EXHIBIT 4.6
TRANSLATED FOR REFERENCE ONLY.
PROPRIETARY TECHNOLOGY LICENSE AGREEMENT
This Proprietary Technology License Agreement (hereinafter referred to as "this
Agreement") is entered into by the following parties on June 8, 2007 in Beijing:
Party A: Aero-Biotech Science & Technology Co., Ltd.
Residence: Xxxx X000, 0xx Xxxxx, Golden Resources Shopping Mall, Xx. 0 Xxxxxx
Xxxx, Xxxxxxx Xxxxxxxx, Xxxxxxx
Party B: Primalights III Agriculture Development Co., Ltd.
Residence: Middle Area of Highway 73, Zhuangershang Upper Village, Huangling
Rural, Xiaodian District, Taiyuan City
WHEREAS:
(1) in accordance with the laws of the People's Republic of China (hereinafter
referred to as "China", in this contract does not include the Hong Kong Special
Administrative Region, Macao Special Administrative Regions and Taiwan) Party A
is a wholly foreign-owned enterprise registered and established in Beijing,
China, who owns non-patent technologies listed in Annex I (such technologies and
related information, manual, handbook, files, etc. hereinafter referred to as
"Proprietary Technology");
(2) Party B is a limited liability company registered and established in Taiyuan
City, Shanxi Province of China under Chinese laws, the main businesses are
development and production of agricultural seeds, tree seeds and seedlings
breed;
(3) Party A agrees to grant to Party B the exclusive right to use the
Proprietary Technology under this Agreement in accordance with the terms and
conditions of this Agreement, and Party B agrees to accept such license in
accordance with the same terms and conditions.
NOW, THEREFORE, both parties, through consultation, unanimously reach the
agreements as follows:
1. PERMISSION GRANT
1.1 Proprietary Technology
1.1.1 Party A agrees, according to the terms and conditions under this
Agreement, to grant to Party B, and Party B agrees to accept the right to use
the Proprietary Technology in China according to the same terms and conditions.
The license under this Agreement is exclusive, except with the written consent
of Party A, Party B shall not transfer the Proprietary Technology to any third
party, nor shall jointly share, use, develop, improve or innovate the
Proprietary Technology with any third party.
1.1.2 Agreed by both parties, should there be any improvement or innovation
technological achievements resulted during the course of using the Proprietary
Technology by Party B, the relevant rights and ownership shall be exclusively
vested
in Party A unless it is otherwise provided by Chinese laws and regulations or
mutually agreed by both parties. Party B shall not hold any rights and
interests.
1.2 Scope
1.2.1 The Proprietary Technology granted to Party B herein shall only be used on
Party B's business in development and production of stock breeding. Unless it is
otherwise stated herein, without written consent of Party A, Party B shall not
use the Proprietary Technology in other purpose or re-license for the use of any
third party, whether for normal application, training or commercial sharing.
1.2.2 The right granted to Party B to use the Proprietary Technology herein
shall be effective only in China. Party B agrees not to use such Proprietary
Technology, whether directly or indirectly, in other geographical areas.
2. PAYMENT METHOD
Party B agrees to pay the Proprietary Technology license fee (hereinafter
referred to as "License Fee") to Party A. The standard License Fee shall be
RMB2.72 million per year. Party B shall pay the Proprietary Technology License
Fee for the current year to Party A's designated account before December 31 of
each year.
The License Fee payable hereunder by Party B shall be secured by the
shareholders of Party B by pledging their respective shareholding in Party B.
Both parties shall bear their respective tax liabilities in relation to this
Agreement in accordance with the stipulations of laws.
3. PARTY A'S RIGHTS AND PROTECTION
3.1 In the effective term of this Agreement and thereafter, Party B agrees not
to challenge or question the validity of the proprietary right and this
Agreement in connection with the aforesaid Proprietary Technology; and not to
perform any acts that Party A believes it will impair Party A's rights and
license.
3.2 Party B agrees to provide the necessary assistance to protect Party A's
rights on the Proprietary Technology. Should any third party bring an
infringement claim against Party A's Proprietary Technology, at Party A's
discretion, Party A may respond to such compensation litigation in its own name,
in Party B's name or in both parties name. In the event any third party commits
any infringement behavior in connection with such Proprietary Technology, Party
B shall notify Party A immediately within its scope of knowledge; only Party A
is entitled to decide whether to take action against such infringement behavior.
3.3 Party B agrees to use the Proprietary Technology only in the manner as
provided in this Agreement and shall not use the Proprietary Technology in any
manner which Party A deems as deceptive, misleading or other manner that may
impair the Proprietary Technology or Party A's reputation.
2
4. CONFIDENTIALITY PROVISIONS
4.1 Party A's confidential material and information (hereinafter "Confidential
Information") being understood or accessed by Party B as a result of accepting
the Proprietary Technology license, Party B shall keep confidential; and at the
time this Agreement terminates, Party B shall, at Party A's request, return to
Party A any documents and materials marked Confidential Information or destroy
such Confidential Information, and delete any Confidential Information from any
relevant memory device, and shall discontinue using such Confidential
Information. Without the written consent of Party A, Party B shall not disclose
to any third party, give or transfer such Confidential Information.
4.2 Both parties agree that this Article 4 shall remain valid regardless of
whether this Agreement shall become invalid, alter, discharge, terminate or
unenforceable.
5. REPRESENTATION AND WARRANTY
5.1 Party A represents and warrants as follows:
5.1.1 Party A is a validly existing wholly foreign-owned enterprise legally
registered in accordance with the Chinese laws.
5.1.2 Party A signs and perform this Agreement within the power and business
scope of the company; adopted all necessary corporate action, duly authorized,
and obtained the consent and approvals (as required) of third party or
government; and not in violation of the legal and company restrictions binding
or affecting upon it.
5.1.3 This Agreement, once executed, shall constitute legitimate, valid, binding
and enforceable obligations on Party A under the conditions of this Agreement.
5.1.4 Party A shall hold full and complete rights towards the Proprietary
Technology.
5.2 Party B represents and warrants as follows:
5.2.1 Party B is a validly existing limited liability company legally registered
in accordance with the Chinese laws.
5.2.2 Party B signs and perform this Agreement within the power and business
scope of the company; adopted all necessary corporate action, duly authorized,
and obtained the consent and approvals (as required) of third party or
government; and not in violation of the legal and company restrictions binding
or affecting upon it.
5.2.3 This Agreement, once executed, shall constitute legitimate, valid, binding
and enforceable obligations on Party B under the conditions of this Agreement.
3
6. EFFECTIVENESS AND TERM
6.1 This Agreement shall be effective when it is executed on the date written on
the first page of this Agreement. Unless it is early terminated according to
this Agreement, this Agreement shall remain effective during the operation term
of Party B.
6.2 On written consent by both parties, this Agreement is renewable upon expiry
and the renewal term shall be determined by both parties through consultation.
7. DEFAULT RESPONSIBILITY AND TERMINATION
7.1 Default Responsibility
If Party B fails to pay the License Fee as scheduled in accordance with the
provision hereunder, Party A is entitled to issue a written reminder to remind
Party B to pay the outstanding License Fee, and Party B is entitled to collect a
3% of the relevant outstanding License Fee as the default fine. Except as
otherwise provided in this Agreement, either party of this Agreement fails to
perform the obligations under this Agreement or fails to perform the obligations
in comply with the relevant provisions of this Agreement, shall, at the request
of the non-defaulting party, to continue perform, or to adopt remedy measure and
to compensate the actual loss caused to the non-defaulting party.
7.2 Discharge and Termination
During the effective term of this Agreement, Party A may, at any time, by giving
a thirty (30) day prior written notice to Party B, terminate this Agreement;
unless as otherwise expressly provided herein, without a reason written consent
of Party A, Party B shall not terminate or discharge this Agreement
unilaterally.
7.3 Results of Termination or Expiration
After this Agreement terminates or expires, Party B shall no longer enjoy all
the rights granted to it under this Agreement. Party B shall not, directly or
indirectly, use the Proprietary Technology.
8. FORCE MAJEURE
8.1 "Event of Force Majeure" refers any event that is beyond the reasonable
control of a party, and it is unavoidable even under the reasonable care of the
affected party, such events shall include but not limited to: acts of
government, forces of nature, fire, explosion, typhoon, floods, earthquakes,
tidal, lightning or war. However, credit, capital or financing shortage shall
not be considered as matters beyond a party's reasonable control. The party,
affected by "Event of Force Majeure", seeks exemption from performing its
responsibilities under this Agreement or under any provision of this Agreement,
shall notify the other party as soon as possible regarding such matter of
exemption.
4
8.2 When the performance of this Agreement is delayed or prevented due to the
aforementioned definition of "Event of Force Majeure", the affected party shall
not assume any responsibility under this Agreement provided that the affected
party has endeavored its reasonable effort to perform the agreement and to the
extent of the part of the performance being delayed or prevented. Once the cause
of such liability exemption is redressed or remedied, both parties agree to
resume the performance of this Agreement with their best effort. If the
influence of force majeure has rendered the performance of this Agreement
becomes impossible, both parties agree, at the request of Party A, to use their
greatest efforts to adopt other resolutions to realize the purposes of this
Agreement.
9. DISPUTE RESOLUTION
In the event dispute in relation to the interpretation and performance of this
Agreement arises, both parties shall resolve such dispute through friendly
consultation. Should resolution cannot be reached within thirty (30) days after
the request to resolve the dispute is made by a party, either party may submit
such dispute to China International Economic and Trade Arbitration Commission
for arbitration in accordance with the then effective arbitration rules. The
arbitration shall take place in Beijing and the language to conduct the
arbitration shall be in Chinese. The arbitral award shall be final and binding
upon both parties.
10. 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 a recognized courier service
or facsimile to the following addresses of the relevant party or both parties or
to the other address notified by one party to the other party from time to time
or to the address of the other person it specified. Notice is deemed delivered
based on the following criteria: (a) on the same date when hand delivery; (b) on
the tenth (10th) day after the date of posting (as indicated by postmark) of air
registered mail (postage preprepaid) or if it is sent by courier service, on the
fourth (4th) day after it is being delivered to an internationally recognized
courier service center; and (c) a notice 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: Xxxx X000, 0xx Xxxxx, Golden Resources Shopping Mall, No. 1 Yuanda
Road, Haidian District, Beijing
Attention: Xxxxxxx Xxxx
Fax: 000-00000000
Tel: 010 - 00000000
Postal code: 100081
5
Party B: Primalights III Agriculture Development Co., Ltd.
Address: Middle Area of Highway 73, Zhuangershang Upper Village, Huangling
Rural, Xiaodian District, Taiyuan City
Attention: Zhonglin Han
Fax: 0000-0000000
Tel: 0351 - 0000000
Postal code: 030031
11. RETRANSFER, SUBLICENSE
Without the prior written consent of Party A, Party B shall not transfer, pledge
or sublicense the rights and obligations of and under this Agreement.
12. GOVERNING LAW
The validity, performance and interpretation of this Agreement shall be governed
by laws of China.
13. AMENDMENT AND SUPPLEMENT
Amendments and supplements to this Agreement shall be made in the form of a
written instrument. The relevant amendment agreement and supplemental agreement
to this Agreement, duly signed by both parties, shall be an integral part of
this Agreement and shall have the same legal effect as this Agreement.
14. SEVERABILITY
If any provision of this Agreement is held invalid or unenforceable due to the
inconsistency with the relevant laws, then such provision shall be deemed
invalid only within the scope of the related jurisdiction and that it shall not
affect the legality of the other provisions under this Agreement.
15. ANNEX
Any annex of this Agreement is an integral part of this Agreement, and it shall
have the same legal effect.
IN WITNESS WHEREOF, both parties have caused their legal representative or
authorized representative to execute this Agreement on the date first above
written.
16. COUNTERPART
This Agreement is signed in duplicate, each party holds one original and each
original shall have the same legal force and effect.
[No text below.]
6
[No text in this page.]
PARTY A: Aero-Biotech Science & Technology Co., Ltd.
Legal representative / authorized representative: /s/ Xxxx Xxxxxxx
------------------------------
Common seal: [Seal: Aero-Biotech Science & Technology Co., Ltd.]
PARTY B : Primalights III Agriculture Development Co., Ltd.
Legal representative / authorized representative: /s/ Zhang Mingshe
------------------------------
Common seal: [Seal: Primalights III Agriculture Development Co., Ltd.]
7
ANNEX I: LIST OF PROPRIETARY TECHNOLOGY
8
