EXHIBIT 4.5
TRANSLATED FOR REFERENCE ONLY.
EXCLUSIVE CONSULTANCY SERVICE AGREEMENT
This "Exclusive Consultancy Service Agreement" (hereinafter referred to as "this
Agreement") is entered into by and between the following parties on June 8, 2007
in Beijing:
Party A: Aero-Biotech Science & Technology Co., Ltd.
Domicile: Xxxx X000, 0xx /Floor, Golden Resources Shopping Mall, Xx. 0 Xxxxxx
Xxxx, Xxxxxxx Xxxxxxxx, Xxxxxxx
Party B: Primalights III Agriculture Development Co., Ltd.
Domicile: Middle Area of Highway 73, Zhuangershang Upper Village, Huangling
Rural, Xiaodian District, Taiyuan City
WHEREAS:
(1) Party A is a wholly foreign owned enterprise established and registered in
Beijing in accordance with laws of the People's Republic of China (hereinafter
referred to as "China", in this Agreement, excluding Hong Kong Special
Administrative Region, Macao Special Administrative Regions and Taiwan).
(2) Party B is a limited liability company established and registered in Taiyuan
City, Shanxi Province of China under Chinese laws. Its scope of business
includes automation control greenhouse construction, yield farmland development;
demonstration plots set up, corn seed production; crop seeds wholesale and
retail, seedling seed production, wholesale and retail, livestock, processing
and marketing of agricultural and sideline products.
(3) Party A agrees to provide under this Agreement consulting services to Party
B and Party B agrees to accept such consulting services from Party A.
NOW, THEREFORE, the parties to the Agreement, by consensus, reached this
Agreement as follows:
1. EXCLUSIVE CONSULTANCY AND SERVICES; MONOPOLIZED AND EXCLUSIVE INTERESTS
1.1 During the term of this Agreement, Party A agrees, in accordance with the
terms and conditions of this Agreement, to provide to Party B the exclusive
consultancy services in the aspect of management, marketing promotion and sales,
including, but not limited to:
(1) assist Party B to formulate the management model and operational plan of the
company;
(2) assist Party B to formulate the marketing development plan;
(3) provide marketing and client resources information to Party B;
(4) conduct specific marketing research and survey;
(5) assist Party B to establish a sales and marketing network.
1.2 Party B agreed to accept the consulting services rendered by Party A. Party
B further agrees that unless with a prior written consent of Party A, during the
term of this Agreement, Party B shall not accept professional consulting and
services provided by any third party.
2. CALCULATION, PAYMENT AND SECURITY OF CONSULTING SERVICE
2.1 Both parties agree to calculate and pay the consulting service fee under
this Agreement according to Annex 1.
2.2 Both parties shall be responsible to pay their respective taxes for
executing and performing this Agreement as legally required.
2.3 The fee of consulting services under this Agreement is secured by the
shareholders of Party B pledging its equity held in Party B.
3. REPRESENTATION AND WARRANTY
3.1 Party A hereby represents and warrants as follows:
3.1.1 Party A is a wholly foreign-owned enterprises legitimately registered,
established and validly existing in accordance with Chinese laws ;
3.1.2 Party A executes and performs this Agreement within the power and business
scope of the company, with the necessary and appropriate corporate action and
authorization, and obtained the necessary approval and consent of the government
and third-party, and that this Agreement is not in violation of the restrictions
or limitation under the laws and contracts binding or influential to it;
3.1.3 Once this Agreement is signed, it constitutes legal, valid, binding and
enforceable obligations to Party A under the provisions of this Agreement.
3.2 Party B hereby represents and warrants as follows:
3.2.1 Party B is a limited liability company legitimately registered,
established and validly existing in accordance with Chinese laws;
3.2.2 Party B performs and executes this Agreement within the power and business
scope of the company, with the necessary and appropriate corporate action and
authorization, and obtained the necessary approval and consent of the government
and third-party, and that it is not in violation of the restriction and
limitations under the laws and contracts binding or influential to it;
3.2.3 Once this Agreement is signed, it constitutes legal, valid, binding and
enforceable obligations to Party B under the provisions of this Agreement.
4. CONFIDENTIALITY
Both parties hereto acknowledge and confirm that any oral or written information
exchanged between the parties in connection with this Agreement are confidential
information. Both parties shall keep confidential all such information, and
without the prior written consent of the other party, a party shall not disclose
any relevant information to any third party, except in the following
circumstances: (a) the public knows or will know such information (which is not
disclosed by the information receiving party without authorization); (b) the
disclosure of the information is required by the applicable laws or stock
exchange rules or regulations; or (c) disclosure to the legal or financial
advisors of either party in connection with the transaction described in this
Agreement, and such legal and financial advisors shall comply with the similar
duty of confidentiality. Any confidential information disclosed by the employees
of either party or by an organization engaged by either party shall be deemed as
the disclosure made by such party. Such party shall be responsible for the
default responsibilities in accordance with this Agreement.
5. EFFECTIVENESS AND TERM
5.1 This Agreement shall be effective on the date it is signed.
5.2 This Agreement shall remain effective within the operating term of Party B,
unless it is early terminated by the provisions of another relevant contract
entered separately by both parties or by the provisions of this Agreement.
6. TERMINATION
6.1 EARLY TERMINATION. During the effective term of this Agreement, unless Party
A commits gross negligence, fraud, other violations of law or bankruptcy, Party
B shall not early terminate this Agreement. Notwithstanding the aforesaid
covenant, Party A is entitled to terminate this Agreement by giving a written
notice thirty (30) days in advance to Party B at any time. During the term of
this Agreement, if Party B violates this Agreement and fails to remedy such
default within fourteen (14) days after receiving a written notice of default
from Party A, Party A can terminate this Agreement by giving a written notice to
Party B.
6.2 PROVISIONS AFTER TERMINATION. After the termination of this Agreement, the
rights and obligations of both parties under Articles 4, 7 and 8 herein shall
remain in effect.
7. GOVERNING LAW
The validity, performance, interpretation and enforceability of this Agreement
shall be governed by Chinese laws.
8. DISPUTE RESOLUTION
When disputes arose between the parties in connection with the interpretation
performance of the provisions under this Agreement, both parties shall resolve
the dispute through friendly consultation. If resolution cannot be reached
within thirty (30) days after the request to resolve the disputes is made by a
party, either party may submit the dispute to the China International Economic
and Trade Arbitration Commission to resolve the disputes, in accordance with its
then effective arbitration rules. The venue of arbitration shall be in Beijing;
the arbitration language shall be Chinese. The arbitral award shall be final and
binding upon both sides.
9. FORCE MAJEURE
9.1 "Force majeure" refers to any event that is beyond the reasonable control of
a party, it is unavoidable even the affected party has given reasonable
attention to it, including but not limited to, the acts of government, acts of
nature, fire, explosion, typhoon, flood, earthquake, tidal, lightning or war.
However, credit, capital or financing shortage shall not be considered as
matters beyond the party's reasonable control. The party, affected by the "force
majeure" and seeking to remove its responsibilities of this Agreement, shall
promptly notify the other party regarding such responsibilities exemption matter
and let to the other party know the steps to be taken to fulfill it.
9.2 When the performance of this Agreement is delayed or prevented due to the
aforementioned definition of the "force majeure", the affected party shall not
assume any responsibility under this Agreement to the extent it is within the
scope of the delay or prevention. The affected party shall take appropriate
measures to reduce or eliminate the impact of "force majeure" and take effort to
resume the performance of the obligation delayed
or prevented by the event of "force majeure ". Once the event of "force majeure"
is removed, both parties agree to resume the performance of this Agreement with
their greatest efforts.
10. NOTICE
Notices or other communication required to be given by either party under this
Agreement shall be written in English or Chinese, and shall be delivered by hand
delivery, registered mail, postage prepaid mail, or recognized courier service
or facsimile to the following addresses of the relevant party or parties or to
the other addresses notified by one party to the other party from time to time
or to the address of another person it designated. The actual date when a notice
is deemed delivered shall be determined as follows : for (a) hand delivery, the
date when the hand delivery is made; (b) a notice that is sent by mail, on the
tenth (10th) day after the date of posting (as indicated by the postmark) of air
registered mail (postage prepaid) or if it is sent by courier service, on the
fourth (4th) day after it is being delivered to an internationally recognized
courier service; and (c) a notice that is sent by facsimile, the received time
shown on the transmission confirmation of the relevant documents is regarded as
the actual time delivered.
Party A: Aero-Biotech Science & Technology Co., Ltd.
Address: Xxxx X000, 0xx Xxxxx, Golden Resources Shopping Mall, No. 1
Yuanda Road, Haidian District, Beijing
Recipient: Xxxx Xxxxxxx
Fax: 000-00000000
Tel: 000-00000000
Zip code: 100081
Party B: Primalights III Agriculture Development Co., Ltd.
Residence: Middle Area of Highway 73, Zhuangershang Upper Village, Huangling
Rural, Xiaodian District, Taiyuan City
Recipient: Han Zhonglin
Fax: 0000-0000000
Tel: 0000-0000000
Zip: 030031
11. ENTIRE AGREEMENT
Both parties confirm, once this Agreement becomes effective, it shall constitute
the entire agreement and understanding between the parties regarding the
contents of this Agreement. It shall supersede all prior oral and / or written
agreements and understanding in connection with the content of this Agreement
that the parties reached before the execution of this Agreement.
12. SEVERABILITY
If any provision of this Agreement is held invalid or unenforceable due to the
inconsistency with the relevant law, then such provision shall be deemed invalid
only to the extent within the scope of such related jurisdiction and it shall
not affect the legal effect of the other provisions in this Agreement.
13. AMENDMENTS AND SUPPLEMENTS
Both parties shall amend and supplement this Agreement by the form of a written
contract. Through the proper execution of the relevant amendment agreement and
supplemental
agreement by the parties herein, such amendment agreement and supplemental
agreement shall become an integral party of this Agreement and shall have the
same legal effect as this Agreement.
14. COUNTERPART
There are two original copies of this Agreement, each party holds one original
copy, and each original copy shall have the same legal effect.
IN WITNESS WHEREOF, both parties have caused their legal representatives, or
their authorized representatives to sign this Agreement on the date mentioned in
the first page.
[This page without the text.]
PARTY A : Aero-Biotech Science & Technology Co., Ltd.
Legal representative / authorized representatives : /s/ Xxxx Xxxxxxx
----------------------------
Common seals : [Seal: Aero-Biotech Science & Technology Co., Ltd.]
PARTY B : Primalights III Agriculture Development Co., Ltd.
Legal representative / authorized representatives : /s/ Zhang Mingshe
----------------------------
Common seals : [Seal: Primalights III Agriculture Development Co., Ltd.]
Annex 1: The calculation and payment method of consulting services fee
1. Formula for calculation
Party B shall pay RMB 3 million consulting service fee every year to Party A.
2. Payment method
i. Every fiscal year Party A will issue a settlement statement to Party
B, according to the content of the services provided to Party B, and
submit to Party B in writing for verification and confirmation.
ii. Party B shall pay the consulting service fee to Party A's designated
account within the due date as indicated in the settlement statement
provided by Party A. Party B should facsimile or mail the copy of
remittance voucher to Party A.
3. Adjustment mechanism
If Party A deems that the pricing mechanism stipulated in this agreement is
inapplicable for some reason that the pricing mechanism needs to be adjusted.
Party A should negotiate with Party B actively and in good faith to determine a
new standard or mechanism of charges, within [7] working days after Party A's
written request for such adjustment.
