EXHIBIT 4.4
TRANSLATED FOR REFERENCE ONLY.
EXCLUSIVE TECHNOLOGY DEVELOPMENT, TECHNOLOGY SUPPORT AND
TECHNOLOGY SERVICES AGREEMENT
This "Exclusive Technology Development, Technology Support and Technology
Services Agreement" (hereinafter referred to as "this Agreement") is signed by
the following parties on 8 June 2007 in Beijing:
Party A: Aero-Biotech Science & Technology Co., Ltd.
Domicile: ▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇. ▇ Yuanda Road,
Haidian District, Beijing
Party B: Primalights III Agriculture Development Co., Ltd.
Domicile: Middle Area of Highway 73, Zhuang ▇▇ ▇▇▇▇▇ Village, Huanglingxiang
Upper Village, Xiaodian District, Taiyuan City
WHEREAS,
(1) Party A is a wholly foreign owned enterprise duly established and registered
according to the laws of People's Republic of China (hereinafter referred to as
"China", in this Agreement, excluding Hong Kong Special Administrative Region,
Macao Special Administrative Regions and Taiwan), its scope of business include:
research and development of biotechnology in seed growing, provide technology
transfer, technical consulting, technical service and technical training in seed
growing, possessing the professional staff who specialized in agricultural seed
growing development technology with practical experience.
(2) Party B is a limited liability company established and registered in
accordance with Chinese law in Taiyuan City, Shanxi Province, China. Its
business scope includes automation control greenhouse construction; yield
farmland development; demonstration plots; corn seed production; crop seeds
wholesale and retail; seedling seed production and wholesale and retail;
livestock; processing and marketing of agricultural side products.
(3) Party A agrees to provide exclusive technology development and related
services to Party B. Party B agrees to accept such services from Party A.
NOW, THEREFORE, the parties to this Agreement, by consensus, reached this
Agreement as follows:
1. EXCLUSIVE CONSULTANCY AND SERVICES; MONOPOLIZED AND EXCLUSIVE INTERESTS
1.1 During the term of this Agreement, Party A agrees to act as the exclusive
technology development, consulting and services provider, pursuant to the terms
and condition under this Agreement, to the extent permitted under Chinese laws,
to provide Party B the technology development, technical support and the related
technical services, including but not limited to :
(1) conduct research and development in biotechnology of seed growing deputed by
Party B;
(2) provide technical support to Party B as required;
(3) provide regular or ad hoc technology consulting services to Party B
(including but not limited to provide feasibility discussion session, technology
forecast, specific technology investigation, analysis evaluation report);
(4) conduct technical training for Party B's personnel;
(5) provide on-site technology guidance to Party B when Party B needs to hire
relevant technology personnel;
(6) assist Party B to carry out technology promotion, etc.
1.2 Party B agrees to accept the technology development, technical support and
related technical services provided by Party A, and Party B further agrees that,
unless with prior written consent of Party A, in this Agreement period, Party B
shall not accept any or part of the technology development, technical support
and services in connection with the abovementioned business provided by any
third party.
1.3 Party B should promptly provide to Party A the plans and arrangement
required for technology development, technical support or technical service.
2. CALCULATION, PAYMENT AND SECURITY OF TECHNOLOGY DEVELOPMENT AND SERVICE FEES
(HEREINAFTER REFERRED TO AS "TECHNOLOGY SERVICES FEES")
2.1 Both parties agree to calculate and pay the technical services fee under
this Agreement in accordance with the calculation formula and payment method
listed in Annex 1 hereto.
2.2 Both parties shall be responsible to pay their respective taxes payable in
accordance with the laws for signing or performing this Agreement. Party B, at
the request of Party A, shall make every effort to assist Party A to acquire the
sales tax exemption treatment in connection with all or part of the technical
service income under this Agreement, including but not limited to, the provision
of relevant documents and written agreements, in the format complied with the
requirements of the relevant science and technology authority department,
entered by Party A from time to time in connection with the scope of certain
services hereunder, but the execution of such documents shall be subjected to
the following conditions : (1) the provisions of such written agreement shall be
consistent with this Agreement in principle, and that it shall not contradict
with the provisions of this Agreement; and (2) the signing of such documents
shall not in violation of the laws and regulations.
2.3 The Technology Service Fees payable under this Agreement shall be secured by
the shareholders of Party B pledging its equity shares in Party B.
3. INTELLECTUAL PROPERTY
3.1 Except it is otherwise stipulated by the laws and regulations in China, the
technology and the information developed and prepared by Party A for Party B
during the course of providing technical development and technical services, and
the intellectual property rights and any derivatives of the rights that Party A
acquired under the performance of this Agreement and / or other jointly signed
contract for the research and development shall be exclusively owned by Party A.
These rights include, but are not limited to the right of patent application,
ownership of proprietary technology, technical documentation and technical
information of copyright or other intellectual property rights, rights to given
license to others to use such intellectual property rights or to transfer such
intellectual property rights.
3.2 During the course of performing this Agreement, if Party B needs to use
proprietary technologies of Party A, both parties shall enter into another
contract to stipulate the scope, manner and license fees of using the related
exclusive technology license.
4. REPRESENTATION AND WARRANTY
4.1 Party A hereby represent and warrants as follows:
4.1.1 Party A is a wholly foreign-owned enterprises legitimately registered,
established and validly existing in accordance with Chinese laws;
4.1.2 Party A executes and performs this Agreement within the power and business
scope of the company, with the necessary and appropriate corporate action and
authorization, and obtained the necessary consent and approval of the government
and third-party, and that it is not in violation of the restrictions or
limitations under the laws and contracts binding or influential to it;
4.1.3 Once this Agreement is signed, it constitutes legal, valid, binding and
enforceable obligations to Party A under the provisions of this Agreement.
4.2 Party B represents and warrants as follows:
4.2.1 Party B is a limited liability company legitimately registered,
established and validly existing in accordance with Chinese laws. Its main
business is agricultural forestry species development and production;
4.2.2 Party B executes and performs this Agreement within the power and business
scope of the company, with the necessary and appropriate corporate action and
duly authorization, and obtained the necessary consent and approval of the
government and third-party, and that it is not in violation of the restrictions
or limitations under the laws and contracts binding or influential to it;
4.2.3 Once this Agreement is signed, it constitutes legal, valid, binding and
enforceable obligations to Party B under the provisions of this Agreement.
5. CONFIDENTIALITY
5.1 Party B agrees to make every effort to adopt all reasonable measures to
protect Party A's confidential material and information (hereinafter referred to
as "Confidential Information") that are known to or accessible by Party B
because of the acceptance of the exclusive technology development, technology
support and technology services by Party B; without the prior written consent of
Party A, Party B shall not disclose, give or transfer such Confidential
Information to any third party. Once this Agreement is terminated, Party B
shall, at the request of Party A, return or destroy any document, information or
software containing Confidential Information and delete any Confidential
Information from all relevant memory device. Party B shall stop using such
Confidential Information.
5.2 The parties acknowledge and confirm that any oral or written information
exchanged between the parties in connection with this Agreement is confidential
information. Without the written consent of the other party, both parties shall
keep confidential all such information, a party shall not disclose any relevant
information to any third parties, except under the following circumstances : (a)
the public knows or will know such information (which is not disclosed by the
information receiving party without authorization); (b) the disclosure of the
information is required by the applicable laws or stock exchange rules or
regulations; or (c) disclosure to the legal or financial advisors of either
party in connection with the transaction described in this Agreement, and such
legal or financial advisors shall comply with the similar duty of
confidentiality as this provision. Any confidential information disclosed by the
employees of either party or by an organization engaged by either party shall be
deemed as the disclosure of such party. Such party shall assume the default
responsibilities in accordance with this Agreement.
5.3 Both parties agree that regardless of whether this Agreement is invalid,
modified, cancelled, terminated or non-operational, this Article 5 shall remain
in effect.
6. INDEMNIFICATION
Party B should indemnify Party A for any loss, damages, obligations and costs
arising from any legal action, claim or other requests as a result of Party B's
consulting request and content of services, and Party B shall keep Party A
harmless.
7. EFFECTIVENESS AND TERM
7.1 This Agreement shall be effective on the date written on the first page.
7.2 This Agreement shall remain effective within the operating period of Party B
unless it is early terminated by the provisions of another relevant contract
entered separately by both parties or by this Agreement.
8. TERMINATION
8.1 EARLY TERMINATION. During the effective term of this Agreement, unless Party
A commits gross negligence, fraud, other violations of law or bankruptcy, Party
B shall not early terminate this Agreement. Notwithstanding the aforesaid
covenant, Party A shall have the right to terminate this Agreement at any time
by giving a thirty (30) days prior written notice to Party B. During the term of
this Agreement, if Party B violates this Agreement and fails to remedy such
default within fourteen (14) days after receiving a written notice of default
from Party A, Party A can terminate this Agreement by serving a written notice
to Party B.
8.2 PROVISIONS AFTER TERMINATION. After the termination of this Agreement, the
rights and obligations of both parties provided in Articles 5, 10 and 12 under
this Agreement shall remain in effect.
9. GOVERNING LAW
The validity, performance, interpretation and enforceability of this Agreement
shall be governed by Chinese laws.
10. DISPUTE RESOLUTION
When any dispute arises in connection with the interpretation and performance of
the provisions under this Agreement, both parties shall resolve the dispute
through friendly consultation. If resolution cannot be reached within thirty
(30) days after the request to resolve the dispute is made by a party, eithery
party may submit such dispute to China International Economic and Trade
Arbitration Commission for arbitration in accordance with its then effective
arbitration rules. The arbitration venue shall be in Beijing; the language to
conduct the arbitration is Chinese. The arbitral award shall be final and
binding upon both parties.
11. FORCE MAJEURE
11.1 "Force majeure" refers to any event that is beyond the reasonable control
of a party, it is unavoidable even under reasonable attention of the affected
party, including but not limited to, acts of government, acts of nature, fire,
explosion, typhoon, flood, earthquake, tidal, lightning or war. However, credit,
capital or financing shortage shall not be deemed as matters beyond the party's
reasonable control. The party, affected by "force majeure", seeks to be exempted
from performing its responsibilities under this Agreement, shall promptly notify
the other party regarding such responsibilities exemption matter and let the
other party know the steps required in order to complete its performance.
11.2 When the performance of this Agreement is delayed or prevented due to the
aforementioned definition of the "force majeure", the affected party shall not
assume any responsibility under this Agreement to the extent that it is within
the scope of the delay or prevention. The affected party shall take appropriate
measures to minimize or eliminate the impact of "force majeure" and take the
effort to resume performance of the obligation delayed or prevented by the event
of "force majeure". Once the event of "force majeure" is removed, both parties
agree to resume the performance of this Agreement with their greatest efforts.
12. NOTICE
Notices or other communications required to be given by either party under this
Agreement shall be written in English or Chinese and shall be delivered by hand
delivery, registered mail, postage prepaid mail, or recognized courier service
or facsimile to the following address of the relevant party or parties or to the
other address notified by one party to the other party from time to time or to
the address of another person it designated. The actual date when a notice is
deemed delivered shall be determined in accordance with the following method:
(a) notice delivered by hand delivery, the date when the hand delivery is made;
(b) if the notice is sent by mail, on the tenth (10th) day after the date of
posting (as indicated by postmark) of air registered mail (postage prepaid) or
if it is send by courier service, on the fourth (4th) day after it is being
delivered to an internationally recognized courier service; and (c) if a notice
is sent by facsimile, the receiving time as shown on the transmission
confirmation of the relevant documents is regarded as the actual time delivered.
Party A: Aero-Biotech Science & Technology Co., Ltd.
Address: ▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇. ▇ Yuanda Road,
Haidian District, Beijing
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇
Fax: ▇▇▇-▇▇▇▇▇▇▇▇
Tel: 010 - ▇▇▇▇▇▇▇▇
Postal code: 100081
Party B: Primalights III Agriculture Development Co., Ltd.
Address: Middle Area of Highway 73, Zhuang ▇▇ ▇▇▇▇▇ Village, Huanglingxiang
Upper Village, Xiaodian District, Taiyuan City
Attention: Han Zhonglin
Fax: ▇▇▇▇-▇▇▇▇▇▇▇
Tel: 0351 - ▇▇▇▇▇▇▇
Postal Code: 030031
13. ASSIGNMENT
13.1 Party B shall not transfer its rights and undertaking of obligations under
this Agreement to any third party without Party A's prior written consent.
13.2 Party B hereby agrees, under permission of Chinese law, Party A may
transfer its rights and obligations under this Agreement to other third party
when necessary. Party A just needs to notify Party B by written notice when the
transfer occurs, no need to ask Party B's consent on such transfers.
14. INTEGRITY
Both parties confirm, once this Agreement becomes effective, it shall constitute
the entire agreement and understanding between the parties regarding the
contents of this Agreement. It shall supersede all prior oral and / or written
agreements and understanding reached by the parties related to the content of
this Agreement.
15. SEVERABILITY
If any provision of this Agreement is held invalid or unenforceable due to the
inconsistency with the relevant law, then such provision shall be deemed invalid
only to the extent within the scope of the related jurisdiction and that it
shall not affect the legal effect of the other provisions in this Agreement.
16. AMENDMENT AND SUPPLEMENT
Both parties shall amend and supplement this Agreement by the form of a written
contract. Through the proper execution of the relevant amendment agreement and
supplemental agreement by the parties, such amendment and supplement agreement
shall become an integral part of this Agreement with the same legal effect as
this Agreement.
17. COUNTERPART
There are two original copies of this Agreement, each party hold one original
copy, each original copy shall have the same legal effect.
IN WITNESS WHEREOF, the parties have caused their legal representatives, or
their authorized representatives to sign this Agreement on the date first above
written.
[No text in this page.]
Party A : Aero-Biotech Science & Technology Co., Ltd.
Legal Representative / Authorized Representatives: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------
Common seal : [Seal: Aero-Biotech Science & Technology Co., Ltd.]
Party B : Primalights III Agriculture Development Co., Ltd.
Legal Representative / Authorized Representatives: /s/ Zhang Mingshe
-----------------------------
Common seal : [Seal: Primalights III Agriculture Development Co., Ltd.]
Annex 1 : The calculation and payment method of technical services fee
1. Formula for calculation
Both parties agree that Party B shall pay 20% after-tax profits of each fiscal
year as the annual Technology Service Fee.
If Party A's last year technical services period is less than one year,
technical services fee shall be calculated in accordance with the following
formula:
Annual fee for last year's technical services
= The annual after-tax profit of such year x number of months of Party A's
technical services / 12
In spite of the above, both parties agree the technical services fee for the
year of 2007 shall be 20% of the after-tax profits of the second half of the
year 2007.
2. Payment method
Every fiscal year Party A shall issue a settlement statement to Party B,
according to the content of the services provided to Party B, and submit to
Party B in writing for verification and confirmation. Party B shall pay the
Technology Service Fees to Party A's designated account before April 30
annually. After the payable amount is transmitted, Party B shall facsimile or
mail a copy of the remittance voucher to Party A.
3. Adjustment mechanism
If Party A deems that the pricing mechanism stipulated herein is inapplicable
for some reason and that the pricing mechanism needs to be adjusted. Party A
should negotiate with Party B actively and in good faith to determine a new
standard or mechanism of charges, within [7] working days after Party A's
written request for such adjustment.
