General Agency Agreement of Medicine Technology Acquisition
General Agency Agreement of Medicine Technology Acquisition
Principal: China Yuandong Pharmaceutical Technology Company Limited
Agent: Hong Kang Industry Technology Consultation Company Limited
Article 1： General Principles 第1条:总则
THIS AGREEMENT dated the day of 15th May, 2011 is made BETWEEN:
China Yuandong Medicine Technology Company Limited, a company incorporated under the laws of China, and having its registered address at Shanghai (hereinafter called the Principal); and Hong Kang Industry Technology Consultation Company Limited, a company incorporated under the laws of Hong Kong, and having its registered office at Hong Kong (hereinafter called the General Agent).
WHEREAS: The Principal is desirous of acquiring，from Germany's Merck Lyon Pharmaceutical Company Limited, (hereinafter called the Seller)， the manufacture technology of Cetuximab (hereinafter called the Technology).The Principal and the General Agent have agreed that the General Agent shall be appointed as the Principal’s sole exclusive Agent to negotiate, on behalf of the Principal, with the Seller the price and other terms and conditions for, and all other matters connected with, the acquisition of the technology by the Principal, subject to the terms and upon the conditions hereinafter set forth. NOW IT IS HEREBY AGREED as follows:
Article 2: Definitions 第2条: 定义
2.1 In this Agreement, the following words or expressions shall have the meanings given to them respectively below:
“Commission” means the commission payable by the Principal to the General Agent pursuant to Article 6.1 subject to the terms and conditions of this Agreement.
“Licence Agreement” means the Technology Transfer or Licence Agreement to be entered into between the Principal and the Seller, together with all addenda, amendments and supplements made thereto from time to time and at any time, setting out the Price and other terms and conditions for the sale and transfer by the Seller of the Technology to, and the acquisition of the same by, the Principal.
“Price” means the aggregate amount of the purchase price payable by the Principal to the Seller for the acquisition of the Technology, which amount shall also include all licence fees and royalties and other payments of whatsoever nature payable to the Seller by the Principal in consideration of or in connection with the transfer of the Technology to the Principal.
2.2 Clause headings are inserted for convenience of reference only and shall be ignored in the interpretation of this Agreement.
Article 3: General Agency 第3条: 总代理
3.1 The Principal hereby appoints the General Agent, and the General Agent hereby accepts appointment, as the Principal’s sole exclusive General Agent to negotiate, on behalf of the Principal, with the Seller, the Price and all other terms and conditions of the Licence Agreement and otherwise to act generally on behalf of the Principal in all respects relating to, and to attend to all maters whatsoever connected with, the acquisition of the Technology by the Principal.
3.2 The Principal shall not, during the period of this agreement, appoint any other person or persons as Agent of the Principal to negotiate the Price or the terms and conditions of the Licence Agreement or otherwise to act in any respect on behalf of the Principal relating to, or to attend to any matter whatsoever connected with, the acquisition of the Technology by the Principal.
3.3 The appointment of the General Agent hereunder as the sole exclusive Agent of the Principal for the negotiation of the Licence Agreement and the acquisition by the Principal of the Technology shall be deemed, for all purposes, to have become effective as from the date of this Agreement, and shall remain effective until the date when the Price and all other terms and conditions for the acquisition of the Technology by the Principal from the Seller have been agreed and satisfactorily concluded, and Licence Agreement executed and delivered by all relevant Parties thereto, and the Commission paid to and received by the General Agent.
3.4 The appointment by the Principal of the General Agent as the Principal’s sole exclusive Agent for the negotiation of the Licence Agreement and acquisition by the Principal of the Technology shall in no way constitute, or be deemed to constitute, a partnership between the Parties hereto or a General Agency other than for the purposes stated herein.
Article 4: Duties of the General Agent 第4条: 总代理的职责
4.1 During the continuance of this Agreement of the General Agent shall:
(1) use its best endeavors to negotiate for and obtain from the Seller the best available Price and the most favorable terms and conditions for the transfer to and acquisition by the Principal of the Technology, and to conclude the terms and conditions of the Licence Agreement as soon as practicable;
(2) in the event of any disagreement, difference or deadlock arising between the General Agent and the Seller in the course of negotiations for the transfer and acquisition of the Technology, promptly supply to the Principal details of such disagreement, difference or deadlock, and consult with the Principal regarding the same;
(3) generally do all such other acts as may be in the best interests of the Principal and conductive to the conclusion of the Licence Agreement and the acquisition by the Principal of the Technology.
4.2 During the continuance of this Agreement, the General Agent shall not without the express prior written consent of the Principal:
(1) describe itself or hold itself out as General Agent for the Principal except in respect of or in connection with the purposes and matters for which the Agent is appointed the sole exclusive Agent of the Principal hereunder; or
(2) make any admission or settle any claim by or against the Principal, or pledge the credit of the Principal, or give any warranty or make any representation on behalf of the Principal, or commit the Principal to any obligation or liability of any kind; or
(3) agree with the Seller the Price and any of the terms and conditions for the transfer and acquisition of the Technology; or
(4) use for its own purposes or divulge or communicate to any person any confidential or other information which the Agent may howsoever obtain in relation to the business or other affairs of the Principal.
Article 5: Duties of the Principal 第5条:委托方责任
5.1 The Principal shall, if and whenever requested by the General Agent, promptly give instructions to the General Agent regarding the Price and other terms and conditions to be agreed between the General Agent, on behalf of the Principal, with the Seller, or to be included in the Licence Agreement, or otherwise regarding any other matter concerning the transfer of the Technology to the Principal.
5.2 The Principal shall furnish the General Agent with all information concerning the business and other affairs of the Principal, which may reasonably be required by the General Agent from time to time, for the purpose of negotiating and concluding with the Seller the terms and conditions for the transfer and acquisition of the Technology.
Article 6: Commission 第6条: 佣金
6.1 The Principal hereby agrees to pay to the General Agent a Commission equal to three percent ( 3 %) of the Price, which Commission is to be paid to the General Agent in United States Dollars on the date of execution of the Licence Agreement.
6.2 The Parties hereto hereby agree that, notwithstanding anything to the contrary herein contained, the obligation on the Part of the Principal to pay the Commission in accordance with this Article 6.1 shall arise, and the right of the General Agent to receive the Commission in accordance with this Article 6.1 shall accrue, as soon as the Licence Agreement is executed by the relevant Parties thereto, or as soon as the price and all other terms and conditions for the transfer of the Technology by the Seller to the Principal have been agreed between the Seller and the Principal.
Article 7: Termination 第7条: 终止
7.1 The Principal shall be entitled to terminate forthwith the appointment of the General Agent under this Agreement, by giving notice in wriiting to the General Agent, if any of the following event or circumstances occurs:
The General Agent fails to perform or observe any of its duties or obligations under this Agreement and such non-performance or non-fulfillment is not rectified within a period of thirty (30) days after receipt by the General Agent of the notice from the Principal, notifying the General Agent of such non-performance or non-fulfillment.
7.2 The expiration or termination of the General Agent’s appointment under this Agreement for whatever reason shall be without prejudice to any pre-existing rights and obligations of either Party hereunder.
7.3 Upon expiration or termination of the Agent’s appointment hereunder for whatever cause:
(1) the General Agent shall immediately return to the Principal all notes, memoranda, records or other documents held in the possession of the General Agent relating to the business of the Principal.
(2) the Principal shall pay the Commission to the General Agent (if Commission has already accrued but not yet paid in accordance with and under the provisions of Article 6.1) within five (5) days after the termination of the General Agent’s appointment under this Agreement.
7.4 Notwithstanding the expiration or termination of the General Agent’s appointment under this Agreement for whatever cause, any terms or provision of this Agreement which is capable of being performed or observed after the date of such expiration or termination of the General Agent’s appointment under this Agreement shall survive the same and shall continue to be binding on the Parties hereto and remain in full force and effect.
Article 8: Sub-Agency or Assignment 第8条:分代理或任务
8.1 The General Agent shall not, without the express prior written consent of the Principal, assign or transfer any of its obligations or duties hereunder and shall not appoint sub-agents. However, if the principal approves the appointment of sub-agents by the General Agent, any such appointment of a sub-agent shall not relieve the General Agent of any of its obligations and duties hereunder.
8.2 The Principal shall not assign or transfer any of its rights, obligations or liabilities hereunder without the express prior written consent of the General Agent.
8.3 This Agreement shall be binding upon, and ensure to the benefit of, the Principal and the General Agent, and their respective successors.
Article 9: Amendments 第9条: 修改
This Agreement contains the entire agreement and understanding between the Principal and the General Agent relating to the acquisition of the Technology by the Principal, and supersedes all previous agreements or arrangements between the Principal and the General Agent relating to the acquisition of the Technology by the Principal which shall henceforth cease and terminate with effect from the date hereof. This Agreement may not be amended or modified except by written instrument signed by each of the Parties hereto.
Article 10: Governing Law 第10条: 适用法律
It is understood that all the provisions hereof are in accordance with relevant laws, decrees and regulations of China existing at the time of the signing. However, if a material change occurs to either Principal or General Agent’s economic benefits after the effective date hereof due to the promulgation of new laws, rules and regulations or any amendment to the applicable laws, rules and regulations made, the Principal and General Agent shall consult promptly and make necessary amendments or adjustments to the articles concerned herein in order to maintain the Parties’ normal economic benefits hereunder.
Article 11: Dispute Resolution 第11条: 争议解决
11.1 All disputes arising from the implementation for related hereto preferably shall be settled through friendly consultation between the Principal and General Agent.
11.2 If consultation fails to settle the disputes, mediation may be held at Shanghai. All disputes shall be finally settled by arbitration at Hong Kang in accordance with its rules of International Arbitration.
11.3 When any dispute occurs and when such dispute is under arbitration, except for the part under dispute that is subject to arbitration, the Principal and General Agent must continue to exercise their respective rights and perform their respective obligations in accordance with the provision hereof.
11.4 The arbitration award shall be final and binding on the Principal and General Agent. The cost of arbitration (excluding the fees for the respective appointment of lawyers by either of the Parties) shall be borne by the losing Party or in accordance with the ruling of the arbitrator(s).
Article 12: Languages 第12条: 语言
This Agreement shall be executed in English and Chinese texts. Both versions shall be official texts.
Article 13: Notices 第13条: 通知
13.1 Every notice, request, or other communication under this Agreement shall be in writing, but may be given or made by letter, telegram.
13.2 Every notice, request, or other communication shall be sent, in the case of a letter, telegram, to the other Party at its address herein before stated, or such other address as that Party may have previously notified the other.
IN WITNESS WHEREOF the Parties hereto have executed this Agreement the day and year first above written.
The Principal The General Agent