Exhibit 10.1
CERTIFICATES CHANGE AND TECHNOLOGY TRANSFER AGREEMENT OF THE WELLNESS PRODUCTS
This Agreement has been entered into as of October 26, 2005 in Wuqing New Tech
Industrial Park, Tianjin, and P.R.C. by the following Parties:
Assignor: Tianjin Tianshi Biological Development Co., Ltd.( Hereinafter " Party
A") Legal Registered Office: Wuqing New Tech Industrial Park, Tianjin, P.R.C.
Legal Person: LI,JINYUAN
Assignee: Tianjin Tianshi Biological Engineering Ltd.( called Party B below)
Legal Registered Office: No.6, Yuanquan Rd. Wuqing New Tech Industrial Park,
Tianjin, P.R.C Legal Person: LI,JINYUAN
Whereas Party A holds the ownership of "Wellness Products Certificates" of 6
wellness products approved by State Food and Drug Administration of the P.R.
China (refer to Appendix 1) and relevant manufacture technology; and
Whereas Party A desires to transfer the ownership of "Wellness Products
Certificates" of 6 wellness products and relevant manufacture technology to
Party B; and
Whereas Party B has long term cooperation relationship with Party A, and Party B
is responsible for sales and marketing of such 6 wellness products in China for
a long time. Party B agrees to accept the ownership of "Wellness Products
Certificates" of the 6 wellness products and manufacture technology.
Therefore, in consideration of reinforcing the cooperation between the two
Parties and achieving the maximized economical benefits and returns for both
sides, Party A and Party B hereto agree as follows with regard to the above
ownership of "Wellness Products Certificates" of the 6 wellness products and
relevant manufacture technology:
1. CHANGE OF OWNERSHIP
1.1Party A agrees to change the ownership of "Wellness Products
Certificates" of 6 wellness products and relevant manufacture technology, which
is wholly owned and indicated in Appendix 1. After changing, Party B holds the
above ownership of "Wellness Products Certificates" of 6 wellness products
permanently.
1.2 Party B agrees the above changing of ownership of 6 Wellness Products
Certificates and relevant manufacture technology, and agrees to accept the above
ownership of 6 Wellness Products Certificates and relevant manufacture
technology.
1.3 Both Parties agree to apply to relevant authority for the changing
ownership of 18 Wellness Products Certificates and relevant manufacture
technology in Party B's name. Both Parties shall prepare for and submit the
required documents based upon the requirements of authority and handle the
relevant examining procedures together.
1.4 After the changing of ownership, Party B shall own the changed
ownership and shall take the right as the owner of 6 Wellness Product
Certificates and bear the obligations. After the transferring of ownership,
Party B has the right to employ the 6 Wellness Products Certificates under no
restriction to produce, manufacture and sell the wellness products in accordance
with the requirements of the 6 Wellness Products Certificates and relevant laws.
1.5 Party B shall be the principal of the 6 Wellness Product Certificates
and relevant manufacture technology after the changing of ownership based upon
the provisions of " Regulations of Wellness Products".
2. BUSINESS SCOPE AFTER TRANSFER OF OWNERSHIP
2.1 After the change of ownership of "Wellness Products Certificates" of
the 6 wellness products, Party B still take the right of employing the
certificates within the business scope prescribed previously.
2.2 After the transfer of manufacture technology of 6 wellness products,
Party B shall apply the technology subject to national laws and regulations.
2.3 Party B shall bear all the responsibilities as a result of employing
the "Wellness Product Certificates" of 6 wellness products beyond the registered
business scope or against the laws.
3. COSTS FOR CHANGE
3.1 Both Parties agree that the costs for the change of the ownership of
the "Wellness Product Certificates" for the above 6 wellness products and the
production technology shall be pursuant to the "Market Evaluation Report" from
the Nutrition Supplements Market Committee of the China Healthcare Association.
3.2 Both Parties agree that the change of the ownership of the "Wellness
Product Certificates" for the above 6 wellness products and the production
technology aims at maximizing the market value of the "Wellness Product
Certificates" for the 6 wellness products and their production technology. Both
parties agree that the transaction consideration shall be in accordance with
what is confirmed in the "Market Evaluation Report": Party B makes a payment of
2,363,512 RMB to Party A as the transfer price.
3.3 Any costs and expenses incurred in the process of the ownership change,
including but not limited to the fees from governing authority shall be born by
Party B.
4. WAYS OF PAYMENT
Party B shall make the payment to Party A in accordance with the following
deadlines upon receiving the invoices from Party A:
4.1 Make a deposit equal to 20% of the total price upon the Agreement is
signed, that is 472,702.4 RMB.
4.2 Party B shall pay the rest 1,890,809.6 RMB within 7 days after the
designation change of the "Wellness Products Ratification Certificate"
4.3 Both Parties unanimously agree to pay by (1) cash, (2) check (3)
remittance Payment by remittance by Party B should be remitted to the designated
account of Party A:
Account Number:
Name of the Bank:
5. TECHNOLOGY TRANSFER
5.1 Party A agrees to transfer all the know-how for wellness products,
including but not limited to the technological documents about products
formulations, production techniques, quality standards etc. to Party B,
simultaneously with the change of the ownership of the "Wellness Product
Certificates" of the 6 wellness products, in order for Party B to produce the 6
wellness products under the "Wellness Product Certificates".
5.2 Party A shall deliver the technologic documents to Party B within 7
working days after the ratification for the change of ownership of the "Wellness
Products Ratification Certificate" of the 6 wellness products.
5.3 After the delivery of the technologic documents to Party B, Party A
shall still bear the responsibility to instruct Party B to test, try out and
produce until Party B can produce the first batch of qualified products. Party A
is irresponsible for the financial result attainable for Party B.
5.4 The specific technology for the 6 wellness products is owned by Party B
after such technology transfer. Party A shall not transfer or disclose the
relevant technologies to any third party; otherwise it shall reimburse Part B
all the losses caused thereof.
5.5 Any new technical product invented thereafter based on the 6 specific
technologies after the technology transfer shall belong to Party B.
5.6 After the technology transfer, both Parties should keep the technology
under secret conditions and shall not disclose it to any third party.
6 TESTING STANDARDS AND TESTING MANNERS FOR THE TECHNOLOGY TRANSFER
6.1 Testing Standards: in accordance with the national or industrial
standards. If no national or industrial standards, in accordance with the
technologic parameters promised to achieve by Party A.
6.2 Testing manners: Party B receives the technologic documents from Party
A, fully understands the content, and signs for confirmation.
7. DOCUMENT DELIVERY
7.1 The relevant technologic documents and letters, required by the
Agreement, shall be drafted in Chinese and delivered by specific personnel or
fax;
7.2 All the documents for delivery shall be regarded to have been delivered
according to the following date, whichever happens first:
o If delivered by specific personnel, the date when they are arrived;
o If delivered by fax, the date when the return receipt is confirmed.
8. REPRESENTATIONS AND WARRANTIES
8.1 Party A and Party B each respectively represents and warrants that it
has the authority and capacity to enter into and execute this Agreement. The two
parties have hereto signed this agreement by their duly authorized officers and
representatives. The conclusion and execution of this agreement does not cause
to be in breach of any contract to or infringe the rights and interests of the
third party, or cause the other party to be liable for any responsibility to any
third party as a result of the performance of this agreement.
8.2 Party A represents and warrants that it owns the entire intellectual
right and technology material of the six wellness products prior to such
Agreement. It guarantees that the conclusion of the Agreement does not infringe
the any third party's technical rights and interests. Party A shall be
responsible for dealing with any legal issues which may incur and bear any costs
and liabilities in connection with the performance of this Agreement.
8.3 Party A guarantees Party B that the technical material which is
transferred to Party B is the most recent. It guarantees that the material is
complete, properly drafted, and reliable. Party A shall transfer the material to
party B in accordance with the rules hereinto.
8.4 Party B guarantees that it has acquired or shall acquire the production
license, healthy certification, and guarantees that it meets all the necessary
requirements for producing and manufacturing wellness products.
8.5 Party B guarantees that it products and manufactures in accordance with
the original formulation, quality standard, production technics of the six
wellness products and in compliance with national laws and regulations. Party A
is not responsible for any economic losses suffered by Party B as a result of
Party B's breaching the above articles under this Agreement.
9. LIABILITY FOR BREACH OF THE AGREEMENT
9.1 If Party A does not provide the technical materials and guidance on
tests, trial, and production to Party B in accordance with the time, quantity,
quality provisions stipulated hereinabove, Party A shall pay Party B penalty
equal to the sum of 5% of technology transfer fee.
9.2 If Party A transfers such technology to any third party without prior
approval by Party B, it shall pay Party B penalty equal to the sum of 5% of
technology transfer fee.
9.3 In the event that there is any technical error for the transferred
technology Party A shall make corrections and improve the quality promptly. If
such improvement still cannot meet the production standard, Party A shall pay
Party B penalty equal to the sum of 5% of technology transfer fee, and moreover,
reimburse Party B any losses incurred arising out of or in connection therewith.
9.4 If Party B does not pay transfer fee to Party A in accordance with the
time and amount stipulated by this Agreement, Party B shall pay penalty to Party
A subject to the bank's rules with respect to deferring payment.
10. CHANGES AND DISSOLUTION OF THE AGREEMENT
10.1 Without any reasonable cause either party shall not change or
terminate this Agreement.
10.2 In the case of failure to complete the ownership transfer procedures of
Wellness Products Certificate as a result of the change of national policy after
the conclusion of this Agreement, both parties shall have the right to terminate
this Agreement. In such case, both parties shall not bear responsibilities for
default and suffer the losses arising out of this by themselves respectively.
11 GOVERNING LAW AND SETTLEMENT OF DISPUTES
11.1 The conclusion, validity, interpretation, implementation, amendments,
termination and settlement of dispute arising out of or in connection with this
Agreement shall be governed by the laws of the PRC.
11.2 The two parties hereto shall make all reasonable efforts to solve any
dispute arising out of the implementation of this Agreement through friendly
consultation. In case no settlement can be reached through consultation, the
court where Party A is located shall have jurisdiction to hear and determine the
suit subject to this written Agreement.
12 OTHERS
12.1 A supplemental Agreement shall be signed separately thereafter by both
parties if some other items are to be covered.
12.2 The changed parts, if there are any, shall be invalid unless they are
properly sealed and validated by both parties.
12.3 If any provision of this Agreement or part thereof is rendered void or
unenforceable, it shall not affect in any way the validity or enforceability of
any other provision of this Agreement.
12.4 The Agreement shall take effect after both parties have affixed their
respective seals under the hands of their respective officers duly authorized in
that behalf. In the event that a notarization is needed, the Agreement shall
become effective after it is notarized by public notarial authority.
This Agreement shall be executed in eight originals. Each party holds one copy
and others will be submitted to the authorized governmental department in the
course of proceeding the transfer application procedures.
IN WITNESS WHEREOF this Agreement has been entered into the day and year first
above written.
PARTY A: TIANJIN TIANSHI BIOLOGICAL DEVELOPMENT CO., LTD.
SIGNED BY /s/ Xxxxxxx Xx
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DATE October 26, 2005
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CONTACT Xxxxx Xxx
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TEL 0000-00-00000000
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FAX 0000-00-00000000
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ADD. Xx. 0, Xxxxxxxx Xxxx, Xxxxxx Xxx-xxxx Xxxxxxxxxx Xxxx, Tianjin, P.R. China
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PARTY B: TIANJIN TIANSHI BIOLOGICAL ENGINEERING CO., LTD.
SIGNED BY /s/ Xxxxxxx Xx
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DATE October 26, 2005
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CONTACT Xxxxx Xxx
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TEL 0000-00-00000000
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FAX 0000-00-00000000
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ADD. Xx. 0, Xxxxxxxx Xxxx, Xxxxxx Xxx-xxxx Xxxxxxxxxx Xxxx, Tianjin, P.R. China
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