COOPERATION AGREEMENT
This
COOPERATION AGREEMENT (the “Agreement”) is made and entered into as of January
22, 2006, by and among Harbin OT Pharmaceutical Co., Limited (“HOPC”), a company
incorporated under the laws of Samoa, Asia Biotechnology Group Inc. (“ABG”), a
company incorporated under the laws of British Virgin Islands, and Harbin OT
Pharmaceutical Co., Ltd. (“OT”), a company incorporated under the laws of
People’s Republic of China (“PRC”).
Each
of the parties above may hereinafter be referred to as a “Party” or collectively
referred to as the “Parties”.
WHEREAS
HOPC
entered into a Know-how License Agreement (the “License Agreement”) on January
22, 2006 with Mr. Xxx Xxx (“Zhu”), a Chinese citizen and the owner of the
Know-how. In accordance with the Know-How License Agreement, HOPC acquired
a
non-exclusive license to use the Know-how (the “Non-exclusive License
Right”);
In
accordance with Article 4 of the Know-how License Agreement, HOPC may sublicense
its Non-exclusive License Right to a Chinese entity under the Know-how License
Agreement with
the
written consent of Zhu;
OT
is the manufacturer of gynecological diseases treatment in China;
ABG
is the controlling shareholder of OT and owns 60% equity interest of
OT;
ABG
and OT wish to manufacture products with the benefit of the Know-how.
NOW,
THEREFORE,
in consideration of the foregoing, the Parties agree as follows:
Article
1. Definitions
| 1.1 |
Know-how:
the reports, processes, recipes, formulae, designs, drawings and
technical
information with regard to the gynecological diseases treatment set
out in
Attachment1 to this Agreement.
|
| 1.2 |
Know-how
Products:
any pharmaceutical products which is manufactured with the benefit
of the
Know How.
|
| 1.3 |
Licensed
Area:
People’s Republic of China.
|
Article
2. Scope of Cooperation
The
cooperation contemplated herein includes the following contents:
1
| (a) |
A
non-exclusive and non-transferable license granted by HOPC to OT
to use
the Know-how hereof;
|
| (b) |
Certain
services and facilities to be provided by OT in connection with the
manufacturing of Know-how Products.
|
Article
3. Obligations of HOPC
| 3.1 |
Grant
of License. Upon the terms and conditions hereinafter set forth,
HOPC
hereby grants to OT and OT hereby accepts a non-exclusive and
non-transferable sublicense to use the Know-how in the Licensed
Area.
|
| 3.2 |
Scope.
The Know-how hereby granted extends only to use in the Licensed Area.
OT
and ABG guarantee that the Know-how will not be used in any places
other
than in the Licensed Area or in any form other than permitted by
HOPC.
HOPC undertakes that it will not make, or authorize any use, direct
or
indirect, of the Know-how by any other means, except as set forth
in this
Agreement.
|
| 3.3 |
Territory.
The Know-How License hereby granted extends only to the Licensed
Area. ABG
and OT agree that it will not make, or authorize any use, direct
or
indirect of the Know-how in any other
area.
|
| 3.4 |
No
Assignment or Sublicense by the Licensee. The Know-how License and
all the
rights and duties under this Clause 3.1 are assigned to OT only.
OT agrees
that it will not assign, sublicense, lease, pledge, encumber or in
any
other way transfer the rights or benefits of the Know-how License
granted
hereby or any portion of the rights included therein to any third
party
without the prior written consent of
HOPC.
|
Article
4. Obligations of ABG and OT
| 4.1 |
Scope.
Upon the terms and conditions hereinafter set forth, HOPC hereby
appoints
OT, and OT hereby accepts, to act as the manufacturer of the Know-how
Products in Licensed Area including but not limited
to:
|
| (a) |
OT
shall provide a production line and all necessary raw materials in
connection with the manufacture of the Know-how
Products.
|
| (b) |
OT
shall form a working group ("Working Group") to prepare studies related
to
the development of the Know-how Products; The working Group shall
consist
of certain technology and management
personnel.
|
2
| (c) |
OT
shall maintain the manufacturing of the Know-how Products, including
the
maintenance, development and upgrading of the production line and
other
related facilities.
|
| (d) |
Other
operational technical services agreed upon by the
Parties.
|
| 4.2 |
Exclusivity.
OT shall not appoint any other third parties to provide manufacturing
services to HOPC in connection with the manufacturing of the Know-how
Product without the prior written consent of HOPC.
|
| 4.3 |
Specific
Agreements. Both Parties agree to enter into any separate manufacturing
agreements, if necessary, during the term of this
Agreement.
|
Article
5. Distribution of Profits and Liabilities
| 5.1 |
The
parties have agreed that each of HOPC and OT shall be distributed
50% of
the profits generated from the Know-how Products respectively.
|
| 5.2 |
All
payments to be made by the manufacturing of Know-how Product shall
be
collected by OT directly.
|
Article
6. Representations and Warranties
| 6.1 |
HOPC
hereby represents and warrants to ABG and OT
that:
|
| (a) |
HOPC
is a company duly established and validly existing under the laws
of
Samoa;
|
| (b) |
HOPC
has full right, power, authority and capacity and all third party
and
governmental consents and approvals necessary to execute, deliver
and
perform this Agreement;
|
| (c) |
This
Agreement upon execution shall immediately constitute a lawful, valid
and
binding agreement with the force of enforcement according to the
terms of
this Agreement.
|
| (d) |
Execution
and performance of this Agreement by HOPC will not violate any other
agreements to which it is a party or subject.
|
| 6.2 |
ABG
and OT hereby represent and warrant to HOPC
that:
|
| (a) |
ABG
is a company duly incorporated under the laws of British Virgin Islands
and OT is a company duly established and validly existing under the
laws
of China;
|
| (b) |
Each
of ABG and OT has full right, power, authority and capacity and all
third
party and governmental consents and approvals necessary to execute,
deliver and perform this Agreement;
|
3
| (c) |
This
Agreement upon execution shall immediately constitute a lawful, valid
and
binding agreement with the force of enforcement according to the
terms of
this Agreement.
|
| (d) |
Execution
and performance of this Agreement by each of ABG and OT will not
violate
any other agreements to which it is a party or
subject.
|
Article
7. Undertakings of ABG and OT
| 7.1 |
ABG
will use its best efforts to cause OT to comply with all obligations
of
this Agreement.
|
| 7.2 |
During
the term of this Agreement, OT shall lawfully maintain its License
and
shall not violate Chinese laws or regulations in any way to impair
its
operation.
|
Article
8. Intellectual Property and Confidentiality
| 8.1 |
HOPC
shall have title and interests to any and all the intellectual property
rights arising from the performance of this Agreement, whether developed
by OT, including without limitation, trademarks, copyrights, patent
rights, know-how, commercial secrets and other
rights.
|
| 8.2 |
OT
agrees that it will not during the term of this Agreement, or thereafter,
attack any rights of HOPC in and to the Know-how or challenge the
validity
of the licenses contemplated herein or otherwise take or fail to
take any
action that, in the opinion of HOPC, impairs such title, rights or
licenses.
|
| 8.3 |
OT
agrees that the Know-how shall be used only in accordance with this
Agreement and it shall not use the same in any way which, in the
opinion
of HOPC, is deceptive, misleading or in any way damages such Know-how
or
the reputation of HOPC.
|
| 8.4 |
OT
shall bear reasonable and appropriate responsibilities to keep as
confidential any and all information of HOPC either marked “confidential”
or which OT ought reasonably to believe is confidential (“Confidential
Information”). The Confidential Information shall include, without
limitation, information relating to the business, financial position,
plans, intellectual property rights or proposals of HOPC. Without
the
prior written consent by HOPC, OT shall not disclose, deliver, assign
or
transfer any Confidential Information to any third parties. Upon
the
termination or expiration of this Agreement, OT shall return or destroy
any and all the documents, materials or software with Confidential
Information to HOPC upon HOPC’s request and delete all of such
Confidential Information from any electronic devices of OT, and cease
to
use them.
|
| 8.5 |
The
Parties agree that this Article 8 will continue to be in effect whether
this Agreement has been amended, rescinded or
terminated.
|
4
Article
9. Term
| 9.1 |
This
Agreement shall become effective as of the Effective Date and the
term of
this Agreement shall be 5 years unless earlier terminated as set
forth
below.
|
| 9.2 |
This
Agreement shall be automatically renewed for another 5 years whenever
this
Agreement expires (including the expiry of any extension of this
Agreement), provided, however, that this Agreement shall terminate
according to Article 10 of this
Agreement.
|
Article
10. Termination
| 10.1 |
Without
prejudice to any legal or other rights or remedies of the Party who
advances the termination of this Agreement, any Party has the right
to
terminate this Agreement immediately with written notice to the other
Party in the event that the other Party materially breaches this
Agreement
and fails to cure its breach within 30 days from the date it receives
written notice of its breach from the non-breaching
Party.
|
| 10.2 |
During
the term of this Agreement, HOPC shall have the right to terminate
part or
total of this Agreement, in its sole discretion, on three months’ prior
notice to OT.
|
| 10.3 |
Upon
and after the expiration or termination of the Know-how License,
all
rights granted to OT hereunder, shall forthwith revert to HOPC and
OT
shall refrain from any further use of the Know-how, either direct
or
indirect, in the name of OT.
|
Article
11. Dispute Resolution
Any
disputes between the Parties arising out of or in connection with this Agreement
shall be settled through friendly consultation. If the dispute can not be
resolved within 30 days after the written notice requiring for consultation
from
one Party to the other, then either Party may submit the relevant dispute to
the
China International Economic and Trade Arbitration Commission (CIETAC) for
arbitration according to its then valid arbitration rules. The arbitration
shall
be conducted in Beijing in the English language. Each party shall have the
opportunity to appoint an arbitrator and the parties shall jointly appoint
a
Chairman. If the parties cannot agree on the appointment of a chairman the
matter will be referred to CIETAC for resolution. The arbitration award shall
be
final and binding upon the Parties.
Article
12. Applicable Laws
The
execution, validity, interpretation and performance of this Agreement shall
be
governed by the laws of China.
Article
13. Severability
If
any provision of this Agreement is held to be invalid or unenforceable according
to relevant laws, all other provisions shall nevertheless continue in full
force
and effect. In such case, the Parties agree to replace the invalid or
unenforceable provision by a legally admissible provision which, in its economic
effect, shall be a reasonable substitute for such invalid or unenforceable
provision in the light of the Parties’ intent.
5
Article
14. Amendment and Supplement
The
Parties may amend or supplement this Agreement by way of reaching a written
agreement. Agreements concerning the amendment or supplement of this Agreement
shall constitute a part of this Agreement and with the same force of this
Agreement.
Article
15. Counterparts
This
Agreement may be executed in two or more counterparts, each of which shall
be
deemed an original for all purposes and all of which together shall constitute
one and the same instrument.
Article
16. Headings
Headings
are for the convenience of reference only and shall not control the construction
or interpretation of any of the provisions of this Agreement.
6
IN
WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed
by
their duly authorized representatives on the date first set forth
above.
|
Harbin
OT
Pharmaceutical Co., Limited (Samoa)
|
|||
| Signature: /s/ Zhu Lei | |||
|
Name: Zhu Lei |
|||
| Title: Director |
|
|
|||
| Signature: /s/Xxxx Xxxxxxxx | |||
|
Name: Xxxx Xxxxxxxx, |
|||
|
On
behalf of Far Grand Investments Limited
Title:
Director
|
| Harbin
OT
Pharmaceutical Co., Ltd. (China) |
|||
| Signature /s/ Qiu Xueliang | |||
|
Name: Qiu Xueliang |
|||
|
Title:
President
|
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