the Joint Venture Term and shall not be
prejudiced by the establishment of the Company, the adoption of the Articles
of
Association or the execution of any of the contracts contemplated herein. In
the
event of any conflict or inconsistency between this Contract on the one hand
and
the Annexes on the other, this Contract shall prevail over the
Annexes.
|
29.5
|
Notices
|
Notices
or other communications required to be given by any Party or the Company
pursuant b this Contract shall be written in English and may be delivered
personally, sent by registered airmail (postage prepaid) by a recognized courier
service, or sent by facsimile transmission to the address of the other Party
set
forth below or such other address notified in lieu thereof. The dates on which
notices shall be deemed to have been effectively given shall be determined
as
follows:
|
(a)
|
Notices
given by personal delivery shall be deemed effectively given on the
date
of personal delivery.
|
|
(b)
|
Notices
given by registered airmail (postage prepaid) shall be deemed effectively
given on the seventh (7th) day after the date on which they were
mailed
(as indicated by the postmark).
|
|
(c)
|
Notices
given by air courier shall be deemed effectively given on the date
of
delivery (as indicated by the airway
▇▇▇▇).
|
|
(d)
|
Notices
given by facsimile transmission shall be deemed effectively given
on the
first (1st) business day following the date of
transmission.
|
For
the
purpose of notices, the addresses of the Parties are as follows:
|
NMS:
|
Neusoft
Park, Hun Nan New District
|
|
|
Shenyang
110179, Liaoning Province
|
||
|
People's
Republic of China
|
||
|
Attention:
|
▇▇▇▇▇▇
▇▇▇▇▇, President
|
|
|
Telephone
No.:
|
(▇▇
)▇▇ ▇▇▇▇ ▇▇▇▇
|
|
|
Facsimile
No.:
|
(▇▇
)▇▇ ▇▇▇▇ ▇▇▇▇
|
|
|
POSITRON:
|
Positron
Corporation
|
|
|
▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
|
||
|
▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
|
||
|
Attention:
|
▇▇▇▇
▇. ▇▇▇▇▇▇, CEO and President
|
|
|
Telephone
No:
|
(▇▇▇)
▇▇▇ ▇▇▇-▇▇▇▇
|
|
|
Facsimile
No:
|
(▇▇▇)
▇▇▇ ▇▇▇-▇▇▇▇
|
-35-
Any
Party
may at any time change its address for service of notice or communication in
writing delivered to the other Party in accordance with the terms
hereof.
|
29.6
|
Waiver
|
Unless
otherwise provided for, failure or delay on the part of any Party to exercise
any right or privilege under this Contract shall not operate as a waiver of
such
right or privilege nor shall any partial exercise of any right or privilege
preclude any further exercise thereof. Any waiver by a Party of a breach of
any
term or provision of this Contract shall not be construed as a waiver by such
Party of any subsequent breach, its rights under such term or provision, or
any
of its other rights hereunder.
|
29.7
|
Survival
|
The
following Articles shall survive the termination or expiration of this Contract:
1, 2, 3, 6, 7, 10.2, 20, 23, 27, 28.1 and 29.
|
29.8
|
Headings
|
The
headings contained in this Contract are for reference only and shall not be
deemed to be a part of this Contract or to affect the meaning or interpretation
hereof.
-36-
IN
WITNESS WHEREOF,
the
Parties hereto have caused this Contract to be executed as of the date first
above written by their duly authorized representatives.
|
NEUSOFT
MEDICAL SYSTEMS CO., LTD.
|
|
|
By:
|
|
|
Name:
|
▇▇▇
▇▇▇▇▇
|
|
Title:
|
Chairman
|
|
POSITRON
CORPORATION
|
|
|
By:
|
|
|
Name:
|
▇▇▇▇
▇. ▇▇▇▇▇▇
|
|
Title:
|
President
and Chief Executive Officer
|
|
By:
|
|
|
Name:
|
▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇
|
|
Title:
|
Chairman
of the Board
|
-37-