EXHIBIT 10.4
JOINT VENTURE AGREEMENT
THIS AGREEMENT, entered into this 24th day of June, 1981, between:
AJINOMOTO CO., INC., a Japanese corporation having its principal
place of business at 0-0, Xxxxxxxx 0-xxxxx, Xxxx-xx, Xxxxx, Xxxxx (hereinafter
referred to as "AJI")
and
THE XXXXXXX RIVER BREEDING LABORATORIES, INC., a Delaware corporation
having its principal place of business at 000 Xxxxxxxxxxx Xxxxxx, Xxxxxxxxxx,
Xxxxxxxxxxxxx, X.X.X. (hereinafter referred to as "CRBL").
W I T N E S S E T H
WHEREAS, CRBL has purchased from AJI four hundred thousand (400,000)
shares of Common Stock of XXXXXXX RIVER JAPAN, INC. (hereinafter referred to
as "CRJ") which shares represent fifty percent (50%) of the total outstanding
shares of CRJ; and
WHEREAS, AJI and CRBL now each own fifty percent (50%,) of the
outstanding shares of CRJ and AJI and CRBL each wish to continue to own fifty
percent (50%) of such shares; and
WHEREAS, AJI and CRBL wish to outline the terms of their joint
management of CRJ;
NOW, THEREFORE, in consideration of the foregoing and of the mutual
covenants and premises hereinafter set forth, the parties hereto agree as
follows:
ARTICLE I
The term "TERRITORY" shall mean any and all the countries listed in
Schedule A attached hereto and made a part hereof.
ARTICLE II
DIRECTORS AND MANAGEMENT
(1) CRJ has a Board of Directors consisting of ten directors. The
parties hereto agree that they will cast their votes as shareholders of CRJ in
such manner that the Board of Directors shall consist of an equal number of
persons designated by AJI and CRBL.
(2) No remuneration shall be paid to directors of CRJ except those
who devote all their activities to the benefit of CRJ. Remuneration to be paid
to the full-time directors shall be fixed by agreement of both parties.
(3) The parties hereto agree that they will cause their
representatives on the Board of Directors of CRJ to appoint a President who
shall be designated by AJI and accepted by CRBL. The President shall be a
Registered Representative Director.
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(4) The parties hereto agree that, at the request of CRBL, they will
cause their representatives on the Board of Directors of CRJ to appoint a
Senior Managing Director who shall be designated by CRBL and accepted by AJI;
that AJI and CRBL shall determine after mutual consultation the level of
compensation CRJ shall accord such person; provided, however, that CRBL may
accord such person an annual bonus in such amount as it shall determine from
time to time; and that, in addition to the President, the Senior Managing
Director shall be a Registered Representative Director. In the event CRBL does
not request the appointment of such a Senior Managing Director and CRJ is
therefore not required to compensate such a person, CRJ shall bear all
reasonable expenses associated with CRBL sending a director from its offices
in the United States to attend meetings of the Board of Directors in Japan,
including without limitation travel, meals and lodging expenses.
(5) The parties hereto agree that they will vote their shares of CRJ
in such manner that at all times during the effective period of this Agreement
there shall be two statutory auditors (Kansayaku) of CRJ; one to be a person
designated by AJI and the other to be a person designated by CRBL.
(6) The parties hereto agree that Xxxxxx Xxxxxxxx & Co. and Tetsuzo
Ota Co. shall be the independent public accountants of CRJ and together shall
examine and audit its
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accounting books and records annually at the end of its fiscal year and shall
at the expense of CRJ prepare audit reports in English and Japanese and shall
furnish them to the parties hereto. In addition, CRBL may at its own expense
designate Xxxxxx Xxxxxxxx & Co., or such other independent auditor as it may
from time to time designate, to audit the books and records of CRJ or perform
such lesser procedure as may be required for the period ending October 31 each
year in order to provide the information necessary or appropriate for the
independent accountants of CRBL to express an opinion on the financial
statements of CRBL, and at such time CRJ shall cooperate fully with such
auditors of CRBL.
CRJ shall keep complete books of account and records in accordance
with sound accounting practices employing standards, procedures and forms
conforming to international practice as approved by Xxxxxx Xxxxxxxx & Co. and
T. Ota & Co.
(7) Minutes of all meetings of shareholders and of all meetings of
the Board of Directors shall be kept in both Japanese and English. At any
meeting of shareholders or of the Board of Directors at which a non-Japanese
speaking person is expected to be present, CRJ shall, at its own expense,
provide an official interpreter or interpreters.
(8) In addition to such an interpreter or interpreters as set forth
in Paragraph (7) above, any shareholder and director shall have the right to
use its own interpreter at
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its own expense at any meeting of shareholders and of the Board of Directors.
(9) All regular and special reports relating to the financial and
technical operating results of CRJ, either submitted to the Board of Directors
or listed in Schedule B attached hereto and made a part hereof, shall be
prepared in both Japanese and English.
ARTICLE III
ACTIONS BY THE BOARD OF DIRECTORS
(1) The Board of Directors of CRJ has responsibility for and control
over the operation of CRJ as well as the establishment of the general plans of
operation in accordance with the Articles of Incorporation of CRJ. One more
than half of the total number of directors shall constitute a quorum for the
transaction of business and the affirmative vote of one more than half of the
total number of directors shall be the act of the Board of Directors at a
meeting at which a quorum is present.
(2) The following matters require specific action by the Board of
Directors and the actions of any individual officer or director, including a
Registered Representative Director, shall not bind CRJ with respect to these
matters:
--decide capital and operating budgets;
--make loans, guarantee obligations, or borrow funds in an amount in
excess of twenty million yen;
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--sell, lease, encumber or otherwise dispose of all or substantially
all assets;
--terminate a line of products or business or undertake a new line of
products or business;
--make any investment or capital expenditure, or series of related
investments or capital expenditures on any single project, for
amounts not included in the capital or operating budget in excess of
twenty million yen;
--issue or redeem stock;
--submit a proposal for distribution of dividends to the
shareholders;
--take any action that may adversely affect the financial condition
of the company;
--matters not in the ordinary course of business; and
--any other matters which the Board of Directors may determine
require action by the Board of Directors.
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ARTICLE IV
PRE-EMPTIVE RIGHTS
Upon recapitalization of CRJ or the issuance of newly authorized
capital stock of CRJ in excess of the initial authorized capital or the
issuance of any of the unissued authorized capital stock, AJI and CRBL shall
have pre-emptive rights to acquire such number of newly issued shares as shall
be consistent with their respective proportionate ownership of the capital
stock of CRJ.
ARTICLE V
SALE OR TRANSFER OR SHARES
So long as both CRBL and AJI own any shares of CRJ, each shall have
the right of first refusal with respect to the shares owned by the other and
each shall be obligated as follows. Such right of first refusal shall be
exercised in accordance with the following procedures:
(1) A shareholder desiring to sell or transfer any or all of its
shares of CRJ (the Offering Shareholder) shall first give written notice to
the other shareholder of its desire to sell or transfer the shares of CRJ,
stating the name of the proposed transferee, the number of shares to be sold
or transferred and the price, terms and conditions of the proposed sale or
transfer.
(2) The other shareholder shall then have the option, to be exercised
within ninety (90) days from the receipt of notice from the Offering
Shareholder, to purchase all of the
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offered shares at the price and on the terms and conditions specified in the
notice given by the Offering Shareholder.
(3) If the offered shares are not purchased by the other shareholder,
these shares may be sold or transferred by the Offering Shareholder at any
time within one hundred eighty (180) days from the date of the notice
referred to in paragraph (1) above to the transferee specified in such notice
at a price which is no lower, and on terms and conditions no more favorable,
than the price and terms and conditions specified therein.
(4) It is understood and agreed that notwithstanding the foregoing
provisions of this Article V, either CRBL or AJI may sell or transfer all of
its shares of CRJ (but not in part) to a corporation in which such party holds
all of the total outstanding voting shares without the consent of the other
party or without taking the procedures set forth above, provided that the
transferee agrees to be bound by all of the provisions of this Agreement as if
it had been the original party hereto, and that the transferor shall remain
responsible for the performance of any of the obligations hereunder.
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ARTICLE VI
FINANCIAL RESPONSIBILITIES
(1) Either of the parties hereto shall assume financial
responsibility to CRJ in proportion to its stockholding which shall include
direct loans to CRJ and guarantees in respect of CRJ borrowings, unless
otherwise determined by the Board of Directors, but which shall not include
reduction of royalties payable by CRJ under the License and Technical
Assistance Agreement and the Tradename and Trademark License Agreement dated
March 24, 1978 among CRBL, CRJ and AJI barring the case of specific agreement
in writing which may otherwise be made among the parties.
(2) AJI agrees with CRBL that during and with respect to the two (2)
fiscal years commencing with the 1981 fiscal year, the burden of wage cost of
CRJ's employees dispatched from AJI (such wage cost is hereinafter referred to
as the "Wage Cost") shall be divided between CRJ and AJI as follows:
CRJ AJI
1981 Fiscal Year
(Commencing on April 1,
1981 and ending on
March 31, 1982) 70% 30%
1982 Fiscal Year
(Commencing on April 1,
1982 and ending on
March 31, 1983) 75% 25%
AJI further agrees that with respect to 1983 and any subsequent
fiscal year, it shall continue to give to CRJ
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financial assistance by means of assuming twenty-five percent (25%) of the
Wage Cost, provided that if CRJ's pretax profit as determined in accordance with
generally accepted accounting principles applied consistently and as reflected
in audited financial statements of CRJ (calculated on the basis of CRJ's burden
of the Wage Cost in that fiscal year) attains ten percent (10%) of gross sales
in the 1982 fiscal year or in any subsequent fiscal year, then AJI's burden of
the Wage Cost during that fiscal year which follows any fiscal year in which ten
percent (10%) pretax profit is attained shall be reduced by five percent (5%) of
the total Wage Cost from the percentage applied in the immediately preceding
year; such financial assistance by AJI at a percentage reduced from time to time
by each occurrence of attainment of ten percent (10%) pretax profit by CRJ to
continue until AJI's burden of the Wage Cost becomes zero by recurrence of
attainment of ten percent (10%) pretax profit by CRJ and consequential
reductions of AJI's burden of the Wage Cost as provided above.
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ARTICLE VII
NONCOMPETITION
In order to xxxxxx and promote the attainment of the mutual aims and
objectives of AJI and CRBL with respect to CRJ, AJI and CRBL agree that during
the term of this Agreement and for a period of two (2) years after this
Agreement is terminated in accordance with Article X hereof or after either
party acquires all of the shares of CRJ, AJI and CRBL shall not, directly or
indirectly (through a firm, joint venture, company or business owned or
controlled by it or otherwise), except through CRJ, engage in the business in
the TERRITORY, as defined in Schedule A attached, to produce laboratory
animals and, or feed for laboratory animals which are reasonably competitive
with products sold by CRJ and shall not acquire in the TERRITORY an interest
in any firm, company or business organization producing, selling, promoting or
dealing in, laboratory animals and/or feed for laboratory animals which are
reasonably competitive with products sold by CRJ. Notwithstanding the
foregoing, if this Agreement shall be terminated pursuant to Paragraph (2) of
Article X, the terminating party shall not be subject to any restriction
provided above after the termination.
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ARTICLE VIII
ASSIGNABILITY
Except as otherwise expressly provided in this Agreement, neither
this Agreement nor any rights under this Agreement shall be assignable or
transferable by AJI or CRBL without the prior written consent of the other;
provided, however, that in the case of any transfer of rights or obligations
under this Agreement pursuant to a merger or consolidation of AJI or CRBL, the
other party shall not unreasonably withhold its consent to such transfer if
the beneficial ownership and management of the proposed transferee and
proposed transferor are and will be substantially the same. Any assignment or
transfer under this Article shall become effective only after necessary
authorization by the Government of Japan shall have been obtained.
ARTICLE IX
ARBITRATION
(1) All disputes, controversies, or differences which may arise
between the parties, out of or in relation to or in connection with this
Agreement, or for the breach thereof, shall be finally settled by arbitration
pursuant to the Japan-American Trade Arbitration Agreement, of September 16,
1952, by which each party hereto is bound.
(2) Such arbitration shall be held in the City of Boston,
Massachusetts if the demand for arbitration is
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received by CRBL and in Tokyo if the demand is received by AJI.
(3) Nothing herein contained shall be construed as preventing either
party hereto from instituting legal action against the other for a temporary
injunction, pending final settlement of any dispute, difference or question by
arbitration.
(4) Notwithstanding Paragraph (1) of this Article, in the event that
CRJ should become deadlocked in the management of the corporate affairs for
any reason whatsoever, or that the managing or disposing of CRJ property
should be grossly improper and the existence of CRJ should be thereby in
danger, the parties hereto shall not be precluded from instituting a lawsuit
for dissolution of CRJ in the competent court in Japan in accordance with
Paragraph 1 of Article 406-2 of the Commercial Code of Japan.
ARTICLE X
TERMINATION
(1) Either party hereto shall have the right to terminate this
Agreement forthwith by giving the other written notice to that effect upon the
occurrence of any of the following events to CRJ:
(a) Termination of business by unanimous decision of the shareholders;
(b) Dissolution or liquidation;
(c) Adjudication of bankruptcy;
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(d) The appointment of any trustee, receiver or liquidator for
substantially all of the assets of the business of CRJ;
(e) The attachment, sequestration, execution or seizure of
substantially all of the assets of CRJ, which attachment,
sequestration, execution or seizure is not released within thirty
(30) days from the institution thereof.
(2) Upon default by either party in the performance of any obligation
hereunder to be performed by such party, the other party may give notice in
writing to the party in default specifying the thing or matter in default.
Upon receipt of such notice, the receiving party may elect either to cure the
default within one (1) month or sooner if practicable following the giving of
such notice or may notify the other party of its intention to seek arbitration
pursuant to Article IX of this Agreement with respect to the alleged default.
In the event the arbitration proceedings conclude that such party is in
default, that party has one month to cure the default. At the conclusion of
either one-month period, if the default has not been cured, the party first
giving notice may give further written notice to such other party terminating
this Agreement, in which event this Agreement shall terminate on the date
specified in such further notice. Such termination right shall be in addition
to and not in substitution for any other remedies that may
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be available to the party serving such notice against the party in default,
and any termination in the exercise of such right shall not relieve either
party from any obligations accrued to the date of such termination or relieve
the party in default from liability in damages to the other for breach of this
Agreement. Waiver by either party of a single default or a succession of
defaults shall not deprive such party of any right to terminate this
Agreement, or to have recourse to arbitration, arising by reason of any
subsequent default.
(3) Any delays or failure by either party hereto in the performance
hereunder shall be excused if and to the extent caused by occurrences beyond
such party's control, including, but not limited to, acts of God, strikes or
other labor disturbances, war, sabotage, and any other cause or causes,
whether similar or dissimilar to those herein specified which cannot be
controlled by such party.
(4) In the event that further lawful performance of this Agreement or
any part hereof shall be rendered impossible by the entry of a final judgment
or final order in an antitrust or trade regulation case by any court,
commission or agency having jurisdiction over either party, or a parent
company of either party, whether or not the entry of such judgment shall be
consented to by such party or by such parent company, the parties covenant and
agree, that forthwith upon the entry of such final judgment or
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final order, they will exert their best efforts to agree on an amendment or
amendments to this Agreement or on modifications of their practices hereunder
in such manner as will fully comply with said final judgment or final order.
In the event that either party shall receive a formal charge, indictment, or
complaint which might lead to the entry of such a final judgment or final
order, such party shall promptly notify the other party of such fact and
afford an opportunity to such other party for consultation regarding the
matter. In the event that the parties are unable, within a period of six (6)
months after written notice by either party to the other of such impossibility
of lawful performance, to reach such agreement, either party may terminate
this Agreement by written notice to the other party effective as of the
expiration of such six (6) month period. All rights or obligations of either
party under this Agreement or the portion thereof adjudged invalid by such
final judgment or final order shall be suspended upon the entry thereof pending
negotiations between the parties as herein provided to remedy such invalidity.
(5) Upon termination of this Agreement pursuant to Paragraph (1) or
(4) of this Article, CRJ shall, unless the parties hereto otherwise agree in
writing, be dissolved and liquidated and the net proceeds thereof divided and
distributed among its shareholders as promptly and reasonably as possible in
accordance with respective stock
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interests in CRJ. Nothing herein, however, shall be deemed to require the
dissolution and/or liquidation of CRJ in the event that either party should
acquire all of the shares of CRJ.
(6) Upon termination of this Agreement pursuant to Paragraph (2) of
this Article, the party terminating this Agreement shall have the option
either
(a) to demand dissolution and liquidation of CRJ; or
(b) to purchase all of the shares of CRJ then held by the other party
at the price per share equal to the then book value per share of
CRJ.
The parties agree that upon the exercise of either option, all
obligations of the parties under this Agreement, other than those arising from
the ordinary course of business dealings among CRJ, AJI and CRBL, shall
terminate.
ARTICLE XI
TAXES
(1) All income taxes required by the laws of Japan to be withheld
from any payment to be made to CRBL pursuant to this Agreement shall be for
the account of CRBL.
(2) AJI agrees to furnish or to cause CRJ to furnish to CRBL official
tax receipts or other evidence issued by the Japanese tax authorities together
with English translation thereof sufficient to enable CRBL to establish
payment of the taxes described in Paragraph (1) above.
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ARTICLE XII
EXPENSES
Except as otherwise provided in this Agreement, each party hereto
shall bear its own expenses relating to this Agreement and the performance
thereof.
ARTICLE XIII
DISCLAIMER
Neither of the parties hereto, nor CRJ shall be deemed to represent
the other party or to have the authority to represent the other party or its
subsidiaries in any way whatsoever except as specifically agreed to by such
other party in writing. This Agreement shall not constitute either of the
parties hereto or CRJ to be the agent or representative of the party in any
way whatsoever.
ARTICLE XIV
ARTICLE TITLES
The headings to the articles of this Agreement have been inserted
only to facilitate reference and shall not be taken as being of any
significance whatsoever in the construction or interpretation of this
Agreement.
ARTICLE XV
SEVERABILITY
Subject to the provisions of Paragraph (4) of Article X, if any term
or provision of this Agreement shall hereafter be finally determined to be not
enforceable or void as
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against public policy or otherwise legally unenforceable, the same shall be
severable from and eliminated from the balance of this Agreement and the
balance of this Agreement shall continue in force as the Agreement of the
parties notwithstanding that determination, unless such unenforceable terms or
provisions shall be so significant as to materially affect the parties'
expectations regarding this Agreement.
ARTICLE XVI
MULTIPLE ORIGINALS
This Agreement shall be executed in four counterparts, two being in
the English language and two being in the Japanese language, each of which
counterparts shall be deemed an original. In the event of any discrepancy or
difference between the English and Japanese versions, the English version
shall prevail in all respects.
ARTICLE XVII
NOTICES
(1) All notices, requests, demands and other communications under
this Agreement or in connection herewith shall be given to or made upon the
respective parties as follows:
TO: AJINOMOTO CO., INC.
President
0-0, Xxxxxxxx, 0-xxxxx
Xxxx-xx, Xxxxx
Xxxxx
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TO: THE XXXXXXX RIVER BREEDING LABORATORIES, INC.
President
000 Xxxxxxxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxxxxxxx 00000
X.X.X.
(2) All notices, requests, demands and other communications given or
made in accordance with the provisions of this Agreement shall be in writing,
and shall be telexed and later confirmed by registered airmail. The
communication shall be deemed to be given or made when telex is received or
when mail is deposited in the United States or Japanese mail, as the case may
be, postage prepaid.
(3) Any party may alter its address above set forth by notice in
writing to the other party hereto, and such notice shall be considered to have
been given ten (10) days after the airmailing thereof.
ARTICLE XVIII
GOVERNING LAW
This Agreement shall be governed by and interpreted in accordance
with the laws of Japan.
ARTICLE XIX
MODIFICATION OF AGREEMENT
No oral explanation or oral information by either party hereto shall
alter the meaning or interpretation of this Agreement. No modification or
amendment of the terms of this Agreement or any Exhibit attached hereto, and
no waiver of any of the terms or conditions hereof or thereof shall be
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valid unless made in writing duly executed by the parties hereto or thereto,
and further unless made after obtaining validation or approval of the Japanese
Government if such validation or approval is required by Japanese law for such
writing at the time the parties execute it.
ARTICLE XX
ENTIRE AGREEMENT
This Agreement (together with the Schedules annexed hereto which are
hereby incorporated by reference) constitutes the entire agreement of the
parties and supersedes any prior agreements or understandings with the
exception of the License and Technical Assistance Agreement and Tradename and
Trademark License Agreement among CRBL, CRJ and AJI dated March 24, 1978.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their duly authorized representatives on the day and year first
set forth above.
AJINOMOTO CO., INC.
By
-----------------------------------
THE XXXXXXX RIVER BREEDING
LABORATORIES, INC.
By
-----------------------------------
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SCHEDULE A
TERRITORY
Afghanistan, Bangladesh, Burma, Cambodia, Sri Lanka, People's
Republic of China and Republic of China, Hong Kong, Indonesia, Japan, Republic
of Korea, Democratic People's Republic of Korea, Laos, Malaysia, People's
Republic of Mongolia, Pakistan, Republic of Philippines, Singapore, Thailand
and The Socialist Republic of Xxxx-Xxx.
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XXXXXXXX X
REPORTS
1) Weekly sales and production results.
2) Monthly sales results, report on number of animals produced and shipped,
estimate of net income.
3) Quarterly sales results, P&L statement, report on number of animals produced
and shipped, balance sheet, key expense summary, analysis of general production
expense, analysis of general and administrative expenses, analysis of delivery
expense/(income), report on capital expenditures (only during periods of
expansion).
4) Annual average manpower analysis by job classification and analysis of
employee payroll rates.
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AMENDMENT AGREEMENT
THIS AGREEMENT, made and entered this 2nd day of December 1982 by and among THE
XXXXXXX RIVER BREEDING LABORATORIES, INC., XXXXXXX RIVER JAPAN, INC. and
AJINOMOTO CO., INC.
WITNESSETH:
WHEREAS, the parties hereto entered into License and Technical Assistance
Agreement and Tradename and Trademark License Agreement dated March 24, 1978
which was amended by Amendment Agreement dated the 19th day of October, 1978
(as so amended, hereinafter called "the License Agreement"),
WHEREAS, the parties hereto have agreed to make certain changes to Paragraph
(1) of Article XI CONSIDERATION, of the License Agreement,
NOW, THEREFORE, in consideration of the premises and of the mutual agreement
hereinafter contained, the parties hereto agree as follows:
1. Paragraph (1) of Article XI CONSIDERATION, of the License Agreement is
hereby amended to read as follows.
(1) In consideration for the rights granted to it pursuant to Article II, III,
V and VI of this Agreement, CRJ shall pay to CRBL the following royalties
and/or fees:
A. Three percent (3%) of the net sales price of rats and mice of the
PRODUCTS sold by CRJ and its sublicensees. Provided, however, that if
the annual pre-tax net profit on sales of such rats and mice of CRJ
is ten percent (10%) or more in the fiscal year ending on March 31,
1986, the royalty shall continue at three percent (3%) for the
succeeding fiscal year; if such annual pre-tax net profit on sales of
CRJ is less than ten percent (10%) in the fiscal year ending on March
31, 1986 the royalty shall be two percent (2%) for the succeeding
fiscal year; after the close of each fiscal year thereafter until the
expiration of the license with respect to LABORATORY ANIMALS which
are rats and mice a similar review shall occur and the royalty rate
shall be established for the succeeding fiscal year at either three
percent (3%) or two percent (2%).
B. Three percent (3%) of the net sales price of each species of
LABORATORY ANIMALS other than rats and mice sold by CRJ
and its sublicensees from the date of the initial sale in commercial
quantities of each such species bred by CRJ or its sublicensees until
the expiration of a period consisting of ten (10) full fiscal years
of CRJ, which period commences on the first day of the corporate
fiscal year which falls on or immediately follows the date of such
initial sale; provided, however, that the same annual review as for
rats and mice shall be performed with respect to each separate
species to determine the royalty rate (be it two percent (2%) or
three percent (3%) for the eleventh (11th) and subsequent fiscal
years.
C. Three percent (3%) of the net sales price of FEED FOR LABORATORY
ANIMALS and EQUIPMENT manufactured and sold by CRJ and its
sublicensees under TECHNICAL INFORMATION heretofore supplied and/or
future TECHNICAL INFORMATION to be supplied on or before June 30,
1982, provided that such royalty shall cease to be payable after June
30, 1982 with respect to the Products referred to above. Provided
further that if any new TECHNICAL INFORMATION with respect to FEED
FOR LABORATORY ANIMALS and EQUIPMENT is supplied after June 30, 1982,
the royalty applicable to FEED FOR LABORATORY ANIMALS and EQUIPMENT
manufactured thereafter using such new TECHNICAL INFORMATION shall be
agreed upon between CRBL and CRJ on a case by case basis.
D. Three percent (3%) of all engineering or professional fees which CRJ
and its sublicensees receive with respect to the sublicense,
rendering of services or other authorized dissemination of TECHNICAL
INFORMATION in connection with EQUIPMENT not resulting in the sale of
the PRODUCTS or which are not measured by sale of the PRODUCTS.
2. The amendment set forth above shall be subject to the necessary
authorization by the Japanese Government under the Foreign Exchange and Foreign
Trade Control Law and shall become effective when such authorization is
granted.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized representatives on the day and year first
above written.
THE XXXXXXX RIVER BREEDING
LABORATORIES, INC.
By
------------------------------------------
Xxxxx X. Xxxxxx, President
AJINOMOTO CO., INC.
By
------------------------------------------
Katsuhiro Utada, President
XXXXXXX RIVER JAPAN, INC.
By
------------------------------------------
Xxxxx Xxxx, President
3
AMENDMENT AGREEMENT
THIS AGREEMENT, made this 19 day of October 1978 by and between THE
XXXXXXX RIVER BREEDING LABORATORIES, INC.(hereinafter called "CRBL"), XXXXXXX
RIVER JAPAN, INC.(hereinafter called "CRJ") and AJINOMOTO CO., INC.(hereinafter
called "AJINOMOTO")
WITNESSETH:
WHEREAS, CRBL, CRJ, and AJINOMOTO entered into the License and Technical
Assistance Agreement and Tradename and Trademark License Agreement dated March
24,1978 (hereinafter called the "License Agreement");
WHEREAS, thereafter the Japanese Fair Trade Commission indicated that
certain provisions of the License Agreement are in violation of the Japanese
Law relating to Prohibition of Private Monopoly and Methods of Preserving Fair
Trade, and requested that such provisions be either deleted or amended so as to
be in accord with the said Law; and
WHEREAS, CRBL, CRJ, and AJINOMOTO are willing to amend such provisions of
the License Agreement as hereinafter provided.
NOW, THEREFORE, the parties hereto hereby agree as follows:
1. Paragraph (1) of Article IV of the License Agreement is hereby amended
by deleting the words "and for two (2) years thereafter" in line 4 thereof so
that said Paragraph (1) will read as follows:
"(1) CRBL hereby covenants that it shall not utilize or
license others to utilize the TECHNICAL INFORMATION for the purpose of
breeding, use or sale of the PRODUCTS in the TERRITORY during the term of this
Agreement, provided that the term of this Agreement with respect to TECHNICAL
INFORMATION concerning a particular species shall be that period during which
royalties are paid with respect to such species; if royalties never become
payable with respect to a particular species, CRBL's covenant against
utilization and licensing of such species shall cease at the time any such
species is no longer subject to the licensing provisions of this Agreement."
2. Paragraph (2) of Article X of the License Agreement is hereby amended
by deleting the word "perpetual" in line 3 thereof and inserting an additional
proviso at the end thereof so that said Paragraph (2) will read as follows:
"(2) Solely in consideration for the covenants and rights
granted to it by CRBL in Paragraph (1) of this Article X, CRJ hereby grants
CRBL the worldwide, nonexclusive right to use all improvements, discoveries,
inventions and modifications made or developed by CRJ or its sublicensees or
any person manufacturing the PRODUCTS for or on behalf of CRJ relating to the
TECHNICAL INFORMATION and PRODUCTS; provided that during the exclusive period
provided for in Paragraph (1) of Article II, CRBL agrees not to use within the
TERRITORY any such improvements, discoveries, inventions and modifications;
provided, further, that if this Agreement is terminated pursuant to the
provisions of Paragraphs (2) (where breach is that of CRJ) or (5) of Article
XVI hereof, CRBL shall continue to have the non-exclusive right to use such
improvements, discoveries, inventions and modifications after the termination."
3. Paragraph (1) of Article XVIII of the License Agreement is hereby
amended by replacing the words "(where breach is that of CRBL), (4) or (5) of
Article XVI hereof" in line 6 thereof with the words "(where CRBL fails to
fulfill its material obligation under this Agreement with the intention to
terminate this Agreement) of Article XVI hereof" so that said Paragraph (1)
will read as follows:
"(1) In order to xxxxxx and promote the attainment of the
aims and objectives of CRJ, CRBL agrees that during the term of this Agreement
and for a period of two years after this Agreement or any license of TECHNICAL
INFORMATION hereunder with respect to a particular species is terminated in
accordance with Paragraph (2) (where CRBL fails to fulfill its material
obligation under this Agreement with the intention to terminate this Agreement)
of Article XVI hereof, CRBL shall not, directly or indirectly (through a firm,
joint venture, company or business owned or controlled by it or otherwise),
except through CRJ, engage in the business in the TERRITORY to produce
laboratory animals and/or feed for laboratory animals and/or equipment which
are reasonably competitive with the PRODUCTS or shall not acquire in the
TERRITORY an interest in any firm or business organization producing, selling,
promoting or dealing in laboratory animals and/or feed for laboratory animals
and/or equipment which are reasonably competitive with the PRODUCTS."
4. Paragraph (2) of Article XVIII of the License Agreement is hereby
amended by replacing the words "(where the breach is that of CRJ) of Article
XVI hereof" in lines 4 and 5 thereof with the words "(where CRJ fails to
fulfill its material obligation under this Agreement with the intention to
terminate this Agreement) of Article XVI hereof" so that said Paragraph (2)
will read as follows:
"(2) In order to promote fairness and appropriateness and the
attainment of objectives of CRBL, CRJ agrees that for a period of two (2) years
following the termination of this Agreement in accordance with the provisions
of
2
Paragraph (2) (where CRJ fails to fulfill its material obligation under this
Agreement with the intention to terminate this Agreement) of Article XVI
hereof, CRJ shall not, directly or indirectly, (through a firm, joint venture,
company or business owned or controlled by it or otherwise) engage in the
business in the TERRITORY of producing any laboratory animals or any food for
laboratory animals or any equipment which is reasonably competitive with the
PRODUCTS and shall not acquire in the TERRITORY any interest in any firm or
business organization producing, selling, promoting or dealing in any such
laboratory animals and/or feed for laboratory animals or equipment which are
reasonably competitive with the PRODUCTS."
5. The amendments set forth above shall be subject to the necessary
validation by the Japanese Government under the Law concerning Foreign
Investment and shall become effective when such validation is granted.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized representatives on the day and year first
above written.
THE XXXXXXX RIVER BREEDING
LABORATORIES, INC.
By
-----------------------------------------------
XXXXXXX RIVER JAPAN, INC.
By
-----------------------------------------------
AJINOMOTO CO., INC.
By
-----------------------------------------------
3
AJINOMOTO CO., INC.
00- 0. XXXXXXXX XXXXXXX XXXX-XX.
XXXXX 000, XXXXX
January 17, 1994
Xx. Xxxxx X. Xxxxxx
President
The Xxxxxxx River Laboratories, Inc.
000 Xxxxxxxxxxx xxxxxx
Xxxxxxxxxx, Xxxxxxxxxxxxx 00000
X.X.X.
VIA AIRMAIL
Re: Amendment of JOINT VENTURE AGREEMENT
Dear Sir:
AS you may already be aware, the Japanese Stock Corporation Law and
supplemental laws thereof have been amended effective as of the 1st day of
October, 1993. Under the laws as amended, corporations with stated capital
exceeding 500,000,000 Japanese yen shall have at least three (3) auditors, the
term of office of whom shall be three (3) years.
Such corporations falling within the abovementioned category which
currently have only two (2) auditors are required to increase the number of
auditors to at least three (3) by the end of the general meeting of
shareholders to settle the first accounting period the end of which arrives
after October 1, 1993. Therefore, it in necessary for Xxxxxxx River Japan,
Inc. ("CRJ") to increase its auditors from two (2) to three (3) or more by the
end of the ordinary general meeting of shareholders to be held in June, 1994.
Accordingly, we would like to propose amending Article II Paragraph
(5) of the JOINT VENTURE AGREEMENT with respect to CRJ dated the 24th day of
June, 1981 (the "JVA" to read as follows:
"The parties hereto agree that they will vote their shares of CRJ in
such manner that at all times during the effective period of this
Agreement there shall be three statutory auditors (Kansayaku) of
CRJ; one to be a person designated by AJI, one to be a person
designated by CRL, and one to be a person designated by agreement
between AJI and CRL.
Taking this opportunity, we would also like to amend certain parts of
the JVA as set forth below.
(a) All references to "THE XXXXXXX RIVER BREEDING
LABORATORIES, INC." in the JVA shall be amended to read
"THE XXXXXXX RIVER, LABORATORIES, INC.", and all references
-1-
AJINOMOTO CO., INC.
to "CRBL" in the JVA shall be amended to read "CRL".
(b) CRL and AJI have agreed, at the ordinary general meeting of
shareholders of CRJ held this June, to increase the number of
directors of CRJ from ten to twelve, and have casted their
votes as shareholders of CRJ at such meeting in such manner
that the two persons designated by CRL and AJI, respectively,
be appointed as directors of CRJ. Accordingly, Article II,
Paragraph (1) shall be amended to read as follows:
"CRJ has a Board of Directors consisting of twelve directors.
The parties hereto agree that they will cast their votes as
shareholders of CRJ in such manner that the Board of Directors
shall consist of an equal number of persons designated by AJI
and CRL."
(c) The address of our company provided for in Article XVII,
Paragraph (1) shall be amended to read as follows:
"TO: AJINOMOTO CO., INC.
President
00-0, Xxxxxxxx xxxxxxx
Xxxx-xx, Xxxxx
Xxxxx"
If the foregoing is acceptable, please sign and return one original of
this letter.
Very truly yours,
Ajinomoto Co., Inc.
------------------------------------
President
Agreed and accepted.
The Xxxxxxx River Laboratories, Inc.
------------------------------------
President
(Date)
------------------------------------
-2-
ADDENDUM
This ADDENDUM made and entered into as of August 30, 1996 by and
between The Xxxxxxx River Laboratories, Inc., a corporation organized and
existing under the laws of Delaware, having its principal place of business at
000 Xxxxxxxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxxxxxxx 00000, the United States of
America (hereinafter referred to as "CRL") and Ajinomoto Co., Inc., a
corporation organized and existing under the laws of Japan, having its
principal place of business at 00-0, Xxxxxxxx 0 xxxxx, Xxxx-xx, Xxxxx 000,
Xxxxx (hereinafter referred to as "Ajico")
WITNESSETH:
WHEREAS, the parties hereto have entered into a Joint Venture
Agreement dated June 24, 1981, as amended an June 15, 1987 and an January 17,
1994 (as so amended, hereinafter referred to as "Original Agreement') for the
production of laboratory animals and/or feed for laboratory animals; and
WHEREAS, the parties hereto have been engaged in the production of
laboratory animals and feed for laboratory animals through Xxxxxxx River
Japan, Inc. (hereinafter referred to as "CRJ") in Japan; and
WHEREAS, CRL desires to produce and/or sell laboratory animals and
feed for laboratory animals through a joint venture company to be established
with The Shanghai No. 1 Biochemical & Pharmaceutical Company of China in the
People's Republic of China; and
WHEREAS, CRL and Ajico agreed to exclude the People's Republic of
China from the territory for CRJ which was stipulated in the Original
Agreement an the terms and conditions provided in the letter agreement as of
July 12, 1996 sent from Xx. Xxxxxxxxx Xxxxxx, Executive Managing Director of
Ajico and accepted by Xx. Xxxxx X. Xxxxxx, President & CEO of CRL as of July
31, 1996 (hereinafter referred to as "Letter Agreement"),
NOW, THEREFORE, in consideration of the premises and mutual
covenants herein contained, both parties hereto agree as follows:
Article 1. (Amendment to the Joint Venture Agreement).
Schedule A attached to the Original Agreement shall be amended by
eliminating "the People's Republic of China" therefrom.
Article 2. (Payment of the Compensation)
As the compensation for CRJ's giving up of the exclusive territory of
the People's Republic of China, CRL shall pay CRJ three percent (3%) of the
net sales of laboratory animal and feed therefor made in, to or from the
People's Republic of China by CRL, or any third party in which CRL has,
directly or indirectly, share of interest or any third party with which CRL
has a cooperative arrangement therefor including, but not limited to,
licensing arrangement and distribution arrangement (such third party shall be
hereinafter collectively referred to as "CRL Partner").
For the purpose of this Article 2 "net sales" means an aggregate
amount of gross invoice price less only commercial, trade or cash discounts
and adjustments actually allowed to customers.
Payment of the Compensation provided for above shall be made to CRJ
quarterly within three (3) months after the end of each fiscal quarter of CRL.
The payment to CRJ after deducting any withholding tax applicable, unless
otherwise instructed by CRJ, shall be made in Japanese currency at the
exchange rate of Citybank N.A., New York, Now York the United States
prevailing on the date of payment. All such exchange charges shall be borne by
CRL.
CRL shall maintain, or shall cause CRL Partner to maintain, adequate
records so that the net sales can be determined.
CRL shall render to CRJ within three (3) months after the end of each
fiscal year of CRL, a statement of sales separately stating sales of
laboratory animals by species, feed for laboratory animals for the preceding
fiscal year of CRL; such statement shall be certified as accurate by an
independent public accountant.
Article 3. (Exportation)
CRL or CRL Partner may export laboratory animals and feed therefor
produced in the People's Republic of China to Japan and Korea an condition
that CRJ is appointed as the sole and exclusive importer of such laboratory
animals and
feed therefor within the territory of Japan and Korea. The details of the
terms and conditions for such exclusive importation of the laboratory animals
will be provided in an Exclusive Exportation Agreement to be separately
negotiated and entered into by CRJ and CRL or CRL Partner. CRL and Ajico
hereby confirm that the preceding provision shall in no way affect the status
of Japan and Korea as a part of the territory reserved exclusively for CRJ as
specified in Schedule A of the Original Agreement (as amended pursuant to
Article 1 hereon, and therefore, the export to Japan and Korea as well as
other countries in the territory shall be subject to the control of CRJ.
Article 4. (Term)
This ADDENDUM shall become effective as of August 30, 1996 and shall
continue in full force and effect as long as the Original Agreement remains
effective.
IN WITNESS WHEREOF, the parties hereto have caused this ADDENDUM to
be signed by their respective duly authorized representatives on the date
first above written
The Xxxxxxx River Laboratories, Inc.
/s/ Xxxxx X. Xxxxxx
-------------------------------------
Xxxxx X. Xxxxxx
President and Chief Executive Officer
Date: Oct. 2, 1996
-------------------------------
Ajinomoto Co., Inc.
/s/ Shunsuke Inamori
-------------------------------------
Shunsuke Inamori
President
Date: September 26, 1996
-------------------------------
ORIGINAL FILED IN ORIGINAL DOCUMENTS FILE
[Letterhead of Ajinomoto Co., Inc.]
October 25, 1978
Xx. Xxxxx X. Xxxxxx
Xxxxxxx River
Breeding Laboratories
000 Xxxxxxxxxx Xx.
Xxxxxxxxxx, Xxxxxxxxxxxxx
U. S. A.
Dear Xx. Xxxxxx,
Kindly find enclosed original of Amendment Agreement duly signed by all
the parties concerned.
Please be advised that the Agreement was accepted by our Fair Trade Commission
on October 20, and approved by The Bank of Japan on October 25.
Thanking you for your cooperation on this matter, with best wishes,
Very truly yours,
Ajinomoto Co., Inc.
---------------------------
Izumi Hayashi
Director of Patents & Licensing
Enc. Amendment Agreement (Original)
MEMORANDUM OF AGREEMENT
THIS MEMORANDUM OF AGREEMENT, made this 24th day of March, 1978, by and
among The Xxxxxxx River Breeding Laboratories, Inc. ("CRBL"), Ajinomoto Co.,
Inc. ("Ajinomoto"), Xxxxxxx River Japan, Inc. having its principal office at
00-0, Xxxxxx-xxx 0-xxxxx, Xxxx-xx, Xxxxx, Xxxxx ("Old CRJ") and Xxxxxxx River
Japan, Inc. having its principal office at 000, Xxxx, Xxxxxx-xxx, Xxxxxxxx-xxx,
Xxxxx ("New CRJ").
WITNESSETH:
WHEREAS, Ajinomoto has proposed that Old CRJ be dissolved and liquidated
as of the date hereof and transfer all its business and assets to New CRJ which
has been established as a wholly-owned subsidiary of Ajinomoto as of the date
hereof, that the License and Technical Assistance Agreement and Tradename and
Trademark License Agreement between CRBL and Old CRJ dated October 28, 1974 be
terminated as of the date hereof and that a new License and Technical
Assistance Agreement and Tradename and Trademark License Agreement having
substantially the same provisions be executed between CRBL and New CRJ as of
the date hereof; and
WHEREAS, CRBL is willing to accept the above-mentioned proposal of
Ajinomoto;
NOW, THEREFORE, the parties hereto hereby agree as follows:
1. The License and Technical Assistance Agreement and Tradename and
Trademark License Agreement between CRBL and Old CRJ dated October 28, 1974
("Old License Agreement"), together with the guarantee by Ajinomoto of Old
CRJ's obligations thereunder, shall be and is hereby terminated as of the date
hereof and shall cease to have any further effect except as expressly specified
therein.
2. The Letter Agreement among CRBL, Old CRJ and Ajinomoto dated February
4, 1977 shall be and is hereby cancelled as of the date hereof, and all the
royalty payments deferred pursuant to the said Letter Agreement shall be paid
together with interest set forth therein within thirty (30) days after the date
of the necessary approval thereof by the Japanese Government.
3. CRBL and New CRJ are this date entering into a new License and
Technical Assistance Agreement and Tradename and Trademark License Agreement
("New License Agreement"), and CRBL hereby approves and agrees
that Old CRJ may disclose to New CRJ for use by New CRJ under the New License
Agreement any and all of the Technical Information which CRBL has disclosed to
Old CRJ pursuant to the Old License Agreement.
4. The Termination Agreement between Ajinomoto and CRBL dated August 15,
1974 as amended on August 28, 1975 shall be and is hereby cancelled as of the
date hereof and shall have no further effect; provided, however, that Ajinomoto
hereby agrees with CRBL as follows:
(1) In case Ajinomoto desires to sell any part of shares in New CRJ during
the effective term of the New License Agreement, it must first offer such
shares to CRBL at the same bona fide price offered by third party. If CRBL
does not agree to purchase such shares at such price within sixty (60)
days after receipt of Ajinomoto's notice of its desire to sell such
shares, Ajinomoto may within ninety (90) days thereafter sell such shares
at such price to such third party. Any such buyer shall be bound by the
same agreements as Ajinomoto under this Memorandum of Agreement.
(2) Ajinomoto agrees for itself and for its affiliates that so long as it
has a controlling interest in New CRJ or business to be operated by New
CRJ under the New License Agreement, it will not, directly or indirectly
(through a firm, joint venture, company or business owned or controlled by
it or otherwise), except through New CRJ, engage in the business in the
Territory (as defined in the New License Agreement) to produce Laboratory
Animals and/or Feed specially formulated for Laboratory Animals and/or
Equipment which are reasonably competitive with the Products (as defined
in the New License Agreement) or shall not acquire in the Territory an
interest in any firm or business organization (other than New CRJ)
producing, selling, promoting or dealing in laboratory animals and/or feed
for laboratory animals and/or equipment which are reasonably competitive
with the Products.
(3) Ajinomoto agrees for itself and for its affiliates that it will
maintain in strict confidence and will not make any unauthorized use or
disclosure of Technical Information (as defined in the New License
Agreement) and other confidential technical, economic and marketing
information received from CRBL, Old CRJ and/or New CRJ, as the case may
be, so long as and to the extent that such Technical Information or such
other information remain unpublished; provided, however, that nothing
herein shall prevent disclosure or use of such Technical Information or
such other information which was known to the recipient at the time of
disclosure, or which are properly obtained by the recipient from some
source other than, directly or indirectly from CRBL, Old CRJ or New CRJ,
as the case may be.
2
IN WITNESS WHEREOF, the parties hereto have caused this instrument to be
executed by their duly authorized representatives on the date and year first
above written.
The Xxxxxxx River Breeding Laboratories, Inc. ("CRBL")
------------------------------------------------------
Ajinomoto Co., Inc. ("Ajinomoto")
------------------------------------------------------
Xxxxxxx River Japan, Inc. ("Old CRJ")
------------------------------------------------------
Xxxxxxx River Japan, Inc. ("New CRJ")
------------------------------------------------------
3
ANNEX 1
LIST OF THE BUILDINGS
ITEM NAME OF BUILDING SQUARE(M2)
-----------------------------------------------------------------------
1 Synthetic Building 1,800
2 Air-Condition Room 40
3 Acid Soaking Room 5
4 Human Waste Treatment Pool 16.4
5 Water Pool 00
0 Xxxxxx Xxxx 000
0 Cement Drainpipes 108m
8 Cement Drainpipes 36m
9 Iron Railing 269m
10 Stone Wall 54m
11 Pools & Flower Beds
12 Park Shed 72
13 Tree-planting 3,000
2
ANNEX 2
3
ASSET TRANSFER AGREEMENT
THIS AGREEMENT is entered into on this 1st day of Sept. 1997 by and between
Zhanjiang Scientific & Technical Service Centre, Guangdong, the People's
Republic of China and Zhanjiang A & C Biological Ltd., Guangdong, the People's
Republic of China.
PRELIMINARY STATEMENT
This Agreement is entered into in accordance with Clause 6.5 of the Joint
Venture Contract dated [ ] ("the JV-Contract") by and between Zhanjiang
Scientific & Technical Service Centre of China, ("Party A") and Xxxxxxx Xxxxxx
Laboratories Inc., of the United States of American, ("Party B"). In accordance
with the JV-Contract, Zhanjiang Scientific & Technical Service Centre shall
sell certain assets to the Zhanjiang A & C Biological Ltd.
ARTICLE I - DEFINITIONS
The following terms used in this Agreement shall have the following meanings:
1.1 "Associated Company" means any company or organisation which is under
common ownership or control as one of the parties to this Agreement.
"Consideration" means that amount described in Clause 3 of this
Agreement
"Effective Date" means the date upon which Party B receives it's
Investment Certificate, in accordance with Clause 5.5 of the
JV-Contract, for its capital contribution to the Purchaser.
"Appraisal Report" means the financial audit carried out by the
Zhanjiang Asset Appraisal Corporation on 10 April 1996.
"Investment Certificate" means the investment certificate(s) referred
to in Clause 5.5 of the JV-Contract.
"Price Waterhouse Report" means the financial report carried out by
Price Waterhouse the international firm of accountants on 12
September 1996.
"Products" means any Tachypleus Amebocyte Lysate products.
4
"Purchaser" means the new Sino-foreign joint venture company called
Zhanjiang A & C Biological Ltd registered in Zhanjiang Guangdong,
whose legal address is 38 Middle of People Avenue, Zhanjiang,
Guangdong, Peoples republic of China.
"Sale Assets" means the plant and machinery set out in Schedule I to
this Agreement.
"Trade-Know How" means all the knowledge and know-how developed and
used by the Vendor, Zhanjiang Sino-American Biological Ltd. or any
Associated Company of either in manufacturing Products in China
including but not limited to business and governmental contacts and
connections;
"Vendor" means Zhanjiang Scientific & Technical Service Centre
registered in Zhanjiang, Guangdong, the Peoples Republic of China and
with it's legal address at 0 Xxxxx Xxxx, Xxxxxxx, Xxxxxx, Zhanjiang,
Guangdong, the Peoples Republic of China.
ARTICLE 2 - SALE AND PURCHASE
2.1 The Vendor as beneficial owner shall sell and the Purchaser, relying upon
the representations warranties and undertakings of the Vendor contained in
this Agreement, shall purchase the Sale Assets and Trade-Know How free
from all forms of security or restrictions of any kind, adverse claims or
reservations of title and upon the terms of this Agreement. It should be
noted that in purchasing the Trade Know-How, the Purchaser has properly
reimbursed the Vendor for the intangibles assets, as valued in the
Appraisal Report and approved in the Price Waterhouse Report, and no more
money shall be due to the Vendor in that regard.
ARTICLE 3 - CONSIDERATION
3.1 The Consideration for the sale and purchase of the Sale Assets shall be
the payment in cash of US$789,166, which can be divided into:
Plant and Machinery US$311,075
Trade-Know How US$478.091
----------
US$789,166
5
3.2 Payment of the Consideration shall be made by the Purchaser to the Vendor
in two instalments: 3.2.1 The first instalment of USS266,750 shall be made
on the Effective Date. 3.2.2 The final instalment of USS522,416 shall be
made at the request of the Vendor, but no sooner than the first day upon
which both of the Parties have made their full contributions to the
Purchaser in accordance with Clause 5.2 and 5.3 of the JV-Contract and
have obtained the relevant Investment Certificates.
ARTICLE 4 - WARRANTIES AND UNDERTAKINGS
4.1 The Vendor is or was the only owner of equity in a Sino-foreign equity
joint venture company called Zhanjiang Sino-American Biological Ltd. ("Old
JVI").
4.1.1 The business of the Old JV is in direct competition to that of the
Purchaser. From the Effective Date, the Vendor undertakes and
warrants that neither it nor the Old JV nor any Associated Company of
either will from the Effective Date carry out business which will in
the reasonable opinion of the Purchaser in any way compete ,with the
business of the Purchaser.
The Vendor undertakes and warrants that it's senior representatives,
Xxxxx XxxXxx and Fen Jujin, shall take on any role for the Purchaser
as the Purchaser shall request and shall not in any event work for
any organisation, which in the reasonable opinion of the Purchaser,
is in competition, whether direct or otherwise with the Purchaser.
4.2 The Vendor further warrants and undertakes that:
4.2.1 all customers that currently obtain their Products from either the
Vendor, the Old JV or from any Associated Company shall obtain any
future Products from the Purchaser.
4.2.2 all suppliers that currently provide materials used in the
production of the Products by either the Vendor, the Old JV or any
Associated Company will be prepared to supply such materials to the
Purchaser on terms at least as favourable as those previously offered
to the aforementioned companies.
6
4.2.3 neither the Purchaser nor Party B shall in any way be responsible
for any liabilities of the Vendor, the Old JV or any Associated
Company.
4.2.4 the Sale Assets include at least all of the assets in the Appraisal
Report in the category of Plant and Machinery as approved in the
Price Waterhouse Report.
4.2.5 it has the fight and title to the Sale Assets and Trade Know-How
and has the authority to deal with the Sale Assets and Trade-Know How
in its entire discretion in accordance with the relevant laws.
4.2.6 it has obtained all the relevant approvals for the sale of the Sale
Assets and the Trade-Know How under the terms of this Agreement and
the value of these items has been valued and verified in accordance
with the relevant laws.
7
4.2.7 the Sale Assets and Trade-Know How represent all the plant and
machinery and knowledge used by the Vendor and any Associated Company
of either in its current business with the same business scope as
that of the Purchaser.
4.2.8 the Sale Assets and Trade-Know How will put the Purchaser in the
position to be able to commence it's new business of producing
Products and carry out the business scope of the Purchaser.
4.2.9 the Sale Assets and the Trade Know-How shall be transferred to the
Purchaser in accordance with the law.
ARTICLE 5 - RISK PROPERTY AND TITLE
5.1 Risk and property in and title to the Sale Assets and where appropriate
Trade-
Know How shall pass to the Purchaser on the Effective Date.
ARTICLE 6 - INDEMNITY
6.1 The Vendor hereby undertakes to indemnify and hold harmless the Purchaser
and Party B from and against any and all losses, costs, liabilities and
expenses incurred by the Purchaser as a result of any representation
warranty or undertaking given or made by the Vendor in connection with
this Agreement proving untrue or misleading. In particular the Vendor
shall indemnify the Purchaser for any cost it may incur in relation to the
increase in the Consideration in Clause 3.1
ARTICLE 7 - TAXATION
7.1 The Vendor hereby undertakes to indemnify the Purchaser from any taxation
to which it is liable in purchasing or using the Sale Assets or Trade
Know-How.
ARTICLE 8 - MAINTENANCE OF TRADE
CONTRACTS AND CONNECTIONS
8
8.1 Beginning immediately after the signature hereof and continuing for such
period as the Purchaser may require, the Vendor shall use its best efforts
to help the Purchaser to make and xxxxxx such personal contacts and
connections with individuals representing the principal customers and
suppliers of the Vendor, the Old IV or any Associated Company of either as
may best enable the Purchaser to build its business.
ARTICLE 9 - ASSIGNMENT
9.1 This Agreement may not be assigned by either the Vendor or the Purchaser.
ARTICLE 10 - FURTHER ASSURANCE
10.1 The Vendor will do such acts and things and execute such documents as may
be necessary to vest the Sale Assets and where appropriate the Trade-Know
How in the Purchaser.
ARTICLE 11 - WAIVER
11.1 No waiver by the Purchaser of any of the requirements hereof or of any of
its rights hereunder shall release the Vendor from fall performance of its
remaining obligation stated herein.
ARTICLE 12 - ENTIRE AGREEMENT
12.1 This Agreement (together with any documents referred to herein)
constitutes the whole agreement between the Parties hereto relating to its
subject matter and no variations hereof shall be effective unless made in
writing and signed by the legal representative of both Parties.
ARTICLE 13 - APPLICABLE LAW
13.1 This Agreement shall be subject to and shall be construed in accordance
with the law of the People's Republic of China.
ARTICLE 14 - DISPUTE RESOLUTION
9
14.1 Any disputes arising from the execution of or in connection with this
Contract shall be settled through friendly consultations between the
Parties. In case no settlement can be reached through consultations within
sixty (60) days after a Party has given notice to the other Party of the
matter in dispute, the disputes shall be submitted to the China
International Economic and Trade Arbitration Commission in accordance with
it's existing rules of arbitration. The arbitration award is final and
binding upon both parties to this Agreement.
10
14.2 During the arbitration, this Agreement shall be performed continually by
the Parties except for matters in dispute, and the arbitration proceedings
shall not prevent any Party from exercising its right of termination under
this Contract.
ARTICLE 15-LANGUAGE
15.1 This Agreement shall be written in Chinese and English. While both the
Chinese and English versions are both legal and binding versions, in the
event of a conflict between the provisions of the two versions, the
English one shall prevail.
This Agreement is signed, by the duly authorised representatives of both
Parties as of the date first before written.
Vendor: Zhanjiang Scientific & Technical Service Centre
Authorised Representative:
Purchaser: Zhanjiang A&C Biological Ltd.
Authorised Representative:
11
SCHEDULE I
ITEM NAME OF THE EQUIPMENT QUANTITY
--------------------------------------------------------------------------------
I Centrifuge 1
2 Centrifuge 2
3 High Capacity Refrigerated Centrifuge 1
4 Refrigerated Centrifuge 1
5 Refrigerated Ultracentrifuge 1
6 Centrifuge 1
7 Desk Centrifuge 1
8 Lyophilizer 1
9 Lyophilizer 1
10 Dust Particle Counter 1
11 Ampoules Filling & sealing machine 1
12 Aspirator 2
13 Single Pan Balance 1
14 Agitator 2
15 Air Supply Apparatus 1
16 Manual Perfusion Unit 1
17 Vacuum Pump 1
18 Dust Catcher 3
19 Electric Heating Sterilizer 2
20 Automatic Pure Water Distiller 1
21 Refrigerator 2
22 Vapour Aspirator 3
23 Air Conditioner 1
12
24 Air Conditioner 1
25 Air Conditioner 2
26 Air Conditioner 1
27 Clean Beach 1
28 Clean Beach 1
29 Clean Beach 1
30 Clean Beach 1
31 Transformer 1
32 Power Distribution Screen Control 4
33 Power Distribution Screen Control 10
34 Power Distribution System 1
35 Power Supply Expense 1
36 Running Water Net Expense 1
37 Drainpipe Erection Expense 1
38 Exhaust Pipes 1
39 Telephone 4
40 Electric Welding Set 1
41 Refrigerator 1
42 Freezer 1
43 Freezer 1
44 Refrigerator 1
45 Refrigerator 1
46 Refrigerator 1
47 Refrigerator 4
48 Refrigerator 1
49 Refrigerator 1
13
50 Freezer 2
51 Binocular Microscope 1
52 Liquid Nitrogen Tank 2
53 Ultraviolet Analytical Apparatus 1
54 PH Meter 2
55 Filter 2
56 Severing Machine 1
57 Electrophoresis Apparatus 1
58 Water Bath Incubator 1
59 TV Set 1
60 Air Bath Incubator 1
61 Spectrophotometer 1
62 Pump 1
63 Drill Machine 1
64 Thermostat Cradle 1
65 Ampoules Printer 1
66 Fibre Filter 1
67 Filter 1
68 Blower 1
69 Purified System 1
70 Sterilizer 1
71 Oil Boiler 1
72 Accessories for Oil Boiler
73 Stainless Water Distiller 1
74 Super Pure Water Distiller 1
75 Air-Condition & Purifying Xxxx 0
00
00 Xxx-Xxxxxxxxx & Xxxxxxxxx Xxxx 0
00 Xxx-Xxxxxxxxx Xxxxx 0
00 Xxxxx Pump 1
79 Water Pump 1
80 Pump 1
81 Cooling Pipes 1
82 Vapour Sterilizer 1
83 Bottles Washer 1
84 Vials Washer 1
85 Ampoules Dehydrate Machine 2
86 Capping Machine 2
87 Diesel Generator 1
88 Filling & sealing machine 1
89 Filling & sealing machine 1
90 Filling & sealing machine 1
91 Generator 1
92 Oven 2
93 Dryer 1
94 Dryer 1
95 Motorcar 1
96 Motorcycle 2
97 Chinese-English Printer 1
98 Fax Machine 1
99 Computer Printer 1
100 Enzyme Labelling Analytical Set 1
101 PH Meter 1
15
102 Balance 5
103 Washing Machine 1
104 Ampoules Washer 1
105 TV Antenna Wire Net 1
106 Electric Fan 4
107 Air Exhaust Pipes 1
108 Mosquito Expelling Lamp 1
109 Jackscrew 1
110 Shock Driller 1
111 Miccrocoupon 1
112 Balance 1
113 Mixer 1
114 Pound Machine 1
115 Water Bath Incubator 1
116 Water Bath Incubator 1
117 Sterilizer 2
118 Bowl Sterilizer 1
119 Gas Jar & Gas Stove 1
120 Nitrogen Tank 3
121 Ultrasonic Cell Crushing Apparatus 1
122 Shed for Luminous 1
123 Air Conditioner 1
124 Shock Driller 1
125 Oven 1
126 Centrifuge 1
127 Air Conditioner 2
16
128 Refrigerator 1
129 Freezer 1
130 PH Meter 1
131 Clean Bench 1
132 Telephone System of Program Control 1
133 Disinfection Clamber 8.5m2
134 Water Bath Incubator 1
135 Cement Road 300m2
17
ANNEX3
18
TECHNOLOGY LICENSE CONTRACT
THIS CONTRACT is entered into in Zhanjiang, Guangdong, China, on this 1st day
of Sept., 1997 by and between Xxxxxxx Xxxxxx Laboratories, Incorporated, a 1997
by corporation duly organised and existing under the laws of the United States
of America, whose address for the purposes of this Contract is 000 Xxxxxxxxxxx
Xxxxxx, Xxxxxxxxxx, Xxxxxxxx, XX 00000 (hereinafter referred to as "Licensor"),
and Zhanjiang A & C Biological Ltd., a Sino-foreign joint venture registered in
Zhanjiang, Guangdong and whose address for the purpose of this Contract shall
be 38 Middle of People Avenue. Zhanjiang, Guangdong, Peoples Republic of China
(hereinafter referred to as the "Licensee"). They shall be referred to as "the
Parties" to this Contract or as the Party in relation to any one of them.
PRELIMINARY STATEMENT
This Contract is entered into in accordance with Chapter 10 of the Joint
Venture Contract dated [ ] by and between Zhanjiang Scientific & Technical
Service Centre of China, and Xxxxxxx Xxxxxx Laboratories, Incorporated of the
U.S.A. (the "JV-Contract"). As a gesture of good faith by the Licensor, the
Technology licensed under this Contract shall be provided free of charge and at
no cost to the Licensee. The terms in this Contract reflect the Licensor's
gesture.
ARTICLE I - DEFINITIONS
The following terms used in this Contract shall have the following meanings:
1.1 "Affiliate" means any company which, through ownership of voting stock or
otherwise, directly or indirectly, is controlled by, under common control
with, or in control of, a Party; the term "control" being used in the
sense of power to elect a majority of directors or to direct the
management of a company.
1.2 "Approval Authority" means the Ministry of Foreign Trade and Economic
Cooperation of China or the authority designated by such Ministry to
approve this Contract.
1.3 "Effective Date" means the effective date of this Contract as defined in
Article 9.1.
1.4 "Improvements" means any technical improvements or design modifications
made or acquired by either Party in connection with the Licensed
Technology.
19
1.5 "Products" means Tachypleus Amebocyte Lysate products.
20
1.6 "Licensed Technology' means the technical knowledge which the Licensor
owns or controls as of the Effective Date and during the term of the
JV-Contract and has full legal right to transfer or disclose to another
party, and which pertains to the manufacture of the Products.
1.7 "Supplemental Contracts" shall have the meaning set out for such term in
Article 4.2 hereof.
1.8 "Technical Documentation" and "Technical Information" means the
documentation embodying the Licensed Technology, including specifications,
data, reports and other information that may be reasonably necessary to
enable the Licensee to establish and carry 'on production of the Products
and which is owned by Licensor or which Licensor is free to disclose to
any third party.
ARTICLE 2 - RIGHTS AND LICENSES
2.1 (a) Licensor hereby grants to the Licensee:
(i) a non-exclusive license to use the Licensed Technology for the
manufacture of the Products and the provision of related
services in the People's Republic of China; and
(ii) a non-exclusive license to market, distribute and sell the
Products inside and outside the People's Republic of China.
(b) his license does not include the right to grant sub-licenses. The
Licensee shall not assist or permit others to manufacture the
Products inside or outside the People's Republic of China.
2.2 The Licensee expressly acknowledges and agrees that, other than the rights
and licenses granted under this Contract, it does not hereby acquire and
has no right or claim to any other rights in, or to the use of, other
trademarks, patents, copyright or other industrial property rights or
technical knowledge owned, used or adopted by Licensor or its Affiliates.
ARTICLE 3 - PAYMENT
3.1 No royalty or charge shall be payable by the Licensee for the rights set
out above.
21
3.2 The only payments that shall be due under this Contract shall be payable
where the Licensee has in some way breached the terms hereof In that case
the Licensee shall indemnify the Licensor for any losses made or damages
incurred due to the Licensee's breaches.
ARTICLE 4 - SCOPE OF TECHNOLOGY SERVICE
4.1 During the term of the JV-Contract, Licensor shall provide to the Licensee
Technical Information and Licensed Technology related to the Products
which, as determined by Licensor, in it's sole discretion, may be helpful
in enabling the Licensee to establish and carry on the production of the
Products.
4.2 During the term of the N-Contract, the Licensee shall supply to the
Licensor any Improvements made or obtained by it in connection with the
Licensed Technology or Products as such become available. With respect to
Improvements made or obtained by the Licensee these shall be supplied
substantially in the same form and on the same terms and conditions as
this Contract. Upon the request by the Licensor, the Licensee shall also
permit the Licensor to apply in it's own name for patents for Improvements
of the Licensee and for this purpose shall assign any rights in Q
Improvements free of charge to the Licensor. In order to obtain the
continuing benefit of the Licensor's research and development relating to
the Licensed Technology during the entire term of the Licensee's
operations, the Licensee agrees that upon the request of Licensor it shall
execute one or more further technology licenses. The contracts relating to
the Improvements and the terms for further technology licences by the
Licensor shall be referred to as the "Supplemental Contracts". (Such
Supplemental Contracts shall be effective upon approval by the Approval
Authority.)
ARTICLE 5 - TECHNICAL COMPLIANCE AND INSPECTION
5.1 The Licensee shall be responsible for maintaining the quality standard of
the Products it produces, and using the Licensed Technology in accordance
with the Technical Documentation. If at any time Licensor determines that
the Licensee is not fulfilling these obligations, Licensor shall notify
the Licensee of the deficiencies that it believes exist and propose
methods for correction. The Licensee shall cause the correction to be made
within sixty (60) days after the said notification.
22
5.2 Licensor shall be entitled at any time upon reasonable notice being given
to the Licensee to enter the premises of the Licensee for the purpose of
inspecting the work being carried out in connection with the Licensed
Technology and Products.
ARTICLE 6 - WARRANTY
6.1 Licensor warrants that as of the Effective Date it will have full legal
right to transfer and disclose the Licensed Technology to the Licensee and
that the Licensed Technology is of an advanced level by international
standard.
6.2 Licensor warrants the accuracy of the specifications included in the
Technical Documentation.
ARTICLE 7 - CONFIDENTIALITY
7.1 All Licensed Technology, advice, and other information ("Confidential
Information") provided by Licensor pursuant to this Contract shall be kept
strictly confidential by the Licensee and shall be used solely for its own
benefit in connection with the manufacture and sale of the Products
except, however, for such information that must be submitted to
governmental authorities under Chinese laws and regulations. Such
information shall be submitted to the governmental authorities only by the
General Manager of the Licensee. The General Manager shall inform the
Licensor in writing prior to such submission.
7.2 The Licensee hereby covenants and agrees to keep all such information
confidential and not, without prior express written consent of Licensor,
to communicate or allow to be communicated such information to anyone
except its own employees, and only to such extent as may be necessary for
the proper performance by such employees of their assigned tasks.
7.3 In order to ensure the observance of Articles 7.1 and 7.2 above by the
Licensee's employees, the Licensee shall cause each of its employees with
access to Confidential Information referred to in Articles 7.1 and 7.2
above to sign a Confidentiality Agreement which protects the Licensor from
breaches of these obligations by the staff of the Licensee.
7.4 The provisions of Articles 7.1 and 7.2 shall survive the term of this
Contract for five (5) years.
23
7.5 The obligations of confidentially, secrecy, non-disclosure and the
restriction of use contained herein shall not apply to Confidential
Information which the Licensee can demonstrate; (a) is available to the
public at the time it is disclosed or thereafter becomes available to the
public; or
(b) is known to the Licensee at the time of disclosure; or
(c) properly comes into the possession of the Licensee from an
independent source.
ARTICLE 8 - INFRINGEMENT AND INDEMNITY
8.1 The Licensee acknowledges that Licensor owns or controls and has
proprietary interest in the Licensed Technology and other Confidential
Information. The Licensee hereby agrees that, unless otherwise
specifically provided herein or unless Licensor has consented in writing,
it will not use or apply in the People's Republic of China for the
registration of any technology for goods and/or for services similar to
the Licensed Technology and will not do any act or permit the doing of any
act which might prevent, directly or indirectly, the registration in the
People's Republic of China of any patent right with respect to the
Licensed Technology and other Confidential Information.
8.2 Licensor is not aware of any right of a third party which might be
infringed through the exercise of the license granted to the Licensee
hereunder, but Licensor does not warrant nor shall Licensor be liable to
the Licensee on the ground that any such right of a third party in fact
exists.
8.3 In the event that any suit, action or other proceeding involving any claim
of industrial property infringement shall be threatened or instituted
against the Licensee based upon the Licensee's permitted use hereunder of
the Licensed Technology or any other Confidential Information, the
Licensee shall notify Licensor promptly thereof and shall send to Licensor
copies of any such papers which shall have been served in such suit,
action or proceeding. Licensor may, if it so elects, control the defense
of such suit at Licensor's own cost and expense. The Licensee shall have
the right to be represented by advisory counsel of its own selection at
its own expense, and shall cooperate fully in the defense of any such
suit. If Licensor does not elect to control the defense of such suit, the
Licensee shall undertake such control at the Licensee's own cost and
expense and Licensor shall
24
have the fight to be represented by advisory counsel of its own selection
and at its own expense. At the request of the Licensee, Licensor shall
assist the Licensee in the defense of such suit at the Licensee's cost and
expense.
8.4 The Licensee shall, upon obtaining knowledge of any infringement or
threatening infringement of Licensor's rights to the Licensed Technology,
Confidential Information or trademarks owned by Licensor, immediately
notify Licensor thereof together with al relevant details. Licensor may,
at its own discretion and cost, prosecute or otherwise stop or prevent
such actual or threatening infringement in the name of both Licensor and
the Licensee or either of them, and in each case the Licensee shall render
all assistance required by Licensor. All amounts received by Licensor in
connection with any action taken against such infringement pursuant to
this Article shall be the property of Licensor, if Licensor prosecutes
such claim, or the property of the party under whose name the prosecution
is made.
8.5 If Licensor decides not to take any action in respect of any infringement
or threatened infringement, it shall notify the Licensee of this decision
within ninety (90) days after receipt of a written notice from the
Licensee pursuant to Article 8.4 hereof. Upon receipt of Licensor's
written notice of its decision not to take any action, the Licensee may,
at its own discretion and cost, prosecute or otherwise stop or prevent
such actual or threatened infringement in the name of both Licensor and
the Licensee or either of them. All amounts received by the Licensee in
connection with any action taken against such infringement pursuant to
this Article shall be the Party's under whose name the prosecution is
made, at the reasonable discretion of Licensor.
8.6 The Licensee shall indemnify and hold harmless Licensor from any liability
for defects in the Products manufactured by or on behalf of the Licensee
if such defects are, caused by the Licensee's action, inaction, conduct or
negligence. Licensor shall notify the Licensee of any such claims by a
third party and the Licensee sqall undertake all responsibilities for such
action.
8.7 The Licensee and Licensor shall render such assistance reasonably required
by the other in defense of the claims specified in this Article 8. The
terms of this Article 8 shall survive the expiration or termination of
this Contract .
25
ARTICLE 9 - EFFECTIVENESS AND TERMINATION
9.1 Pursuant to Article 4 of the Regulations of the People's Republic of China
for the Administration of Technology Import Contracts. promulgated on May
24, 1985, the Licensee shall, within thirty (30) days after the execution
of this Contract, submit an application to the Approval Authority for the
examination and approval of this Contract. This Contract is one of the
ancillary contracts to the JV Contract, and as such the Effective Date
shall be the first date upon which both of the Parties to the Joint
Venture have made their capital contributions in full to the Licensee and
have received their Investment Certificates.
9.2 The Contract Term shall be for the same period as the JV-Contract, thirty
eight (38) years commencing on the Effective Date. In the event that one
Party desires to renew this Contract, it shall give written notice of such
intention to the other Party not later than six (6) months prior to the
expiry of this Contract. In such case, the Parties shall discuss the
renewal of this Contract in a constructive manner. Such extension shall be
effective following approval by the Approval Authority.
9.3 Either Party shall have the fight to terminate this Contract under any of
the following circumstances:
(a) if the other Party commits a material breach of this Contract and
such breach is not cured within sixty (60) days after written notice
from the other Party to the Party in breach;
(b) the conditions of force majeure prevail for a period in excess of six
(6) months and the Parties have been unable to find an equitable
solution pursuant to Article 12;
(c) 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 become due; or
(d) if the JV-Contract has been terminated.
9.4 Licensor shall have the right to terminate this Contract if Licensor's
share in the registered capital of the Licensee shall at any time fall
below eighty percent (80%).
9.5 Termination as set forth above may be effected by the terminating Party
giving the other Party 30 days' prior written notice specifying the reason
26
for such termination and shall become effective upon the expiration of
such 30 days period.
9.6 Upon termination of this Contract:
(a) All moneys accrued, due and payable by one Party to the other Party
hereunder shall be fully paid within one (1) month, and all Technical
Documentation shall be returned immediately to Licensor. On no
account shall such moneys or Technical Documentation be withheld on
the ground of a dispute arising out of or in relation to this
Contract or as a set-off against any claim for damages sought to be
put forward by the Party liable to pay or to return the Technical
Documentation.
(b) The Licensee's right to use the Licensed Technology shall immediately
cease and the Licensee shall discontinue all use thereof
The terms of this Article 9.6 shall survive the termination of this
Contract.
9.7 Except in the case of early termination under Article 9.3 and 9.4 above
and except with respect to Technical Information and Technical
Documentation relating to any Improvements made or obtained by the
Licensor that are the subject of a Supplemental Contract, after the
expiration of the W-Contract, the Licensee shall continue to have the
fight to use all Technical Information and Technical Documentation (but
not including any valid patents) within the scope of the transfer as of
the date of expiry and Licensor shall not use any reason to interfere with
this fight. However, the Licensee shall not have the fight to transfer or
sublicense the Licensed Technology to any third party without Licensor's
consent.
ARTICLE 10 - TAXES
10.1 All taxes arising in connection with the performance of this Contract that
are imposed on the Licensee in accordance with the tax laws of the
People's Republic of China shall be borne by the Licensee.
10.2 All taxes imposed on Licensor in accordance with the tax laws of the
People's Republic of China shall be borne by Licensor. In the event that
any tax is imposed by withholding, the Licensee shall provide Licensor
forthwith with the original tax receipt issued by the relevant tax bureau.
27
10.3 All taxes imposed outside the People's Republic of China in connection
with payments made to Licensor under this Contract shall be borne by
Licensor.
ARTICLE 11 - DISPUTE SETTLEMENT
11.1 Any disputes arising from the execution of or in connection with this
Contract shall be settled through friendly consultations between the
Parties. In case no settlement can be reached through consultations within
sixty (60) days after a Party has given notice to the other Party of the
matter in dispute, the disputes shall be submitted to the China
International Economic and Trade Arbitration Commission in accordance with
it's existing rules of arbitration. The arbitration award is final and
binding upon both Parties.
11.2 During the arbitration, this Contract shall be performed continually by
the Parties except for matters in dispute, and the arbitration proceedings
shall not prevent any Party from exercising its right of termination under
this Contract.
ARTICLE 12 - FORCE MAJEURE
12.1 Should the performance of this Contract be affected directly or indirectly
or this Contract could not be executed in accordance with the provisions
prescribed herein due to force majeure, such as earthquake, typhoon,
flood, fires, war and other unforeseen events, and their happening and
consequences are unpreventable or unavoidable, the Party which has been
prevented from performing its obligations shall notify the other Party by
facsimile without any delay, and within 15 days thereafter providing
detailed information of the events and a valid document of evidence issued
by the local public notary organisation stating the reasons for failing to
carry out or partly carry out or postponing performance of its obligations
under this Contract.
Thereafter, the Party whose contractual obligations are affected by the
aforesaid event of force majeure shall be suspended for the period of the
force majeure and the period for performing such obligations shall be
extended, without penalty, for a period equal to such suspension.
28
12.2 Should such event of force majeure hinder the performance of this Contract
or the operation of the Licensee for a period of more than six (6) months,
the Parties shall decide by mutual agreement whether to terminate this
Contract prematurely.
In case of early termination, neither Party shall be held liable for the
consequences of early termination caused by such event of force majeure.
12.3 Notwithstanding the foregoing, the Parties shall use all reasonable
endeavours to minimise the impact of such event of force majeure and find
an equitable solution for the same, and the Party hindered by such event
of force majeure shall resume performance~ of its obligations under this
Contract as soon as possible after the cessation of the event of force
majeure.
ARTICLE 13 - GOVERNING LAW
13.1 The validity, interpretation and implementation of this Contract shall be
governed by the laws of the Peoples Republic of China.
ARTICLE 14 - MISCELLANEOUS
14.1 Neither Party may assign any of its rights and obligations under this
Contract without the prior written consent of the other Party. except that
Licensor may delegate it's rights to any of its Affiliates, provided that
Licensor shall take full responsibility for any damage to the Licensee
arising out of the mistakes of its delegated party.
14.2 This Contract is severable in that if any provision hereof is determined
to be illegal or unenforceable, the offending provision shall be stricken
without affecting the remaining provisions of this Contract.
14.3 This Contract is executed in English and Chinese. While both are valid
versions of the Contract, in the event of a conflict the English versions
shall prevail.
14.4 This Contract, together with any documents referred to herein, constitutes
the entire agreement between the Parties with respect to the subject
matter hereof, supersedes any prior expression of intent or understanding
relating hereto and may only be modified or amended by a written
instrument signed by the authorised representatives of the Parties. Major
amendments shall enter into effect when approved by the Approval
Authority.
29
14.5 Failure or delay on the part of either Party hereto to exercise any right,
power or privilege under this Contract shall not operate as a waiver
thereof; nor shall any single or partial non-exercise of any right, power
or privilege preclude any other future exercise thereof
14.6 Should any notices in connection with any Party's Tights and obligations
be sent by either telegram of telex, then all such notices shall be
followed by written letter. The legal addresses of both Parties to this
Contract shall be the posting addresses.
This Contract is signed by their duly authorised representatives of both
Parties as of the date first above written,
By: By:
---------------------------------- --------------------------------
Name: [ ] Name: Xx. Xxxxx X. Xxxxxx
Title: General Manager Title: President
Zhanjiang A & C Biological Ltd. Xxxxxxx Xxxxxx Laboratories Inc.
30
Share Purchase Agreement
This Agreement made and entered into this 28th day of February, 2000 by and
between Xxxxxxx River Laboratories, Inc. and Xxxxxxx River Laboratories Holding
S.A.S., its French wholly-owned subsidiary (collectively, "CRL") and Ajinomoto
Co., Inc. ("AJI")
WITNESSETH:
Whereas, both CRL and AJI are 50% shareholders of Xxxxxxx River Japan,
Inc. ("CRJ"); and
Whereas, CRL desires to purchase and AJI desires to sell a certain number
of CRJ shares currently owned by AJI.
Now, Therefore, in consideration of the premises, mutual covenants and
agreements hereinafter contained, both parties hereby agree as follows:
Article 1. Representations and Warranties of AJI
AJI represents and warrants to CRL as of the date of this Agreement that:
(1) AJI is the registered and beneficial owner of 1,064,000 shares of
common stock with par value of (Y)500 per share, of CRJ which
represents 50% of the aggregate number of outstanding shares of CRJ.
(2) All CRJ shares owned by AJI are duly and validly issued and
fully-paid.
(3) There is no security interest or any other encumbrance subsisting on
any of CRJ shares owned by AJI.
(4) AJI possesses duly and validly issued share certificates of 340,480
CRJ shares (16% of the aggregate number of outstanding shares) owned
thereby.
Article 2. Transfer of Shares
Pursuant to the provisions of Article 5 of a Joint Venture Agreement regarding
CRJ between the parties hereto dated June 24, 1981, as amended on June 15,
1987, January 17, 1994, August 30, 1996 and December 31, 1997, AJI shall sell
to CRL, and CRL shall purchase three hundred and forty thousand and four
hundred and eighty (340,480) CRJ shares (the "Purchased Shares") as of February
28, 2000. The total purchase price ("Purchase Price") shall be one billion and
four hundred million Yen ((Y)1,400,000,000).
Article 3. Payment
CRL shall pay AJI one billion Yen ((Y)1,000,000,000) as a part of Purchase
Price on or before February 28, 2000 (Tokyo Time) ("Date of Sale") by wire
transfer to a bank account designated by AJI in advance. Upon receipt of such
payment, AJI shall submit share certificates representing the Purchased Shares
to CRJ, on behalf of CRL, and cause CRJ to make the registration of transfer of
the Purchased Shares on the shareholders' register of CRJ and to deliver to
AJI, on behalf of CRL, the share certificates in the name
of CRL which represents the Purchased Shares. CRL shall pay, in a lump sum, on
or before February 28, 2003 (Tokyo Time) four hundred million Yen
((Y)400,000,000), the remainder of Purchase Price, plus the interest accrued
during the period of Date of Sale through February 28, 2003 according to the
long-term prime rate of each year (the long-term prime rate of the first
business day of each year of The Industrial Bank of Japan). On Date of Sale,
CRL shall issue to AJI a note due February 28, 2003 for the four hundred
million Yen plus such interest accrued.
Article 4. Pledge
CRL shall deposit with AJI the share certificate representing the Purchase
Shares delivered according to Article 2 hereof, as the pledge regarding CRL's
obligation to pay four hundred million Yen ((Y)400,000,000) set forth in
Article 3 hereof. AJI shall be entitled to keep all such CRJ pledged shares
until CRL pays up the remainder of Purchase Price. In case that CRL fails to
pay such remainder of Purchase Price and the accrued interest not later than
February 28, 2003, AJI shall be entitled to have all such CRJ shares pledged
appropriated to such payment by sending CRL the written notice thereof.
Article 5. Dividend
Both parties shall separately agree upon the treatment of the dividend for the
period of April 1, 1999 through March 31, 2000 regarding the Purchased Shares.
Article 6. Governing Law
This Agreement shall be governed by and construed in accordance with the laws
of Japan.
Article 7. Effectiveness
This Agreement shall be effective as of the date first above written, subject
to a resolution therefor of the boards of directors of both parties and
consummation of necessary procedure to the Japanese government concerning
inward direct investment for the purchase of CRJ shares by CRL.
In Witness Whereof, the parties hereto have caused this Agreement to be
executed by their duly authorized representatives on the date first above
written.
Xxxxxxx River Laboratories, Inc.
/s/ Xxxxx Xxxxxx
---------------------------------
By:
Ajinomoto Co., Inc.
/s/ Xxxxx Xxxxxxxx
---------------------------------
By: Xxxxx Xxxxxxxx
President
-2-
Amendment Agreement
This Amendment made and entered into this 28th day of February, 2000, by and
between Xxxxxxx River Laboratories, Inc., a corporation organized and existing
under the laws of Delaware, having its principal place of business as 000
Xxxxxxxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxxxxxxx 00000, the United States of
America and Xxxxxxx River Laboratories Holding S.A.S., its wholly-owned
subsidiary, a corporation organized and existing under the laws of France,
having its principal place of business at Les Oncins, 69210 Saint Germain
L'Arbresle, Cedex, France (collectively, hereinafter referred to as "CRL") and
Ajinomoto Co., Inc., a corporation organized and existing under the laws of
Japan, having its principal place of business at 00-0, Xxxxxxxx Xxxxxxx,
Xxxx-xx, Xxxxx 000-0000, Xxxxx (hereinafter referred to as "AJI").
WITNESSETH:
Whereas, the parties hereto have entered into a Joint Venture Agreement
dated June 24, 1981, as amended, June 15, 1987, January 17, 1994, August 30,
1996 and December 31, 1997 (as so amended, hereinafter referred to as "Original
Agreement") for the business regarding laboratory animals, feed for laboratory
animals, safety testing of medical drug, reagent and other services, and they
have caused Xxxxxxx River Japan, Inc. (hereinafter referred to as "CRJ") to
engage in such business; and
Whereas, CRL desires to purchase and AJI desires to sell a certain number
of CRJ shares currently owned by AJI.
Now, Therefore, in consideration of the premises, mutual covenants and
agreements hereinafter contained, both parties hereby agrees to the transfer of
the shares and to amendments to Original Agreement in consequence thereof, as
follows:
Section 1. Transfer of Shares
AJI and CRL agree that AJI shall sell to CRL, and that CRL shall purchase from
AJI three hundred and forty thousand and four hundred and eighty (340,480) CRJ
shares of February 28, 2000 according to the conditions provided for in Share
Purchase Agreement dated February 28, 2000 between the parties hereto. After
transfer of the shares referenced above, ownership of the two million one
hundred twenty eight thousand (2,128,000) outstanding shres in CRJ shall be as
follows:
CRJ 1,404,480 shares
AJI: 723,520 shares
Section 2. Amendments to Original Agreement
2.1 In consequence of the transfer of the shares under the provision of
Section 1 hereof, both parties hereby agree to delete Article 6.2 of
Original Agreement and replace the provisions of Articles 2.1, 2.3, 2.4,
2.5, and 3.1 thereof, in their entirety with the text below.
ARTICLE II
DIRECTORS AND MANAGEMENT
(1) CRJ has a Board of Directors consisting of not more than six (6)
directors. In consideration of the proportion of numbers of CRJ
shares each party owns, the parties hereto agree that the numbers
of directors designated by each party shall be as follows: four
(4) directors shall be designated by CRL and two (2) directors
shall be designated by AJI.
(2) (unchanged)
(3) The parties hereto agree that they will cause their
representatives on the Board of Directors of CRJ to appoint a
President who shall be designated by CRL; provided, however, CRL
shall obtain AJI's acceptance if a director designated by AJI is
designated as President. The President shall be a Registered
Representative Director.
(4) The parties hereto agree that, at the request of AJI, they will
cause their representatives on the Board of Directors of CRJ to
appoint a Senior Managing Director who shall be designated by AJI
and accepted by CRL. In addition to the President, the Senior
Managing Director shall be a Registered Representative Director.
(5) The parties hereto agree that they will vote their shares of CRJ
in such manner that at all times during the effective period of
this Agreement there shall be three corporate auditors (Kansayaku)
of CrJ; two to be persons designated by CRL including one standing
corporate auditor, one to be a person designated by AJI.
ARTICLE III
ACTIONS BY THE BOARD OF DIRECTORS
(1) The Board of Directors of CRJ has responsibility for and control
over the operation of CRJ as well as the establishment of the
general plans in accordance with the Articles of Incorporation
of CRJ. One more than half of the total number of directors with
at least one director designated by AJI shall constitute a
quorum for the transaction of business and the affirmative vote
of one more than half of the total number of directors shall be
the act of the Board of Directors at a meeting at which a quorum
is present."
2.2. Any other provisions of Original Agreement than provisions deleted or
replaced according to Section 2.1 hereof shall remain unchanged.
2.3 The above replacements of Articles 2.1, 2.3, 2.4, 2.5 and 3.1 of
Original Agreement shall become into effect after the necessary
amendment of the provision of Articles of Incorporation of CRJ is
adopted by the resolution of the Shareholders' Meeting of CRJ. The
Shareholders' Meeting therefor shall be held not later than the end of
2
June 2000. Until such time- when necessary resolution shall have been
made, present provisions of Original Agreement shall apply.
Section 3. Duration
This Amendment shall be effective as of the date first above written, subject
to a resolution therefore of the boards of directors of both parties and
consummation of necessary procedure to the Japanese government concerning
direct inward investment.
In Witness Whereof, the parties hereto have caused this Amendment to be
executed by their duly authorized representatives on the date first above
written.
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Xxxxxxx River Laboratories, Inc.
/s/ Xxxxx Xxxxxx
--------------------------------
By:
Ajinomoto Co., Inc.
/s/ Xxxxx Xxxxxxxx
--------------------------------
By: Xxxxx Xxxxxxxx
President
Xxxxxxx River Japan, Inc. acknowledges and adheres to this Amendment and agrees
to be bound by the obligations created thereby.
Xxxxxxx River Japan, Inc.
/s/ Xxxxxxxxx Xxxxxxxxx
--------------------------------
By: Xxxxxxxxx Xxxxxxxxx
President
4
Memorandum
This made and entered into this 28th day of February, 2000 by and between
Xxxxxxx River Laboratories, Inc. and Xxxxxxx River Laboratories Holding S.A.S.,
its French wholly-owned subsidiary (collectively, "CRL") and Ajinomoto Co.,
Inc. ("AJI")
WITNESSETH:
Whereas, the parties hereto agreed that CRL would purchase from AJI three
hundred forty thousand four hundred eighty (340,480) shares of Xxxxxxx River
Japan, Inc. ("CRJ") according to the conditions agreed upon by both parties and
they made an Amendment Agreement dated February 28, 2000 ("Amendment
Agreement") to a Joint Venture Agreement dated June 24, 1981, as amended on
June 15, 1987, January 17, 1994, August 30, 1996 and December 31, 1997 ("JVA").
Now Therefore, in consideration of the premises, mutual covenants and
agreements hereinafter contained, both parties hereby agree, regarding the
constitution of the Board of Directors of CRJ after the abovementioned transfer
of CRJ shares and possible transfer thereof, as follows:
1. The parties hereto agree that CRJ shall secure the employment of CRJ's
current employees who are dispatched by AJI so long as they are employees
of AJI; provided, however, the parties hereto shall discuss this issue in
case AJI assigns all CRJ shares it owns to CRL or a third party. The
parties hereto confirm that Xxxxxxxxx Xxxxxxxxx shall be appointed one of
four directors of CRJ designated by CRL and the President of CRJ, at CRJ's
earliest Shareholders' Meeting and Meeting of the Board of Directors
thereafter.
2. The dividends ("Dividend") for the period of April 1, 1999 through March
31, 2000 regarding 340,480 CRJ shares which shall be transferred by AJI to
CRL shall be shared between CRL and AJI as follows according to proportion
of the term when each owned or owns such shares.
AJI's amount: Dividend x 11/12 (term: April, 1999 to February, 2000)
CRL's amount: Dividend x 1/12 (term: March, 2000)
Each such amount shall be paid directly to AJI and CRL by CRJ.
3. The parties hereto confirm that the amount of the annual dividend payable
by CRJ to its shareholders for fiscal years of 1999, 2000, 2001 and 2002,
which shall be payable in June, 2000, 2001, 2002 and 2003, shall be less
than CRJ's net income plus depreciation regarding each fiscal year.
4. The parties hereto confirm that the provision of Article 6.1 of JVA
regarding financial responsibility shall apply only to CRJ's borrowings
which AJI shall consider to be necessary for CRJ's laboratory animal
operations and reasonable amount. AJI shall not be required to guarantee
any debt of CRJ except the case set forth above.
5. The parties hereto shall, in September or October, 2001, discuss and
negotiate in good faith on the purchase, which is expected by March, 2003,
but is not yet a binding commitment of either party, by CRL of all CRJ
shares AJI owns after the abovementioned transfer of CRJ shares.
6. Xxxxxxx River Laboratories, Inc. ("CRUS") shall obtain AJI's prior written
consent if and when CRUS desires to transfer to another entity, a whole or
part of the shares of Xxxxxxx River Laboratories Holdings S.A.S. ("CRH"),
except when CRH does not own any shares of CRJ. Such consent shall not be
unreasonably withheld.
7. AJI represents and warrants to CRL that to its knowledge since January 1,
2000 CRJ has not incurred any incremental borrowings, made any commitments
or incurred or assumed any liabilities other than in the ordinary course
of business and consistent with historical practices. AJI further agrees
that from the date hereof until the Date of Sale (as that term is defined
in the Share Purchase Agreement), the business of CRJ will continue to be
operated in the ordinary course and consistent with historical practices,
and no such borrowings, commitments or assumed liabilities will occur
without the prior consent of CRL.
8. This Memorandum shall be governed by and construed in accordance with the
laws of Japan.
9. This Memorandum shall come in effect subject to the consummation of the
abovementioned assignment of 340,480 CRJ shares and the effectuation of
the Amendment Agreement, and shall be legally binding upon the parties.
In Witness Whereof, the parties hereto have caused this Memorandum to be
executed by their duly authorized representatives on the date first above
written.
Xxxxxxx River Laboratories, Inc. Ajinomoto Co., Inc.
/s/ Xxxxx Xxxxxx /s/ Xxxxx Xxxxxxxx
-------------------------------- --------------------------------
By: By: Xxxxx Xxxxxxxx
President
-2-
Xxxxxxx River Japan, Inc. acknowledges and adheres to this Memorandum and
agrees to be bound by the obligations created thereby.
Xxxxxxx River Japan, Inc.
/s/ Xxxxxxxxx Xxxxxxxxx
--------------------------------
By: Xxxxxxxxx Xxxxxxxxx
President
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