Document/ExhibitDescriptionPagesSize
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2: EX-10.1 Material Contract HTML 429K
3: EX-10.2 Material Contract HTML 77K
4: EX-31.1 Certification -- §302 - SOA'02 HTML 30K
5: EX-31.2 Certification -- §302 - SOA'02 HTML 30K
6: EX-32.1 Certification -- §906 - SOA'02 HTML 24K
7: EX-32.2 Certification -- §906 - SOA'02 HTML 24K
14: R1 Document And Entity Information HTML 47K
15: R2 Condensed Consolidated Balance Sheets HTML 113K
16: R3 Condensed Consolidated Balance Sheets HTML 45K
(Parenthetical)
17: R4 Condensed Consolidated Statements of Operations HTML 74K
and Comprehensive Loss
18: R5 Consolidated Statements of Stockholders' Equity HTML 76K
19: R6 Condensed Consolidated Statements of Cash Flows HTML 120K
20: R7 Organization HTML 35K
21: R8 Basis of Presentation and Summary of Significant HTML 62K
Accounting Policies and Estimates
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23: R10 Fair Value Measurements HTML 71K
24: R11 Inventories, net HTML 35K
25: R12 Revenue Recognition HTML 66K
26: R13 Investment in Unconsolidated Affiliate HTML 35K
27: R14 Accrued Liabilities HTML 41K
28: R15 Long-Term Debt HTML 44K
29: R16 Lease Obligations HTML 48K
30: R17 Capitalization and Equity Structure HTML 70K
31: R18 Stock-based Compensation HTML 83K
32: R19 Income Taxes HTML 26K
33: R20 Commitments and Contingencies HTML 31K
34: R21 Net Loss Per Share HTML 43K
35: R22 Segment Disclosures HTML 56K
36: R23 Related Party Transactions HTML 28K
37: R24 Subsequent Events HTML 28K
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Accounting Policies and Estimates (Policies)
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48: R35 Net Loss Per Share (Tables) HTML 45K
49: R36 Segment Disclosures (Tables) HTML 58K
50: R37 Organization (Details) HTML 37K
51: R38 Basis of Presentation and Summary of Significant HTML 40K
Accounting Policies and Estimates (Details)
52: R39 Accumulated Other Comprehensive Income (Loss) HTML 34K
(Details)
53: R40 Fair Value Measurements - Fair Value Hierarchies HTML 38K
(Details)
54: R41 Fair Value Measurements - Change in Level 3 HTML 38K
(Details)
55: R42 Inventories, net (Details) HTML 38K
56: R43 Revenue Recognition - Deferred Revenue (Details) HTML 42K
57: R44 Revenue Recognition - Deferred Revenue Activity HTML 30K
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58: R45 Revenue Recognition - Additional Information HTML 40K
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(Details)
60: R47 Revenue Recognition - Disaggregation of Revenue HTML 45K
(Details)
61: R48 Investment in Unconsolidated Affiliate (Details) HTML 62K
62: R49 Accrued Liabilities - Schedule of Accrued HTML 41K
Liabilities (Details)
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Warranty (Details)
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66: R53 Lease Obligations - Additional Information HTML 41K
(Details)
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(Details)
68: R55 Capitalization and Equity Structure - Additional HTML 85K
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(Details)
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Assumptions (Details)
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(Details)
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82: R69 Subsequent Events (Details) HTML 38K
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83: EXCEL IDEA Workbook of Financial Reports XLSX 83K
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CERTAIN IDENTIFIED INFORMATION HAS BEEN EXCLUDED FROM THIS EXHIBIT BECAUSE IT IS BOTH (I) NOT MATERIAL AND (II) WOULD BE COMPETITIVELY HARMFUL IF PUBLICLY DISCLOSED. SUCH PORTIONS ARE MARKED AS INDICATED WITH BRACKETS (“[***]”) BELOW.
Zhejiang Youchuang Venture Capital Investment Co., Ltd., a company organized under the laws of the PRC (“Youchuang”), Shaoxing City Keqiao District Paradise Silicon Intelligent Robot Industrial Investment Partnership (Limited Partnership) (“Industrial Investment Fund”), a limited liability partnership organized under the laws of the PRC (“Industrial
Investment Fund”), Ekso Bionics, Inc., a company organized under the laws of the State of Delaware, USA (“Ekso Bionics”), in accordance with the Joint Venture Law and other relevant published laws and regulations of the PRC, through friendly discussions and in conformity with the principles of equality and mutual benefit, have agreed to enter into this equity joint venture contract (this “Contract”) for the establishment, operation, and governance of Exoskeleton Intelligent Robotics Co. Limited (the “Company” or “Joint Venture”) in Keqiao
District, Shaoxing, Zhejiang, China as of this 30th day of January , 2019 (“Effective Date”). (Youchuang, Industrial Investment Fund and Ekso Bionics are collectively referred to as the “Parties” and individually referred to as a “Party” herein. Youchuang and Industrial Investment Fund are collectively referred to as the “Chinese Shareholders” herein.)
第一条
定义
Article IDEFINITIONS
1.1
定义。除本合同条款或上下文另有规定外༌以下术语具有如下定义的含义༚
Definitions. Unless the terms or context indicate otherwise, the following terms have the meanings set out below:
Affiliate
means, with respect to any specified Person, any other Person that, directly or indirectly through one or more intermediaries, Controls, is Controlled by or is under common Control with such specified Person.
SAMR: means The State Administration for Market Regulation of the PRC or its delegated local authority in charge of the business registration of the
Company.
Control (including the terms “controlled by”, and “under common control with”) means, as to any Person, the possession, directly
or indirectly, of the power to direct or cause the direction of the management and policies of such Person, whether through the ownership of 50% or more of the voting securities, equity interest, ownership, or registered capital, or the right to appoint or elect the majority of members of the board or management of such Person, or by contract, administrative control or other method.
现有产品系指[***]EksoGT、EksoVest和EksoZeroG仿生臂[***]。
Current Products means to [***] EksoGT, EksoVest, and EksoZeroG Arm [***].
指定银行系指国家外汇管理局和/或其地方分局批准的金融机构。
Designated
Banks means financial institutions approved by the State Administration of Foreign Exchange and/or its local counterparts.
开发产品系指 [***]。
Developed Products means [***].
爱科索 应具有前言部分规定的含义。
Ekso Bionics shall have the meaning set out in the Preamble.
股权系指合同一方按其在公司注册资本的投资比例而享有的公司权益。
Equity
Interest means any rights and interests enjoyed by one Party with respect to the Company in proportion to its shareholding ratio in the registered capital of the Company.
成立日期系指公司营业执照的颁发日期。
Establishment Date means the date on which the Business License of the Company is issued.
不可抗力事件应具有第18.1条规定的含义。
Event
of Force Majeure shall have the meaning set out in Article 18.1.
财务与会计制度应具有第11.2条规定的含义。
Financial and Accounting System shall have the meaning set out in Article 11.2.
总经理系指根据第8.1条规定任命的公司总经理。总经理兼任公司总裁和首席执行官。
General Manager means the general manager of the
Company appointed in accordance with Article 8.1 and who also has the role of President and CEO of the Company.
Governmental
Authority means any (i) governmental or judicial authority; or (ii) ministry, department, office, commission, agency, authority or organisation of any government, including without limitation the State-owned Assets Supervision and Administration Commission, the MOFCOM, the SAMR, the NMPA, and the SAFE.
受影响方应具有第18.1条规定的含义。
Hindered Party shall have the meaning set out in Article 18.1.
国际商会应具有第20.1条规定的含义。
ICC shall have the meaning set out in Article 20.1.
改进系指[***]。
Improvements
means [***].
独立审计师应具有第11.4条规定的含义。
Independent Auditor shall have the meaning set out in Article 11.4.
保险系指根据中国现行法律规定的保险或再保险产品或服务。
Insurance means any product or service determined to constitute insurance, assurance or reinsurance by the laws in effect in the PRC.
合资经营法系指《中外合资经营企业法》以及《中外合资经营企业法实施条例》。
Joint
Venture Law means the Law on Sino-foreign Equity Joint Ventures and the Regulations for the Implementation of the Law on Sino-foreign Equity Joint Ventures.
合营期限系指公司营业期限༌即自成立日期起[***]༌可另行延长。
Joint Venture Term means the term of operation of the Company, being a period of [***] commencing on the Establishment Date, as may be extended.
许可技术系指[***]。
“Licensed Technologies”
means [***].
清算委员会应具有第15.3条规定的含义。
Liquidation Committee shall have the meaning set out in Article 15.3.
Manufacturing Services Agreement means the manufacturing services agreement
to be entered into between Ekso Bionics and the Company subsequent to the establishment of the Joint Venture. The key terms of this agreement is set forth in Appendix B.
商务部系指中华人民共和国商务部或其指定的地方机构。
MOFCOM means the Ministry of Commerce of the PRC or its delegated local authority.
药监局系指国家药品监督管理局或其委派的地方机构。
NMPA
refers to the National Medical Products Administration or its delegated local authority.
不参与方应具有第5.5条规定的含义。
Non-participating Party shall have the meaning set out in Article 5.5.
转让股权应具有第5.7条规定的含义。
Offered Interest shall have the meaning set out in Article 5.7
受让方应具有第5.7条规定的含义。
Offered
Party shall have the meaning set out in Article 5.7.
合同一方或合同各方应具有前言部分规定的含义。
Party or Parties shall have the meaning set out in the Preamble.
Person
means any natural person, general or limited partnership, corporation, company, trust, limited liability company, limited liability partnership, firm, association or organization or other legal entity.
中华人民共和国༈简称 “中国”༉在本合同中仅包括中华人民共和国大陆地区。
PRC or China means, for the purpose of this Contract only, the mainland of
the People’s Republic of China.
中国公司法系指《中华人民共和国公司法》。
PRC Company Law means the Company Law of the People’s Republic of China.
采购协议系指合资公司成立后将由爱科索和合资公司签署的采购协议。
Purchase Agreement means the purchase agreement to be entered into between Ekso Bionics and the
Company subsequent to the establishment of the Joint Venture.
质量管理体系系指质量管理体系。
QMS means Quality Management System.
相关协议系指技术许可协议和制造服务协议关键条款。
Related Agreements means the Technology License Agreement and Key Terms of Manufacturing Service Agreement.
人民币༈RMB༉系指中华人民共和国的法定货币。
Renminbi
or RMB means the lawful currency of the PRC.
外汇管理局系指中华人民共和国国家外汇管理局或其指定的地方机构。
SAFE means the State Administration of Foreign Exchange of the PRC or its delegated local authority.
高级管理人员系指董事会根据第8.1条规定任命的总经理和首席财务官。
Senior Management Personnel
means the General Manager and the Chief Financial Officer to be appointed by the Board pursuant to Article 8.1.
Supervisor means a person appointed by a Party pursuant to Article 9.1, who shall supervise the operation and financial situation of the Company in accordance with Article 9 and the PRC Company Law.
技术许可协议系指合资公司成立后将由爱科索和合资公司签署的技术许可协议༌以本合
同附录A的方式提供。
Technology License Agreement means the technology license agreement in the form attached hereto as Appendix A to be entered into between Ekso Bionics and the Company subsequent to the establishment of the Joint Venture.
终止通知应具有第15.1条规定的含义。
Termination Notice shall have the meaning set out in Article 15.1.
Key Terms of Manufacturing Services Agreement means the term sheet of manufacturing services attached hereto as Appendix B as agreed by the Parties, which shall be developed into a manufacturing service agreement to be entered into between Ekso Bionics and the Company subsequent to the establishment of the Joint Venture.
Territory means China, Hong Kong, Singapore, Malaysia and other countries to be mutually agreed by the Parties but excluding Japan, India and Australia.
Trademark
License Agreement means the trademark agreement to be entered into between Ekso Bionics and the Company subsequent to the establishment of the Joint Venture. Ekso Bionics shall license the Company to use Ekso Bionics trademarks free of charge during the Joint Venture period.
转让应具有第5.7条规定的含义。
Transfer shall have the meaning set out in Article 5.7.
转让方应具有第5.7条规定的含义。
Transferor
Party shall have the meaning set out in Article 5.7.
转让通知应具有第5.7条规定的含义。
Transfer Notice shall have the meaning set out in Article 5.7.
美元系指美利坚合众国的法定货币。
USD means the lawful currency of the United States of America.
美国系指美利坚合众国
USA means United States of America
优创应具有前言部分规定的含义。
Youchuang
shall have the meaning set out in the Preamble.
1.2
释义。除非另有规定༌否则在本合同中༚
Interpretation. In the interpretation of this Contract, unless the context otherwise requires:
the singular will include the plural and vice versa and in particular (but without limiting the generality of the foregoing) any word or expression defined in the singular will have the corresponding meaning if used in the plural and vice versa and a reference to any gender will include the other genders;
(b)
本合同提及 “包含”、 “包括”等词语时༌应理解为 “包括但不限于”༛
the
words “include”, “includes” or “including” used in this Contract are deemed to be followed by the words “without limitation”;
(c)
本合同目录和标题仅供参考༌不得以任何方式影响本合同含义或解释༛
the table of contents and the headings for this Contract are for reference
only and do not affect in anyway the meaning or interpretation of this Contract;
(d)
本合同提及任何法律包括其修订、修改或增补版本༈包括任何继任法律༉༛
all references to any law mean such law as amended, modified or supplemented from time to time, including any successor laws;
(e)
本合同提及任何条款或附录系指本合同条款或附录༈视情况而定༉༛以及
all
references to any clause or Appendix in this Contract are references to such clauses or Appendix of this Contract (as the case may be); and
(f)
本合同提及任何人包括其继承人和许可受让人。
all references to a particular person are also to its successors and permitted assigns.
Each
of the Parties represents and warrants to the others that: (i) it is a duly organized and validly existing independent legal person in the place of its incorporation or establishment and has the full power and right to conduct its business in accordance with its business license, articles of association or similar corporate organizational documents; (ii) it possesses full power and authority to enter into this Contract and to perform its obligations hereunder; (iii) its representative whose signature is affixed hereto has been fully authorized to sign this Contract and to bind such Party thereby; and (iv) upon the Effective Date of this Contract,
the provisions of this Contract shall constitute its legal, valid and binding obligations.
Establishment. Chinese
Shareholders and Ekso Bionics, in accordance with the Joint Venture Law, other applicable laws and regulations of the PRC and the provisions of this Contract, hereby agree to establish the Company with the objective to engage in the business as set forth in Article 4.2 of this Contract.
Name. The name of the Company shall be “爱科索智能机器人有限公司” in Chinese and “Exoskeleton Intelligent Robotics Co. Limited” in English.
3.3
地点。合同各方同意༌公司成立地点为绍兴市。公司法定地址为中国浙江省绍兴市柯桥区柯北大道1115号。
Location. The
Parties agree that the Company shall be established in the city of Shaoxing. The legal address of the Company shall be located in No. 1115 Kebei Avenue, Keqiao District, Shaoxing, Zhejiang Province, PRC.
Limited
Liability. The Company is a limited liability company. Except as otherwise expressly provided herein, once a Party has paid in full its contribution to the registered capital of the Company, it shall not be required to provide any further funds to or on behalf of the Company by way of capital contribution, loan, advance, guarantee or otherwise. Creditors of the Company shall have recourse only to the assets of the Company and shall not seek repayment from either of the Parties. If the
Company’s assets are insufficient to satisfy its creditor’s claims, no Party shall be liable for any deficiency. The Company shall indemnify and hold the Parties harmless against any and all direct losses, damages, or liabilities suffered by the Parties in respect of any third party claims arising out of the operation of the Company.
Purpose. The
purpose of the Parties in establishing the Company is to strengthen the economic cooperation, seek close strategic cooperation in the area of anthropomorphic exoskeleton technology and develop the Company into a competitive manufacturer of wearable and bionic exoskeleton products for the Chinese and overseas market.
4.2
经营范围。[***]。涉及许可证的凭证经营。༈具体经营范围应经主管政府当局批准༉
Scope
of Business. [***]. Licenses for operation should be obtained if required. (the specific scope shall be subject to the approval of competent Governmental Authorities).
Sales Arrangement. The Company can use the Patent Rights contributed by Ekso Bionics and the Licensed Technologies licensed by Ekso Bionics to manufacture the Current Products and [***] sell the Current Products in [***] agreed herein, and shall not license the Licensed Technologies to any third parties or Party to use or manufacture anywhere, provided however that Ekso Bionics can use such technologies and the patents registered in the jurisdictions other than China to manufacture and sell its products, components and subassemblies outside the Territory. [***]
The Company shall sell its products only in the Territory under the trademark and brands of Ekso Bionics. [***]
4.5 合同各方责任。
Responsibilities
of the Parties.
(a)
优创责任༚
Responsibilities of Youchuang:
(i)
在规定期限内提供认缴资本额༛
contribute the subscribed capital contribution within prescribed period;
be
responsible for the communication and coordination with relevant Governmental Authorities of the territory where the Joint Venture project is located prior to the establishment of the Company, and assist the Company to complete the relevant approvals with the competent Governmental Authorities, including company registration, product registration procedures, etc.;
(iii)
负责合资公司临时生产场地༌并协助公司设计和建造工厂、其他工程设施、水电供应以及电信和其他基础设施༛
be
responsible for the premises required for the temporary production of the Company, and assist the Company with the design and construction of the factory building and other engineering facilities as well as water supply, power supply and telecommunication and other infrastructures.
assist
the Company to purchase or rent equipment, materials, raw materials, office appliances, vehicles, communication facilities, etc. in China, and assist the Company with the submission formalities of importing equipment prior to the establishment of the Company;
use
commercially best efforts to implement at the Company’s expense QMS appropriate to the scope of its operation and compliant with the regulations of the USA, Canada, and the European Union; provided that the Company shall be responsible for overall production and maintaining the QMS consistent with the applicable regulatory requirements;
(vi)
尽最大商业努力༌协助合资公司处理在药监局注册的相关事宜༛
use
commercially best efforts to assist the Company with the matters related to the NMPA registration;
(vii)
协助并配合合资公司聘用高级管理层༌协助合资公司聘用中方管理人员、技术人员、工人和其他必要人员༛
assist and coordinate the recruitment of senior management of the Joint Venture, and assist the Joint Venture with recruiting local Chinese managers,
technicians, workers and other necessary personnel;
(viii)
协助合资公司开展产品临床测试和营销管理等网络建设༛
assist the Joint Venture with the product clinical test and network construction such as marketing management;
(ix)
负责处理合资公司委托的其他事宜༛以及
be
responsible for handling other matters entrusted by the Joint Venture; and
(x)
监督并促使其指定董事按照本合同和公司章程规定履行职责༌包括但不限于参加适时召开的董事会会议。
supervise and cause the directors appointed by it to perform their duties in accordance with the provisions of this Contract and
the Articles of Association, including but not limited to attending duly convened Board meetings.
(xi)
作为协议的一部分༌优创或优创指定的第三方将在协议签订后立即向Ekso Bionics Holdings, Inc. 股权投资五百万美元 ($5,000,000), 投资每股价格为2019年1月29日(周二)
收盘价༌_1_.63 美元(购买价格)。并根据股权购买协议提供60天反稀释条款。
As part of the agreement, Youchuang or the third party designated by Youchuang will make an immediate equity investment of USD five million ($5,000,000) in Ekso Bionics Holdings, Inc. at price per share of $_1_ _63_ (the Purchase Price), the closing price of Tuesday, January 29, 2019, subject to a
60 day anti-dilution provision per shareholder purchase agreement.
(xii)
合资公司能够生产制造合格的EksoGT、EksoVest和EksoZeroG Arm产品后༌自向买方༈如爱科索、其关联方和中国境内外的任何第三方༉发出第一批Ekso Vest、EksoZeroG Arm ༈成品༉以及现有的Ekso GT配件༈指EKSO GT完整的成品的全部配件༌到达爱科索在买方当地组装成品并验收成功后༉༈“发货日期”起༉后
30个工作日内༌合资公司或优创或优创指定第三方向 Ekso Bionics Holdings, Inc. 投资五百万美元༈500万美元༉༈股权投资价格由 “发货日期”之前20个交易日的成交量加权平均价决定༌但股权价格与第一次签约后五百万美元投资的股权价格相比不高于20%༌ 同时也不低于第一次签约后五百万美元投资的股权价格的80%༉༌作为向爱科索的股权投资。
After
the Joint Venture is able to manufacture qualified EksoGT, EksoVest and EksoZeroG Arm products, the Joint Venture or Youchuang or the third party designated by Youchuang will invest USD Five Million (5,000,000) in Ekso Bionics Holdings, Inc. as the equity investment within thirty business days after issuing the first batch of Current industrial products (i.e. finished products, and current EKSO GT components (all components of the EKSO GT finished products after they are successfully assembled as a finished product locally) to the buyer (such as Ekso Bionics, its Affiliates and any third parties either in China or outside China) (“Shipment Date”). The equity investment price will be the volume weighted average price of 20 trading days before the issuing date, but with a collar so that the equity price will be no greater than 20% higher than the first investment and
no lower than 80% of the first investment price. (First investment is the first 5 $mm investment made after signing the joint venture contract)
(b)
产业投资基金责任༚
Responsibilities of Industrial Investment Fund:
(i)
在规定期限内提供认缴资本额༛
contribute
the subscribed capital contribution within prescribed period;
(ii)
负责处理合资公司委托的其他事宜༛以及
be responsible for handling other matters entrusted by the Joint Venture; and
(iii)
监督并促使其指定的董事按照本合同和公司章程的规定履行职责༌包括但不限于参加适时召开的董事会会议。
supervise
and cause the directors appointed by it to perform their duties in accordance with the provisions of this Contract and the Articles of Association, including but not limited to attending duly convened Board meetings.
(c)
爱科索责任༚
(d)
Responsibilities of Ekso Bionics:
(i)
在规定期限内提供认缴资本额༛
contribute
the subscribed capital contribution within prescribed period;
assist the Joint Venture in mastering the technologies to be contributed or licensed by Ekso Bionics for a goal that the Company
can manufacture products with the same quality of the same products manufactured by Ekso Bionics. The Company shall provide the site and utilities following its Establishment Date, and purchase equipment and raw materials as required by the Ekso Bionics and hire a minimum of [***] competent production engineers. Subject to the Company complying with the foregoing requirements, Ekso Bionics shall manufacture [***] within [***] and [***] within [***] from when the above site, facilities and personnel are provided by the Company. The [***] must comply with the quality requirements prescribed by FDA and competent authority in EU that the current equivalent product manufactured by Ekso Bionics have satisfied, and
Company and Ekso Bionics should work together to ensure that the [***] can also satisfy the relevant NMPA’s quality requirements;
use
commercially best efforts to assist the Company at the Company’s expense in implementing QMS appropriate to the scope of its operation and compliant with the regulations of the US, Canada, and the European Union as set forth in Article 4.5(a)(v) above; provided that the Company shall be responsible for overall production and maintaining the QMS consistent with the applicable regulatory requirements.
(iv)
根据技术许可协议规定༌提供技术培训༛
provide
technical training in accordance with the Technology License Agreement;
(v)
监督并促使其指定的董事按照本合同和公司章程的规定履行职责༌包括但不限于参加适时召开的董事会会议༛
supervise and cause the directors appointed by it to perform their duties in accordance with the provisions of this Contract
and the Articles of Association, including but not limited to attending duly convened Board meetings;
Responsible to the extent already in Ekso Bionics’ possession for providing the related documents required (including but not limited to the analysis report of product risks, product technical standards, product inspection report, clinical evaluation materials, product description and label sample manuscript, quality management system documents relevant to the product development and production and other materials required for evidencing) for necessary registration and approval, and assisting
the Joint Venture in the product registration of [***] with the NMPA;
(vii)
负责处理合资公司委托的其他事宜。
be responsible for handling other matters entrusted by the Company;
subject
to Youchuang fulfilling its covenants and obligations provided under Articles 4.5 (a)(xi) and 4.5(a)(xii) , Ekso Bionics shall grant the Company a perpetual, irrevocable, royalty-free, exclusive China license during the Joint Venture Term to [***] for the sole purpose to enable the Company to manufacture and sell the Developed Products the Developed Products within the Territory (“Developed Products License”).
In
consideration of the Developed Products License, the Parties hereby acknowledge and agree that the Company will pay [***] (“Development Fees”), after [***] commencing from the Shipment Date. The Company will pay [***], the payment method for Development Fees shall be provided in the Technology License Agreement.
第五条 投资总额和注册资本
ARTICLE V TOTAL AMOUNT OF INVESTMENT AND REGISTERED CAPITAL
5.1
投资总额。合资公司投资总额为人民币7.8亿元༌符合第5.2༈a༉条列出的公司注册资本。
Total
Investment Amount. The total investment of the Company shall be RMB 780 million which conforms with the Company’s registered capital as set forth in Article 5.2(a).
5.2
注册资本。
Registered Capital.
合资公司注册资本为人民币7.8亿元༈人民币柒亿捌仟万元༉。
The
registered capital of the Company shall be RMB 780 million (seven hundred and eighty million Renminbi).
Youchuang
shall contribute RMB 324 million (three hundred and twenty-four million Renminbi) to the registered capital of the Company, representing a forty-one-point fifty-four percent (41.54%) share of the registered capital of the Company. Youchuang shall make its capital contribution in cash in RMB.
Industrial
Investment Fund shall contribute RMB 300 million (three hundred million Renminbi) to the registered capital of the Company, representing thirty-eight-point forty-six percent (38.46%) share of the registered capital of the Company. Industrial Investment Fund shall make its capital contribution in cash in RMB.
Ekso
Bionics shall transfer and contribute the Patent Rights, equivalent to RMB 156 million (one hundred and fifty- six million Renminbi) to the registered capital of the Company, representing a twenty percent (20%) share of the registered capital of the Company.
(d)
合同各方应按以下要求出资༚
The Parties shall make their capital contribution to the Company as follows:
Youchuang shall make [***] of its capital contribution within [***] from the Establishment Date of the Company and the remaining subscribed capital contribution shall be paid in [***];
Industrial
Investment Fund shall make [***] of its capital contribution within [***] from the Establishment Date of the Company and the remaining subscribed capital contribution shall be paid in [***];
Ekso
Bionics shall complete the transfer of all relevant Technical Documentation of contribution within [***] from the Establishment Date. The completion of the Patent Rights transfer registration with CNIPA within [***].
5.3
专利权的转让以及专利权的技术改进
Transfer of Patent Rights and Technical Improvements of Patent Rights
Ekso
Bionics shall complete the transfer registration of Patent Rights in accordance with Article 5.2 (d)(iii). After the Establishment Date, neither Ekso Bionics nor its Affiliates shall have any right to use or utilize in China in any form, or permit any third party in China to use or utilize in any form, any part of the Patent Rights, including use or utilization for the purpose of Improvement, unless otherwise specifically agreed by the Related Agreements.
Evaluation and Capital Verification. Youchuang or the company shall engage an qualified asset appraisal firm to conduct the evaluation of the Patent Rights. EKSO
should provide the relevant documents of the contribution technologies in accordance with the requirement of the asset appraisal firm. After each Party has made its contribution to the Company’s registered capital, the Company shall appoint a qualified accounting firm registered in China to verify such capital contribution and issue a contribution verification report.
Increase
of Registered Capital. If the Board determines on the basis of a resolution that the Company requires additional funds and the Company raises such funds from an increase in its registered capital, the Parties have the right to contribute in accordance with its Equity Interest to such increase in the registered capital of the Company. If one Party (the “Non‑participating Party”) fails to make all or part of its capital contribution within [***] after the date of expiry of the capital contribution period as prescribed by the capital increase agreement it executed, then the other Parties shall be entitled to make any such increase in proportion
to their respective equity ratio and the Non-participating Party’s Equity Interest in the Company shall be diluted accordingly, in which case each Party shall be deemed to have consented to such increase of the Company’s registered capital and shall cause its appointed director(s) to approve such increase. The Parties agree that the investment required for the Company in the future shall be raised through increase of the registered capital or other means approved by the Board.
5.6
额外融资。
Additional
Financing.
(a)
就营运资金而言༌合资公司可根据本合同以公司资产作为抵押品向金融机构申请贷款。
With respect to working capital, the Company may apply for loans from financial institutions by using the Company’s assets as collateral in accordance with this Contract.
No Party may sell,
transfer, assign, give (each a “Transfer”) all or any part of its Equity Interest in the Company to any third party or any other Party) without the prior written consent of the other Parties, except that [***]
Upon the prior written consent of the other Parties, when a Party wishes to Transfer all or any part of its Equity Interest in the Company to a third party other than as contemplated in Section 5.7(a)., the following procedure shall apply. The Party wishing to Transfer all or part of its Equity Interest (the “Transferor Party”) shall give written notice (the “Transfer Notice”) to the other Parties (the “Offered Parties”)
[***]; provided, however that such price and conditions must be bona fide, reflect an arm’s length fair value negotiation by such transferee and the Transferor Party. The Offered Parties shall have the right of first refusal to purchase such Offered Interest on terms no more favorable to the purchasers than those set forth in the Transfer Notice in proportion to their respective equity ratio in the Company. Within [***] after the Transfer Notice, the Offered Parties shall deliver their written responses stating whether they choose to exercise their right to purchase the Offered Interest in the Company. If one Offered Party fails to respond to the Transfer Notice or waive its right of first refusal within the aforementioned [***] period, the other Offered Party may choose to purchase all the Offered
Interest. If both the Offered Parties fail to respond to the Transfer Notice or waive their right of first refusal within the aforementioned [***] period, they shall be deemed to have given their prior written consent and the Transferor Party shall, within a period of [***], transfer the Offered Interest to the intended transferee on terms no more favorable to the purchasers than those specified in the Transfer Notice. In the event the Transferor Party does not consummate the sale of the Offered Interest to the intended transferee within the aforesaid period, the Transferor Party may not dispose of such Offered Interest without repeating the offer procedures set forth in paragraphs (b) and (c) of this Article 5.7.
If
the Offered Party or Parties exercises its right of first refusal, the Parties shall enter into good faith negotiations to document, and use their commercially reasonable efforts to consummate, the sale of the Offered Interest to the Offered Party pursuant to a legally binding agreement containing terms no more favorable to the purchasers than those set forth in the Transfer Notice.
(d)
合资公司股权受让方应承担本合同规定的转让方义务和责任。
Any transferee of any Equity Interest in the
Company shall assume the corresponding obligations and responsibilities of the Transferor Party as stipulated in this Contract.
Upon
any Transfer by a Party of all or any part of its Equity Interest in the Company pursuant to this Article 5.7, (i) each Party agrees to assist in applying for the record‑filing and registration with MOFCOM (if applicable) and SAMR required for the completion of such Transfer, and (ii) each Party shall do and perform, or cause to be done and performed, all such further acts and things and shall execute and deliver all such other agreements, certificates, instruments and documents as necessary to give effect to the Transfer, including, without limitation, causing such Party’s appointed directors to timely approve such Transfer by executing relevant board resolution if so required by MOFCOM (if applicable) and SAMR, and any corresponding amendments to this Contract and the Articles
of Association.
Each Party shall have the right to Transfer all or part of its Equity Interest in the Company
to an Affiliate, and each Party hereby consents to any such Transfer and waives any right of first refusal that it might otherwise have under this Article 5.7.
All
technology, know-how, techniques, trade secrets, trade practices, methods, specifications, designs and other proprietary information disclosed by any Party or any of its Affiliates to the Company under the terms of this Contract or any of the Related Agreements or otherwise, or developed by the Company, as well as the terms of this Contract and other confidential business and technical information (collectively, “Confidential Information”) shall be used by the Company and its personnel
solely for the Company’s account and purposes. Each Party and the Company shall maintain the secrecy of all Confidential Information that may be disclosed or furnished to it by the Company or the other Parties or any of their Affiliates, and it shall not disclose or reveal any such Confidential Information to any third party absent explicit written authorization from the Board or the relevant Party or its Affiliate(s), as the case may be.
Confidential
Information obtained by, but not belonging to, a Party or its Affiliates may be disclosed by that Party only to its designated employees whose duties require such disclosure for the implementation of this Contract. In that event, the receiving Party shall take all reasonable precautions, including the execution of a confidentiality agreement with each such employee to prevent such employees from using Confidential Information for their personal benefit and to prevent any unauthorized disclosure of such Confidential Information to any third party.
The
Parties shall also ensure that the Company shall take all reasonable precautions, including the execution of confidentiality agreements with its employees, to prevent its employees from using Confidential Information for their personal benefit and to prevent any unauthorized disclosure of such Confidential Information to any third party.
(d)
尽管有上述规定༌接收方在第6.1条项下义务༈在某种程度上༉不适用于满足以下条件的保密信息༚
Notwithstanding
the foregoing, the receiving Party’s obligations pursuant to this Article 6.1 will not apply to the extent any Confidential Information:
(i)
并非因接收方的行为或疏忽༌导致保密信息当前或此后由公众所知或由公众所用༛
is now or hereafter becomes generally known or available to the public, through no act or omission on the part of the receiving Party;
(ii)
在从披露方收到信息前༌接收方已知晓保密信息༌且无使用或披露方面限制༛
was
known, without restriction as to use or disclosure, by the receiving Party prior to receiving such information from the disclosing Party;
(iii)
保密信息由接收方从第三方获得༌该第三方有权进行披露༌且披露的信息不存在使用或披露方面的限制༛或者
is rightfully acquired by the Receiving Party from a third party who has the right to disclose it and who provides it without restriction as to use or disclosure; or
(iv)
由接收方在未使用披露方保密信息的情况下༌独立开发的保密信息。
is
independently developed by the Receiving Party without access to any Confidential Information of the Disclosing party.
Notwithstanding
the foregoing, the Company may, with prior written approval of the Party or its Affiliate(s) who disclosed the Confidential Information, reveal Confidential Information to government authorities, relevant stock exchange or other competent authorities to the extent necessary to obtain any required governmental approval, or to the extent as required by relevant laws, rules of any stock exchange, and any government authority or other competent authorities that have jurisdiction over any Party hereto, and to outside lawyers, accountants and consultants to the extent necessary for them to provide their professional assistance, provided that such outside advisors shall be requested to undertake to respect the confidentiality provisions of this Contract and each of the Related Agreements.
(f)
接收方在本条中的保密义务在[***]内始终有效。
The
Receiving Party’s confidentiality obligation in this Section shall be in effect for [***].
No
Party may make any announcement, have any public communication or issue any circular in connection with the existence of or the transactions contemplated by this Contract or any Related Contract without the other Parties’ prior written consent of the format and content of the relevant announcement, public communication or circular, unless any applicable law or the rules of any stock exchange require public disclosure of the existence of or the transactions contemplated by this Contract or any Related Contract. If a Party makes any announcement in accordance with the applicable law or the rules of any stock
exchange, to the extent practicable and permitted by the applicable law or the rules of such stock exchange, such Party shall provide the content of the relevant announcement to the other Parties as soon as practicable before it is made.
The
Company shall have a Board consisting of five (5) directors and shareholders with an amount of contributed capital reaching [***] of the registered capital of the Company have the right of appointing directors to the Company, but Ekso Bionics shall have the right to appoint one (1) director in any cases. The Board’s composition is as follows: (i) Youchuang shall have the right to appoint two (2) directors; (ii) Industrial Investment Fund shall have the right to appoint one (1) director; (iii) Ekso Bionics shall have the right to appoint one (1) director; and (iv) the fifth director shall be appointed by Youchuang and Ekso Bionics jointly with Youchuang having the right to make a final decision. The fifth director shall serve as the President, Chief Executive Officer and General Manager of the
Company. The term of office for each director shall be three (3) years renewable upon reappointment by the appointing Party.
If
a seat on the Board is vacated by the retirement, resignation, illness, loss of capacity or death of a director, or by the removal of such director by the Party that originally appointed him or her, the original appointing Party or Parties may appoint a successor to serve as director for the remaining term whose seat is vacated, and notify the Company and the other Parties in writing of the name of the successor,
(c)
优创应从其任命董事中选取一名董事༌担任董事会主席一职。
The
Chairman of the Board shall be designated by Youchuang from the directors appointed by it.
The
Board shall be the highest authority of the Company, and shall direct the overall management, supervision and control of the business of the Company. Accordingly, in addition to any other powers of the Board specified elsewhere in this Contract, the Board shall make decisions regarding the following matters:
approval
of trademark license, technology cooperation, transfer, assignment, license or disposal of any technologies contributed or licensed by Ekso Bionics such as the Patent Rights and/or Licensed Technologies, to Youchuang, the Industrial Investment Fund, or any third parties, except for those arrangement under the Related Agreements;
any
decisions to issue bonds or to borrow funds from any financial institution or any Person which, together with all then existing indebtedness (long and short term both included) will reach [***] percent of the cumulative aggregate of the Company’s paid‑up capital and reserves;
(l)
除非本合同另有约定༌决定收购出售或者托管公司业务或固定资产༛
except as prescribed otherwise in this Contract,
any decisions to acquire, dispose of or place in custody of Company’s business or fixed assets;
Except for this Contract
or any commercial arrangements previously agreed in written by the Parties, any contract or agreement between the Company and any Party or its Affiliates that exceeds [***] cumulative in an accounting year as well as any amendments or modifications to any of such contract or agreement;
appointment
and dismissal of the Company’s Independent Auditor, but when the nominated Independent Auditor is equipped with relevant qualifications and experience, directors shall not veto the appointment of such Independent Auditor unreasonably;
(o)
提起或解决任何争议金额超过[***]的诉讼或仲裁༛
commencement or settlement of any litigation or arbitration with the amount in dispute involving sums of more than [***];
(p)
金额超过[***]的抵押、质押、留置或任何其他产权负担或任何担保[***]༛
provision
of any mortgage, pledge, lien or any other encumbrance or any guarantee by the Company with the amount of more than [***].
(q)
新加入任何股东༈合同各方的全资子公司或关联方除外༉༛
acceptance of any new shareholder, except for a wholly-owned subsidiary or of affiliate of the Parties, into the Company;
(r)
根据第14.2条规定延长合营期限༛
the
extension of Joint Venture Term in accordance with Article 14.2;
(s)
根据第23.1条规定修订本合同及相关协议༛
modifications to this Contract and the Related Agreements as provided in Article 23.1.
(t)
后续股权融资方案༛
follow-up
equity financing plan;
(u)
员工股权激励方案༛
Employee equity incentive plan;
(v)
向其他第三方出租不动产
leasing real estates to any third parties
(w)
公司保险投保和续保༛
procurement
and maintenance of the Company’s insurance;
(x)
任命和解雇高级管理人员及决定其薪酬和福利༌以及变更相关人员的职责和权限༛
appointment and dismissal of the Senior Management Personnel and their compensation and benefits, and any changes to their respective roles and authority;
(y)
批准公司年度经营计划以及经审计的年度财务报表༛
approval
of the annual operating plan and approval of the Company’s audited annual financial statements.
(z)
提起或解决任何争议金额超过[***]的诉讼或仲裁༛
commencement or settlement of any litigation or arbitration with the amount in dispute involving sums of more than [***];
Board
Decisions; Actions Requiring Unanimous Consent. Unless otherwise provided in this Contract and the Articles of Association, decisions of the Board shall be made by more than one half (1/2) of those directors voting in person or represented by proxy at a duly constituted and convened meeting (either in person, or by telephone, video-conference or any other electronic means by which all participants may speak to and hear each other) of the Board; provided, however, that resolutions involving those matters described in [***] may only be adopted at a duly constituted and convened meeting of the Board upon the unanimous affirmative vote of each and every director of the Board voting in person or by proxy at such meeting (either in person, or by telephone, video-conference
or any other electronic means by which all participants may speak to and hear each other). Notwithstanding anything to the contrary in this Contract, in particular, as to Board meetings where the matters described in Article 7.2 (j) on disposal of the intellectual property right by the Company would be decided, the director appointed by Ekso Bionics must attend such Board meetings (either in person, or by telephone, video-conference or any other electronic means by which all participants may speak to and hear each other) and vote in favor of such matters, otherwise the Board resolutions in connection with the matters in Article 7.2(j) are void and invalid.
The
Chairman. The Chairman shall exercise his authority within the limits prescribed by the Board and may not under any circumstances contractually bind the Company or otherwise take any action on behalf of the Company without the prior written authorization of the Board. If the Chairman for any reason is unable to perform his or her duties, he shall authorize one director to carry out his duties.
Meetings. Regular
meetings of the Board shall be convened at least [***] times each year. Meetings shall be called and presided over by the Chairman. The Chairman shall convene a special meeting of the Board at any time upon a motion of at least [***] directors. Notice of meetings shall be given and distributed effectively, which means that the notice of Board meeting shall be issued and delivered at least using the methods prescribed under Article 23.3 (b), (d) and (e) concurrently, or either of those methods if the recipient has expressly confirmed the receipt of the notice. A record shall be kept of the minutes of all Board meetings in accordance with the requirements of the Articles of Association. Board meetings may be held either in person or by telephone, video-conference or any other electronic means of communication by which all participants may speak to and hear each other. All the
Board documents, including without limitation, Board meeting notices, minutes and Board resolutions, shall be prepared in both Chinese and English.
General
Manager’s Report. At each meeting of the Board, unless waived unanimously by the Board, the General Manager shall report fully to the Board with respect to the current status of the operations of the Company and with respect to all major developments or planned actions involving the Company and shall present to the meeting complete current financial information with respect to the Company. In particular, the General Manager is obliged to report in detail at each board meeting on each contract or agreement between the
Company and any Party or its Affiliates (regardless of the amount) that occurred during the period since the last board meeting, except for the commercial arrangement under the Related Agreements.
Quorum. Subject
to the condition that the Board meeting notice has been effectively delivered to the directors according to Article 7.5, a Board meeting shall not be convened unless one- half (1/2) of all the directors attend the Board meeting, otherwise, no matters shall be transacted at any Board meeting.
Written
Consents. Any action requiring the vote of the Board may be taken without a meeting if all members of the Board consent in writing to such action. Such written consents shall be filed with the minutes of the Board and other records of the Company and shall have the same force and effect as a vote taken by members physically present.
No
Personal Liability. No director or Senior Management Personnel shall have any liability for their acts when performing their duties as a director or Senior Management Personnel representing the Company, except for such acts in violation of PRC criminal laws. The Company shall indemnify each director and member of Senior Management Personnel against any claims made against such director or Senior Management Personnel in relation to acts performed in carrying out his duties as a director or Senior Management Personnel representing the Company (except for acts in violation of any PRC criminal laws).
The
Senior Management Personnel shall be responsible for the Company’s daily operations. The Senior Management Personnel shall be composed of the General Manager, who also serves as President and Chief Executive Officer of the Company, and the Chief Financial Officer.
The
General Manager shall be mutually nominated by Ekso Bionics and Youchuang where Youchuang has the right to make a final decision, and approved by the Board. The [***] will be the legal representative of the Company. The Chief Financial Officer shall be nominated by Youchuang, and shall be approved by the Board.
(c)
董事会应正式任命各高级管理人员༌并确定其薪酬。
The Board shall formally appoint each member of the Senior Management Personnel and determine their remunerations.
General
Manager. The General Manager shall implement the resolutions of the Board and have the full authority to (i) organize and lead the daily operations and commercial sales activities of the Company in accordance with each Annual Business Plan including without limitation the signing of contracts on behalf of the Company, (ii) provide direction to and supervise the other management personnel with respect to the performance of their roles, (iii) be responsible for all technical issues involved in the manufacturing management and product manufacturing of the Company and the management of sourcing activities, and (iv) be responsible
for the following:
(i)
负责公司日常运营管理༌组织实施董事会决议༛
being in charge of the management of the Company’s day-to-day operations, and organizing the implementation of the resolutions of the Board;
(ii)
组织编制公司年度经营计划༌其中包括批准年度财务预算和执行董事会批准的年度经营计划༛
organizing
the preparation of the Company’s Annual Business Plans, which would also include approval of the annual financial budget and the implementation of the Annual Business Plans approved by the Board;
(iii)
制定公司管理结构和制度༛
formulating the Company’s management structure and system;
(iv)
与其他管理人员共同编制公司基本行政管理规则和主要政策༛
preparing,
with other management personnel, the Company’s basic management rules of administration and main policies;
(v)
雇用或解雇除高级管理人员外的其他管理人员༌高级管理人员由合同各方根据第8.1条之规定任命༛
hiring or dismissing management personnel other than the Senior Management Personnel that shall be nominated by the Parties pursuant to Article 8.1;
bringing
transferred and licensed technology into the Company at the initial state of the Joint Venture Term, organizing the technical training for employees, making technical preparation for the Company’s manufacturing, managing the construction of the Company’s facilities, equipment installation and commissioning pursuant to the agreed technical standards, and managing the Company’s manufacturing techniques and technical improvement after the Company commences its normal production (including technical improvement of plants and equipment);
(vii)
负责产品在药监局的注册༌以及相关政府当局的联络和配合工作༛
taking
responsibilities of product NMPA registration and the contact and coordination with the Governmental Authorities;
(viii)
决定在公司日常经营中现有产品的出租༛以及
deciding to lease the Current Products during daily ordinary business operation at market price; and
Chief Financial Officer. The Chief Financial Officer shall perform his or her
duties under the leadership of the General Manager. The duties of the Chief Financial Officer shall include, without limitation, the following:
(i)
雇用、解雇并监督所有财务和会计人员༛
hiring, dismissing and supervising all financial and accounting personnel;
(ii)
审核并批准会计账簿༛
reviewing
and approving accounting books;
(iii)
编制并提交年度预算以供公司批准༛
preparing and submitting annual budget for approval by the Company;
(iv)
根据公司管理权限༌批准公司支出༛
approving
the expenditures of the Company according to the management authority limitations of the Company;
(v)
向总经理和董事会汇报重大财务问题和支出༛
reporting to the General Manager and the Board on major financial issues and expenditure
(vi)
提议发行债券或向任何金融机构或任何人借款༛
proposing
to issue bonds or to borrow funds from any financial institution or any Person;
(vii)
根据第11.8条规定向总经理和董事会提交报告༛以及
submitting reports to the General Manager and the Board in accordance with Article 11.8; and
(viii)
总经理和董事会指示的其他职责。
other
duties as directed by the General Manager and the Board.
In
case of a material breach of duty, or for any other reasonable reason, the Senior Management Personnel may be removed and replaced at any time upon resolution of the Board, and the Party that nominates such member of Senior Management Personnel shall nominates a replacement. Notwithstanding the foregoing, if such person is nominated by a Party to the Company, when he/she commits a material breach of duty, upon reasonable request of the other Party (the Chinese Shareholders shall be treated as one Party under this Article 8.3), such Party shall remove such person from such secondment and nominee a replacement.
If
any Senior Management Personnel is discharged or departs for any reason, a successor shall be nominated, appointed or selected in the same manner as the original appointee.
Compensation
and Benefits. The compensation and benefits of other Senior Management Personnel of the Company shall be approved by the Board and paid by the Company. The compensation and benefits of the other personnel hired directly by the Company shall be determined according to the policies of the Company and commensurate with their expertise and experience in accordance with the established local standards and applicable laws of the PRC.
第九条 监事
ARTICLE
IX SUPERVISORS
9.1
中方股东和爱科索各自指定一༈1༉名监事。
Chinese Shareholders and Ekso Bionics shall each appoint one (1) Supervisor.
9.2
监事应履行下列职责༚
The Supervisors shall
exercise the following duties:
supervise the behaviour of the Board and Senior Management Personnel in the performance of their duties, and propose the dismissal of any such person who violates any law, the Articles
of Association, the policies of the Company or any resolution of the Board;
(ii)
要求任何董事或高级管理人员纠正其导致公司利益受损的任何不当行为༛
demand any director, or Senior Management Personnel to correct any misconduct of such person if such misconduct has caused damage to the interests of the Company;
(iii)
根据《中华人民共和国公司法》针对董事或高级管理人员提起诉讼༛以及
file
litigation against the directors or Senior Management Personnel in accordance with the PRC Company Law; and
(iv)
行使《中华人民共和国公司法》和公司章程规定的其他职责和权力。
exercise other duties and powers specified in the PRC Company Law and the Articles of Association.
Each
Supervisor shall serve for a term of [***]. At the time of expiration of his or her term, a Supervisor may be reappointed. The appointment and dismissal of Supervisors is at the sole discretion of the Party appointing them, provided that any directors and Senior Management Personnel shall not serve simultaneously as Supervisors. Supervisors shall not enjoy any remuneration from the Company as a result of their status as a Supervisor.
9.4
监事可以无投票权身份参加董事会会议༌并就董事会会议议程事宜提问或提出建议。
Supervisors
may attend meetings of the Board in a non-voting capacity, and submit inquiries or suggestions regarding items in the Board meeting agenda.
If
the Supervisors discover irregularities in the operations of the Company, they may conduct an investigation. When necessary, the Supervisors may engage an accounting firm or other professional bodies to assist them in their work. The reasonable expenses needed by the supervisor to safeguard the interests of the Company during the performance of his/her duties shall be borne by the Company
Unless
the Parties otherwise agree, the Company shall have the right to recruit and hire employees directly from any available sources in the PRC and elsewhere. In all cases, the Company shall be free to select all its employees in accordance with its standards and requirements, and shall employ only those persons who are sufficiently qualified for employment.
Each
Party shall make their best efforts to provide the Company with its support for the Company to hire qualified employees and shall second or recommend and cause its relevant Affiliates to second or recommend its qualified employees to the Company.
All
matters concerning labor management of those employees directly hired by the Company, including labor union matters, the conclusion of individual labor contracts between the Company and its employees and the recruitment, compensation, dismissal, welfare benefits and labor insurance of employees shall be handled in accordance with applicable Chinese labor laws and regulations.
The
Company shall sign an individual labor contract with each of its employees, except for Senior Management Personnel and other personnel dispatched by the Parties or their Affiliates pursuant to an appropriate secondment agreement. Each individual labor contract shall include the agreement reached between the Company and the employee concerning the type of work, technical ability requirements, compensation and benefits of such employee. The total amount of annual salaries and bonuses shall be determined according to the policies of the Company formulated in accordance with applicable Chinese labor laws and regulations.
The
Company’s employees shall have the right to establish a labor union in accordance with Chinese labor union laws and regulations. If a labor union is organized, the Company shall comply with all applicable labor union laws and regulations, as in effect from time to time.
Taxation. The
Company and each Party shall be responsible for taxes incurred by virtue of its entering into this Contract and establishment of the Company in compliance with applicable national and local laws and regulations of the PRC, agreements between the governments of the PRC and any relevant country or multilateral agreements to which the PRC is a party.
The
Company shall establish a financial and accounting system (the “Financial and Accounting System”) in accordance with PRC laws and regulations, this Contract and the Articles of Association and in a manner sufficient to satisfy the China Accounting Standards for Business Enterprises and can provide financial statements and audit reports in accordance with the USA Generally Accepted Accounting Principles (“USA GAAP”) and USA Generally Accepted Audit Standards. Financial statements prepared by or for the Company shall be in Chinese and English.
The
Financial and Accounting System shall be implemented after being approved by the Board. The Board by unanimous votes must consider a strong internal accounting and reporting controls, a robust Enterprise Resource Planning (“ERP”) system, and qualified personnel in its approval of the Financial and Accounting System. Changes to accounting procedures and practices shall be implemented only after being approved by one-half (1/2) the Board.
In
order to meet the financial reporting requirements of the Parties, the Company shall, at the expense of the Company, prepare at a minimum on a [***] basis and in the manner required such financial information as is required by Chinese Shareholders or Ekso Bionics, including financial forecasts as may be requested by either of the Parties to support their operational reporting requirements. Such financial information must be provided to the Parties on the after each [***] on a timely manner, that should meet the information disclosure requirements applicable to Ekso Bionics Holdings, Inc., as a public company in the USA.
Books. All
account books of the Company shall be made available for inspection or audit by any Party or its representatives at all reasonable times. Each Party shall have the right at any time to retain independent accountants to audit the books and records of the Company at its own expense (unless the results of any such audit are significantly different from that conducted by the Independent Auditor and are accepted by the Board, in which case the expense shall be borne by the Company). The Company shall extend full cooperation to any such accountants, and shall allow them full access to the books and records of the
Company. The records of the Company shall be kept in accordance with relevant PRC laws and regulations.
Independent
Auditor. The Board shall select a qualified accounting firm registered in China This accounting firm (who shall not be the auditor of any Party)is the independent auditor of the Company (the “Independent Auditor”) to conduct audits of the Company . The audit firm who meets the requisite criteria shall be appointed as the initial Independent Auditor of the Company. In the event that the Board determines that the Independent Auditor is unable to meet the requisite standards, it may replace such Independent Auditor, or retain another auditor, at Company expense, to supplement or adjust the work of the Independent Auditor or to perform specific
accounting and auditing tasks.
Currency. The Company shall use Renminbi as its accounting unit. The conversion of foreign currencies into Renminbi for accounting purposes shall be calculated according to the average of the buying and selling rates quoted by the People’s Bank of China for the relevant currency on the date of the relevant transaction (except
as otherwise provided herein). In principle, except for foreign currency payments prescribed in the Joint Venture Contract, the Articles of Association or other agreements signed by the Joint Venture, all payments (including but not limited to the labour costs and remuneration to personnel other than foreigners) by the Joint Venture in China shall be settled and paid by the Joint Venture in the currency of Renminbi.
Bank
Accounts. The Joint Venture shall open Renminbi bank accounts and foreign currency bank accounts in accordance with the laws of the PRC. If necessary and approved by the Board, the Company may also open foreign currency bank accounts outside of the PRC in accordance with relevant PRC foreign exchange laws and regulations.
Fiscal
Year. The fiscal year of the Company shall begin on January 1 (or on the Establishment Date in the case of the first fiscal year) and end on December 31 of each year (or, in the case of the final fiscal year, on the date of dissolution of the Company in accordance with the provisions of this Contract).
Reporting. The
Chief Financial Officer of the Company shall present [***] management reports and [***] financial statements of the Company for the General Manager’s and the Board’s review. An annual audit of the books and statements of the Company shall be made by the Independent Auditor and provided to Ekso Bionics and Industrial Investment Fund on a timely basis provided however that should meet the information disclosure requirements applicable to Ekso Bionics Holdings, Inc., as a public company in the USA and the standardized operation requirements of the Industrial Investment Fund.
11.9
折旧。公司所有固定资产应均按照中国会计制度以及适用税务法律法规有关规定在资产使用寿命内计提折旧。
Depreciation. All
fixed assets of the Company shall be depreciated over the useful life of the assets in accordance with Chinese Accounting System and relevant provisions of applicable tax laws and regulations.
11.10
三大基金。公司将税后利润分配至董事会确定的储备基金、发展基金和员工奖金福利基金。
Three Funds. The
Company shall make allocations of after tax profits to its reserve fund, expansion fund and employee bonus and welfare fund, as determined by the Board.
11.11
利润。
Profits.
(a)
公司应按照财务会计制度༌于每[***]确定税后可分配利润的数额。
The
Company shall determine the amount of its after-tax distributable profit, in accordance with the Financial and Accounting System, on [***] basis.
(b)
分配三大基金的金额༈由董事会确定༉应在税后利润分配༈或再投资༉前拨出。
The contributions to the three funds, as determined by the Board, shall be set aside prior to any distribution (or reinvestment) of after-tax profit.
(c)
董事会应根据公司生产经营情况༌决定是否向股东分配利润。
The
Board shall determine on whether to distribute profits to shareholders based on the production and operation status of the Company.
Budgets. Each
Annual Business Plan shall include detailed budgets for the ensuing fiscal year, including at a minimum operational targets, a financial budget, a plan for capital investments, dispositions and borrowings, a technical support plan, forecasts of price levels, sales, expenses, earnings and distributable profits, and such other items as are required for production and business operations.
第十二条外汇
ARTICLE XII FOREIGN EXCHANGE
12.1
概述。公司一切外汇事宜༌应按中华人民共和国相关外汇法律和法规办理。
General. All
foreign exchange matters of the Company shall be handled in accordance with the relevant foreign exchange laws and regulations of the PRC.
12.2
获取外币。公司成立后༌应立即在国家外汇局登记༌以便在指定银行开立外汇账户并购买外币。
Access to Foreign Currency. Promptly after the establishment of the
Company, the Company shall register with the SAFE so as to be able to open foreign exchange accounts with and to purchase foreign currency from the Designated Banks.
Insurance. The
Company shall purchase and maintain various insurance from reputable insurance companies within the PRC to fully and adequately cover the Company against loss or damage by fire and such other risks as are customarily insured against.
Joint
Venture Term. The Joint Venture Term shall be [***] commencing on the Establishment Date and ending on the [***] anniversary of such date unless extended pursuant to Article 14.2 or terminated earlier in accordance with Article XV.
Extension. Prior
to the expiration of the Joint Venture Term, or any extension thereof, the Parties shall discuss in good faith about the further development of the Company. The Parties may agree to extend such term. Negotiations for such extension shall begin at least [***] prior to the expiration of the Joint Venture Term or the extension thereof. If such negotiations conclude successfully, the Parties shall [***].
Termination. This
Contract shall terminate when through the application of Article 5.7 (b) one of the Parties becomes the beneficial owner of all of the Equity Interest in the registered capital of the Company. In addition, one Party may give a written notice of termination (“Termination Notice”) to the other Party (the Chinese Shareholders shall be treated as one Party under this Article 15) at any time upon the occurrence of any of the following events:
the
other Party materially breaches this Contract and fails to remedy [***] of receipt of notice thereof any material breach or non-performance of its obligations under this Contract;
(b)
另一方单方面违反本合同第5.7条转让规定和限制༌转让其在合资公司的股权༛
upon a transfer by the other Party arbitrarily of its
Equity Interest in the Company in violation of the transfer provisions and restrictions set forth in Article 5.7;
(c)
合同另一方破产或遭遇清算或解散༌停止运营或无力偿还到期债务༛
the other Party becomes bankrupt, or is the subject of proceedings for liquidation or dissolution, or ceases to carry on business or becomes unable to pay its debts as they come due;
(d)
公司遭受重大损失༈就本条而言༌“重大损失”是指累计损失超过公司注册资本的损失༉༛
the
Company suffers material losses (for the purpose of this clause, “material loss” means accumulated losses amounting to more than the registered capital of the Company);
(e)
公司全部或任何重大资产[***]由任何政府当局以任何理由从公司提取༛
all or any material portion of the assets of the Company, [***] are taken from the
Company by any government authority for whatever reason;
any
Governmental Authority requires any provision of this Contract or the Articles of Association, the Related Agreements or the Company’s Business License to be revised in such a way as to cause significant adverse consequences to the Company or any Party, or any change to or new provision of PRC law that materially adversely impacts the economic interests of one of the Parties set forth in Article 16.2(b) has occurred, and the Parties cannot agree upon amendments to maintain the affected Party’s economic benefits;
the
conditions or consequences of any Event of Force Majeure significantly interfere with the normal functioning of the Company for a period in excess of [***] and the Parties have been unable to find an equitable solution pursuant to Article 18.1 hereof;
any
approval, permit, license, certificate or right materially affecting the Company’s ability to conduct full scope of activities contemplated in Article 4.2 is rescinded, amended in a materially adverse manner, or is not renewed upon expiration, and such situation cannot be rectified to the mutual satisfaction of the Parties within [***] thereof; and
如合同一方根据本合同第15.1条发出终止通知༌[***]合同各方应[***]。
In the event that one Party gives a Termination Notice pursuant to Article 15.1 hereof, the Parties shall, [***].
Effect of Termination. In the event that (a) the Parties mutually agree to terminate this Contract, (b) this Contract is terminated pursuant to Article 15.1 hereof, or (c) the Joint Venture Term expires or is not extended pursuant to Article 14.2 hereof, the Company shall be dissolved after the approval of the Board.
In
the event that the Company must be liquidated, within [***] after the dissolution of the Company is approved by the Board, the Parties shall set up a liquidation committee (the “Liquidation Committee”) with the power to represent the Company in all legal matters. The Liquidation Committee shall value and liquidate the Company’s assets in accordance with the applicable PRC laws and regulations and the principles set out herein.
The Liquidation Committee shall be composed of the Parties and each Party shall appoint a representative to carry out its rights and obligation in the Liquidation Committee. The representatives of the members of the Liquidation Committee may, but need not be, the directors of the Company. Professional advisers, including accountants and lawyers qualified either in the PRC or abroad, may be appointed to be representatives of the members of or to
assist the Liquidation Committee. The Liquidation Committee shall make decisions with unanimous votes of all the members (representatives of each Party).
The
Liquidation Committee shall conduct a thorough examination of the Company’s assets and liabilities, on the basis of which it shall, in accordance with the relevant provisions of this Contract, develop a liquidation plan that, if approved by the Board, shall be executed by the Liquidation Committee. The liquidation plan shall provide that the Parties will have a priority right, assuming equal price and other terms, over third parties to purchase any of the Company’s machinery, equipment and other facilities, and further that Ekso Bionics shall have a priority right to purchase the technologies originally contributed by it, and intellectual property rights which are derived or developed from the Technology
License Agreement.
(d)
制定和执行清算计划时༌清算委员会应尽一切努力为公司资产争取尽可能高的人民币价格。
In developing and executing the liquidation plan, the Liquidation Committee shall use every effort to obtain the highest possible price in RMB for the Company’s assets.
The Confidential Information made available to the Company under the Technology License Agreement shall not be deemed an asset of the Company for purposes of liquidation proceedings, and may not be transferred but shall be either returned or destroyed as provided for in the Technology License Agreement.
(f)
应从公司资产中优先支付༈相对于其他债权人༉清算费用༌包括清算委员会成员和顾问报酬༉。
The
liquidation expenses, including remuneration of members and advisors to the Liquidation Committee, shall be paid out of the Company’s assets in priority over the claims of other creditors.
After
the liquidation of the Company’s assets and the settlement of all of its outstanding debts, as long as the Company is solvent, the Company distributes its assets in the following way: [***]; and (iii) if after item (ii) there is surplus of liquidated assets, then such assets shall be distributed to all the Parties in proportion to their then respective percentage of the registered capital of the Company. [***]
On
completion of all liquidation procedures, the Liquidation Committee shall prepare a final report for the Board to approve, submit the approved report to MOFCOM (if required), surrender the Company’s Business License to the original registration authority and complete all other formalities for closing the Company’s accounting books and other documents at its own expenses.
With
respect to the Renminbi portion of the balance to be distributed to Ekso Bionics under paragraph (g) above, the Liquidation Committee shall assist Ekso Bionics in obtaining approval from the relevant Government Authorities of the PRC, and purchasing US dollars by Renminbi at the most favourable prices through Designated Banks in the PRC or through other means permitted under PRC law, and assist Ekso Bionics in remitting such money out of China.
15.4
其他义务。合同各方特此同意༌促使其指定董事以符合第十五条规定的方式行事。
Further
Obligations. The Parties hereby agree to cause their appointed directors to act in such manner as to give effect to the provisions of this Article XV.
During
the Joint Venture Term, without the prior written consent of Ekso Bionics, Youchuang shall not, and shall cause the Company not to, directly or indirectly (through any Affiliate or otherwise),:
develop, operate, manufacture, control, distribute or
invest in any business, products or technologies competing with Ekso Bionics other than the business of the Company within [***];
advise
or assist in any way, whether or not for consideration, any competitor in any aspect of the business of Ekso Bionics, including advertising or otherwise endorsing the products or services of any such competitor, soliciting customers or otherwise serving as an intermediary for any such competitor or loaning money or rendering any other form of financial assistance to any such competitor;
solicit, hire, induce or otherwise offer employment or engagement as an independent contractor to, or engage in discussions regarding employment or engagement as an independent contractor with, any person who is or was an employee, commissioned salesperson or consultant of, or who performed similar services for, Ekso Bionics, or assist any third party with respect to any of the foregoing, unless such person has been separated from his or her employment or other relationship with Ekso Bionics and each of their respective Affiliates for a period of [***]; or
(d)
从事任何旨在逃避本合同有关竞业禁止规定的行为。
engage
in any practice the purpose or effect of which is to evade the provisions of this covenant not to compete.
For [***] after the termination or expiration of this Contract, without the prior written consent of Ekso Bionics, Youchuang shall not develop, operate, manufacture, control,
distribute or invest in any business, products or technologies competing with Ekso Bionics.
Notwithstanding the foregoing, after the Company [***], or organize and hire its own personnel to sell current products and developed products in the territory. If the
company does not acquire [***], then [***]will be able to continue to operate in the local area.)
Prior to the time when the Company has the necessary qualifications, registrations and licenses to supply Ekso products in the Territory and to consider the above options, Ekso Asia will be entitled to sell the
Current Products [***].
16.2
合营期间༌ 产业投资基金不得从事以下活动༚
During the Joint Venture Term, Industrial Investment Fund shall not:
develop,
operate, manufacture, control, distribute or invest in any business, products or technologies competing with the Current Products other than the business of the Company within the Territory;
advise
or assist in any way, whether or not for consideration, any competitor in any aspect of the business of Ekso Bionics, including advertising or otherwise endorsing the products or services of any such competitor, soliciting customers or otherwise serving as an intermediary for any such competitor or loaning money or rendering any other form of financial assistance to any such competitor;
solicit, hire, induce or otherwise offer employment or engagement as an independent contractor to, or engage in discussions regarding employment or engagement as an independent contractor with, any person who is or was an employee, commissioned salesperson or consultant of, or who performed similar services for, Ekso Bionics, or assist any third party with respect to any of the foregoing, unless such person has been separated from his or her employment or other relationship with Ekso Bionics and each of their respective Affiliates for a period of [***]; or
(d)
从事任何旨在规避本合同有关竞业禁止义务的行为。
engage
in any practice the purpose or effect of which is to evade the provisions of this covenant not to compete.
For [***] after the termination or expiration of this Contract, without the prior written consent of Ekso Bionics, Industrial Investment Fund shall
not develop, operate, manufacture, control, distribute or invest in any business, products or technologies competing with Ekso Bionics.
The
personnel designated or appointed by Industrial Investment Fund who are involved in the decision-making, researching, auditing or any other activities or actions of the Company shall not have access to any core technologies of the Company, including but without limitation design drawings, technology parameters, patents, software source codes, parameters of manufacturing processes, any important research and development achievement, key suppliers and clients resource, and such personnel shall enter into a confidentiality agreement with the Company. The Industrial Investment Fund shall in no event disclose, share or transfer any Confidential Information of the
Company or Ekso Bionics to the competing business or third parties, or do anything harmful or against the interest of the Company.
Change in Chinese Law. If, after the date this Contract is signed, any national or local Government Authorities of the PRC makes any change to any provision of any PRC national or local law, regulation, decree or provision, including amendment, supplementation or repeal of an existing law, regulation, decree or provision, or introduction of a different interpretation or method of implementation of an existing law, regulation, decree or provision (for the purpose of this Article 16.3, collectively, a “change”),
or promulgates a new law, regulation, decree or provision (for the purpose of this Article 16.3, collectively, a “new provision”):
If
the change or new provision is more favorable to the Company or either of the Parties than the relevant laws, regulations, decrees or provisions in effect on the date this Contract was signed (and the other Parties is not materially and adversely affected thereby), the Company and the Party concerned shall promptly apply to receive the benefits of such change or new provision. The Company and the Parties shall use their best efforts to cause such application to be approved.
If,
because of such change or new provision, any Party’s economic benefits under this Contract are materially and adversely affected, directly or indirectly, then, upon notice by the affected Party to the other Parties, the Parties shall consult promptly and make all such amendments to this Contract as are required to maintain the affected Party’s economic benefits hereunder.
If
the amendments provided for in paragraph (b) above cannot be agreed upon within [***] of the commencement of the consultation referred to in paragraph (b) above, and if such change or new provision is inconsistent with international practice, then such Party whose economic benefits under this Contract are materially and adversely affected may unilaterally terminate this Contract pursuant to Article 15.1.
Breach
of Contract. If a Party (to avoid any doubt, Youchuang and the Industrial Investment Fund are separate Parties) breaches any representation, warranty, obligation under this Contract and fails to correct such breach within [***] from receipt of notice thereof from the other Party or Parties, the breaching Party shall indemnify the other Parties for any losses caused by such breach. All Parties further agree that if any Party delays the capital contribution, has defective capital contribution, inadequate contribution or withdraws contribution arbitrarily, the performing Party shall be entitled to request the breaching Party to pay interest to the Company at the rate of [***] of
the delayed contribution. If any Party’s delay above mentioned circumstances in capital contribution results in the termination of the Company, the performing Party shall be entitled to [***].
No
Consequential Damages. In no event shall any Party be liable to the others for loss of profit or revenues, cost of capital or claims by the Company’s customers for any of the same, or for any special, consequential, incidental or indirect damages.
When
the obligations of a Party under this Contract cannot be performed in full or in part because of an event that is unforeseeable and the occurrence and consequences of which cannot be prevented or avoided, including earthquake, typhoon, flood, fire and other serious natural disasters, war, insurrection and similar military actions, civil unrest and strikes, slowdowns and other labor actions, acts of or failures to act by governments (an “Event of Force Majeure”), the liability of the Party that encounters such Event of Force Majeure (the “Hindered Party”) shall be released in full or in part in light of the impact of the event upon the performance of this Contact, if all of the following conditions are met:
(i)
不可抗力事件是中断、阻碍或延迟受影响方履行其在本合同项下义务的直接原因༛
The
Event of Force Majeure was the direct cause of the stoppage, impediment or delay encountered by the Hindered Party in performing its obligations under this Contract;
(ii)
受影响方已尽其合理努力履行其在本合同项下义务༌以减少因不可抗力事件而对其他方或公司造成的损失༛以及
The Hindered Party used its reasonable best efforts to perform
its obligations under this Contract and to reduce the losses to the other Parties or to the Company arising from the Event of Force Majeure; and
At
the time of the occurrence of the Event of Force Majeure, the Hindered Party immediately informed the other Parties, providing written information on such event within [***] of its occurrence, including a statement of the reasons for the delay in implementing or partial implementation of this Contract.
If
an Event of Force Majeure shall occur, the Parties shall consult and decide whether this Contract should be amended in light of the impact of the event upon the implementation hereof, and whether the Hindered Party’s obligations hereunder should be partially or fully released, reduced or delayed.
Governing
Law. The formation, validity, interpretation, execution, amendment and termination of and settlement of disputes under this Contract shall all be governed by the published laws and regulations of the PRC. When the published laws and regulations of the PRC do not cover a certain matter, international practices shall apply.
Any
dispute, controversy or claim arising out of or relating to the execution and performance of this Contract shall be resolved by friendly consultation between the Parties. Such consultation shall begin immediately after one Party has delivered to the other Parties a written request for such consultation. If within [***] following the date on which such notice is given the dispute cannot be resolved, the dispute shall be submitted to arbitration upon the request of any Party with written notice to the other Parties.
(b)
应根据当时有效的国际商会༈下文简称 “国际商会”༉调解与仲裁规则实施仲裁。仲裁地点为香港。
The
arbitration shall be conducted in Hong Kong by the then effective Rules of Conciliation and Arbitration of the International Chamber of Commerce (“ICC”).
The
arbitration proceedings shall be conducted in English and Chinese. If a translator is required during the arbitration proceedings, the Parties shall appoint an independent person to be entrusted by ICC as the official translator in accordance with the arbitration rules. The arbitration tribunal shall apply the ICC Rules of Conciliation and Arbitration in effect on the date when the dispute is submitted to the ICC; provided, however, that if such rules are in conflict with the provisions of this Article 20.1, including the provisions concerning the appointment of arbitrators, the provisions of this Article 20.1 shall prevail.
The
award of the arbitration tribunal shall be final and binding upon the Parties, and any Party may apply to a court of competent jurisdiction for enforcement of such award. [***]
Without prejudice to any Party’s right to seek emergency or interim relief in any arbitral proceeding initiated in accordance with the above-rules of arbitration, any Party may apply to a court of competent jurisdiction for interim or emergency relief, including conservatory measures of protection or a preliminary injunction.
20.2
其他不受影响的事宜。争议解决期间༌除争议事项外༌合同各方应继续履行本合同所有其他方面。
Other
Matters Unaffected. During the period when a dispute is being resolved, except for the matter being disputed, the Parties shall in all other respects continue their implementation of this Contract.
第二十一条 效力和语言
ARTICLE XXI EFFECTIVENESS AND LANGUAGE
21.1
效力。本合同自合同各方签署后生效。
Effectiveness. The
Contract shall come into legal effect upon signing by the Parties.
Language. This
Contract is written in Chinese and English in [six (6)] copies in each language. The two language texts shall have equal validity and legal effect. Each Party acknowledges that it has reviewed both language texts of this Contract and that they are substantially the same in all material respects.
In
the performance of activities under this Contract, the Parties agree to comply with applicable laws, including those of the PRC and the USA, In this connection the Parties recognize that the United States Foreign Corrupt Practices Act of 1977 as amended, prohibits the payment or giving of anything of value either directly or indirectly by a US company (which law encompasses situations where the US company is the holder of a minority interest in a foreign company) to any official of a foreign government for the purposes of influencing an act or decision in his or her official capacity or inducing him or her to use their influence with the foreign government to assist a company in obtaining or retaining business for or with or directing business to, any person. Accordingly, each Party hereto agrees that it will not pay, promise to pay, or authorize the payment of anything of value,
directly or indirectly, to any person (whether governmental official or private individual) for the purpose of illegally or improperly inducing any governmental official or any political party or official thereof or any candidate for political office to illegally or improperly assist in the operation of the Company in obtaining or retaining business, or to take any other action favorable to any Party. Each Party further agrees that it will take all reasonable steps to ensure that any of its agents or representatives associated with the operation of the Company shall comply with all laws which apply to the activities and obligations under this Agreement, including, but not limited to, those laws and obligations dealing with improper payments as described above.
Amendments. Amendments
to this Contract must be made by a written agreement signed by each of the Parties in both Chinese and English languages, each of which shall have equal validity and legal effect, and shall become effective upon the execution by duly authorized representatives of the Parties. The Parties may discuss to involve a third party to this Contract. If the Parties agree to involve such a third party, this Contract shall be updated to include such third party as an investor and reflect other terms and conditions agreed among the Parties and such third party.
Survival. The
agreements of the Parties contained in Article VI, XVII, Article XIX and XX shall continue to survive after the expiration or termination of this Contract and the dissolution of the Company.
Notices. Notices
or other communications required to be given by any Party or the Company pursuant to this Contract shall be written in English or Chinese and sent in letter form, facsimile or email to the address of the other Parties set forth below or to such other address as may from time to time be designated by the other Parties through notification to such Party, and to the Company at its legal address as in effect from time to time. Unless prescribed otherwise in this Contract, the dates on which notices shall be deemed to have been effectively given shall be determined as follows:
(a)
通过专人递送的通知应视为在专人递送之日有效送达༛
Notices
given by personal delivery shall be deemed effectively given on the date of personal delivery;
Notices given in letter form shall be deemed effectively given on the seventh day
after the date mailed (as indicated by the postmark) by registered airmail, postage prepaid, or the third day after delivery to an internationally recognized courier service; and
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(c)
通过传真方式发出的通知应在有关文件所示传真发送日期后的第一个营业日视为有效送达。
Notices given by facsimile shall be deemed effectively
given on the first business day following the date of transmission, as indicated on the document in question.
(d)
通过电子邮件方式发出的通知应在有关电子邮件所示电子邮件发送日期后的第一个营业日视为有效送达。
Notices given by emails shall be deemed effectively given on the first business day following the date of transmission, as indicated on the email system of the sender.
Notices
given by telephone shall be deemed effectively given on the date on which such telephone is effectively connected and answered (this method is only applicable to deliver Board meeting notice, as one of three methods to inform the directors).
优创
Youchuang
浙江优创创业投资有限公司
Zhejiang Youchuang Venture Capital Investment Co., Ltd.
Address
[***] [***]
收件人༚
Attention:
[***]
[***]
传真号码༚
Fax
Number:
[***]
电子邮件༚
Email༚
[***]
电话༚
Telephone:
[***]
产 业 投 资 基 金Industrial Investment Fund:
绍兴市柯桥区天堂硅谷智能机器人产业投资合伙企业༈有限合伙༉
Shaoxing
City Keqiao District Paradise Silicon Intelligent
Entire
Agreement. This Contract constitutes the complete and only agreement among the Parties on the subject matter of this Contract and replaces all previous oral or written agreements, contracts, understandings and communications of the Parties in respect of the subject matter of this Contract.
No
Implied Waivers. A Party that in a particular situation waives its rights in respect of a breach of contract by the other Parties shall not be deemed to have waived its rights against the other Parties for a similar breach of contract in other situations.
Severance. If
any provision of this Contract or part thereof is rendered void, illegal or unenforceable in any respect under any law, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby. Each Party hereby agrees that it will not allege the illegality or unenforceability of any provision of this Contract.
No
Assignment. This Contract shall be binding upon and shall be enforceable by each Party hereto and its respective successors and assigns. Except as otherwise permitted by
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the terms of this Contract, no Party may assign any of its rights or obligations hereunder to any person without the prior written approval of the other Parties.
Conflict
or Inconsistency. The rights and obligations of the Parties established by and under this Contract shall continue to exist throughout the Operation Term and shall not be prejudiced by the adoption of the Articles of Association. In the event of any conflict or inconsistency between this Contract and the Articles of Association, this Contract shall prevail.
【本页特意留白༌下页为签名页】
[The
remainder of this page is intentionally left blank; signature page follows]
本合同由合同各方授权代表在文首所载年份和日期签署。
This Contract is executed by the authorized representatives of the Parties, on the date and year first indicated above.
浙江优创创业投资有限公司༈公司印章༉
Zhejiang
Youchuang Venture Capital Investment Co., Ltd. (Company Seal)
签署人 By /s/ 吴建龙
姓名༚吴建龙 Name: Wu Jianlong
职务༚ Title:
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绍兴市柯桥区天堂硅谷智能机器人产业投资合伙企业༈有限合伙༉【公司印章】
Shaoxing
City Keqiao District Paradise Silicon Intelligent Robot Industrial Investment Partnership (Limited Partnership) 【Company Seal】