Exhibit 4.22
English Translation for Reference
EXCLUSIVE TECHNOLOGY DEVELOPMENT, TECHNOLOGY SUPPORT AND TECHNOLOGY
SERVICES CONTRACT
BETWEEN:
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Party A:
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Agria Brother Biotech (Shenzhen) Co., Ltd. |
Address:
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Xxxx 000, 0/X, Xxxxxxxx Xxxxxxxx, Xxxxx Water River Road, Luohu District, Shenzhen |
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Party B:
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Shenzhen Guanli Agricultural Technology Co., Ltd. |
Address:
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Xxxx 0000, Xxxxx 0, Xxxxxxx Xxxxxxxx, Mintian Road, Futian Center District, Shenzhen |
WHEREAS:
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Party A is a wholly foreign-owned enterprise incorporated in Shenzhen under the laws of the
People’s Republic of China (hereinafter referred to as the “PRC”, and for the purpose of this
Contract, excluding the Hong Kong Special Administrative Region, Macao Special Administrative
Region and Taiwan); |
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Party B is a limited liability company established in Shenzhen under the laws of the PRC; |
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Party A agrees to provide exclusive technology development and related services to Party B
and Party B agrees to accept such services from Party A. |
NOW, THEREFORE, IT IS AGREED as follows after mutual consultation:
| 1. |
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Exclusive Consultancy and Services; Monopolized and Exclusive Interests |
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1.1 |
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During the term hereof, Party A agrees to act as the provider of Party B with
respect to the exclusive technology development, consulting and services on the
conditions and terms hereunder, and, to the extent permitted by the PRC laws, to
provide Party B with the technology development, technology support and any technology
services in relation thereto, including without limitation: |
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(1) |
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conducting the research and development of technologies in
biological breeding as commissioned by Party B; |
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(2) |
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provision of technology support services required by Party B; |
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(3) |
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provision of technology consulting services to Party B on a
regular or ad hoc basis, including without limitation, provision of feasibility
studies, technology forecasts, specific technology investigations, analysis
evaluation reports; |
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(4) |
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conducting technical training for Party B’s personnel; |
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(5) |
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provision of on-site technology guidance to Party B when it
needs to hire relevant technology personnel; |
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(6) |
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assisting Party B in the promotion of technologies. |
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1.2 |
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Party B agrees to accept the technology development, technology support and any
technology services in relation thereto provided by Party A, and further agrees that,
unless with the prior written consent of Party A, it will not accept any or part of the
technology development, support and services provided by any third parties in
connection with the above business during the term hereof. |
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1.3 |
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Party B shall promptly provide Party A with any plans and arrangements relating
to the technology development, technology support or technology services required by
Party B. |
| 2. |
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Calculation and Payment of, and Security for Technology Development and Service Fees
(hereinafter referred to as the “Technology Service Fees”) |
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2.1 |
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The parties agree that the Technology Service Fees hereunder shall be
calculated and paid according to the calculation and payment method of the Technology
Service Fees listed in Annex 1 hereto. |
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2.2 |
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The parties shall bear their respective taxes payable in connection with the
execution or performance of this Contract according to laws. Party B shall, at the
request from Party A, make its best effort to assist Party A in obtaining the treatment
of business tax exemption for all or part of its income derived from the Technology
Service Fees hereunder, including without limitation, the provision of the relevant
documents and the execution of written agreements with Party A from time to time in
respect of any specific services within the scope of this Contract and in a format that
meets the reporting requirements of competent departments in charge of science and
technology. However, the execution of such documents shall be subject to the following
conditions: (1) the provisions of such written agreements shall, in principle, be
consistent with this Contract and shall not contradict with the provisions of this
Contract, and (2) the execution of such documents shall not violate any laws and
regulations. |
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2.3 |
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The Technology Service Fees payable by Party B hereunder shall be secured by a
pledge created in favor of Party A by other holders of equity interest of Party B over
their respective equity interests in Party B. |
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3.1 |
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Unless otherwise required by the PRC laws and regulations, any technology
developed and information prepared by Party A in the course of the provision of its
technology development and technology services to Party B, as well as any intellectual
property rights associated with all research and development products of Party A
obtained from research and development due to the performance of this Contract and/or
other contracts jointly signed by the parties and any other rights arising out thereof
shall be exclusively owned by Party A. The above rights shall include but not limit to
the right of patent application, ownership of proprietary technology, copyright or
other intellectual property rights of technical documents and information, rights to
grant a license to others for the use of the above intellectual property rights or to
transfer such intellectual property rights. |
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3.2 |
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If, during the performance hereof, Party B needs to use any proprietary
technology of Party A, the parties hereto shall sign a separate contract to stipulate
the scope of license in relation to the propriety technology, its manner and license
fees. |
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Representations and Warranties |
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4.1 |
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Party A hereby represents and warrants as follows: |
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4.1.1 |
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Party A is a wholly foreign-owned enterprise duly incorporated
and validly existing under the laws of the PRC; |
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4.1.2 |
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Party A executes and performs this Contract within its
authority and business scope. It has taken the necessary corporate actions and
been granted appropriate authorization, and has obtained the necessary consents
and approvals from third parties and governmental departments. In addition, it
does not violate the restrictions of any laws and contracts that are binding
upon or having an effect on it; |
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4.1.3 |
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This Contract, when executed, constitutes the legal, valid and
binding obligation of Party A, and is enforceable against it pursuant to the
provisions hereof. |
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4.2 |
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Party B hereby represents and warrants as follows: |
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4.2.1 |
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Party B is a limited liability company duly incorporated and
validly existing under the laws of the PRC; |
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4.2.2 |
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Party B executes and performs this Contract within its
authority and business scope. It has taken the necessary corporate actions and
been granted appropriate authorization, and has obtained the necessary consents
and approvals from third parties and governmental departments. In addition, it
does not violate the restrictions of any laws and contracts that are binding
upon or having an effect on it; |
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4.2.3 |
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This Contract, when executed, constitutes the legal, valid and
binding obligation of Party B, and is enforceable against it pursuant to the
provisions hereof. |
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5.1 |
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Party B agrees that it will make its best effort to take all reasonable
measures to keep in confidence any confidential materials and information of Party A
(hereinafter referred to as the “Confidential Information”) that are known to or
accessible by Party B in connection with the provision of the exclusive technology
development, technology support and technology services by Party A to Party B. Unless
with the prior written consent of Party A, Party B shall not divulge, provide or
transfer such Confidential Information to any third parties. Once this Contract is
terminated, Party B shall return to Party A any documents, materials or software
containing the Confidential Information according to the requirements of Party A, or
destroy them on its own. It shall also delete any Confidential Information from all
relevant memory devices and shall not continue to use such Confidential Information. |
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5.2 |
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The parties hereto acknowledge and confirm that any oral or written information
exchanged between them in connection with this Contract shall be confidential
information. The parties shall keep all such information confidential and shall not
disclose any of the information to any third parties without the written consent of the
other party, except for the following: (a) the information that are or will be known to
the public (provided that they are not disclosed to the public without authorization by
the information receiving party); (b) the information required to be disclosed by
applicable laws, or the rules or regulations of securities exchanges; or (c) the
information required to be disclosed by a party to its legal or financial advisors with
respect to the transaction mentioned herein, for which such legal or financial advisors
shall also comply with the confidentiality obligation as similar as that described in
this Article. Any divulgence of Confidential Information by the employees of either
party or any organization engaged by it shall be deemed as the divulgence of
Confidential Information by such party, and such party shall be liable for the breach
pursuant to this Contract. |
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5.3 |
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The parties agree that this Article 5 shall survive regardless of whether this
Contract is invalid, modified, discharged, terminated or cannot be operated. |
Party B shall indemnify and hold Party A harmless from and against any losses, damages,
obligations and costs arising from any legal actions, claims or other requests as a result
of the content of consulting service and other services requested by Party B.
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Effectiveness and Term |
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7.1 |
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This Contract shall become effective as of the date first written above. |
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7.2 |
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This Contract shall remain valid during the operating period of Party B, except
for the early termination by this Contract or pursuant to the provisions of the
relevant contracts separately signed by the parties hereto. |
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8.1 |
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Early Termination: During the term hereof, Party B shall not terminate this
Contract in advance unless Party A commits gross negligence, fraud, other unlawful act
or is bankrupt. Notwithstanding the above requirements, Party A shall have the right
to terminate this Contract at all times by giving a thirty (30) days prior written
notice to Party B. If, during the term hereof, Party B violates this Contract and
fails to make any remedy in respect thereof within fourteen (14) days after receiving a
written notice of such breach from Party A, Party A may terminate this Contract by
serving written notice to Party B. |
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8.2 |
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Provisions After Termination: After the termination hereof, the rights and
obligations of the parties under Articles 5 and 10 hereof shall remain in effect. |
The validity, performance, interpretation and enforceability of this Contract shall be
governed by the laws of the PRC.
Any disputes between the parties arising from the interpretation and performance of any
provisions hereof shall be resolved in good faith by them through consultation. If no
agreement can be reached within thirty (30) days after a Party proposes to resolve a dispute
through consultation, either party may submit such dispute to China International Economic
and Trade Arbitration Commission for arbitration in accordance with its arbitration rules
then in force. The seat of arbitration shall be Shenzhen. The arbitration shall be
conducted in Chinese. The arbitral award shall be final and binding upon the parties.
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11.1 |
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“Force Majeure” means any event that is beyond the reasonable control of a
party and that is unavoidable even though the party so affected gives reasonable
attention to it, including but not limited to act of government, act of nature, fire,
explosion, typhoon, flood, earthquake, tidal, lightning or war. However, the shortage
of credit, capital or financing shall not be deemed as events beyond the reasonable
control of a party. Any party who seeks for an exemption from its obligations
hereunder because of being affected by “Force Majeure” shall notify the other party as
soon as possible of the event, in respect of which the exemption from such obligations
is sought, and of any steps required to be taken for the completion of the performance
of its obligations. |
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11.2 |
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When the performance of this Contract is delayed or prevented due to the “Force
Majeure” defined above, the party so affected shall not be required to assume any
liabilities hereunder to the extent that it is within the scope of the delay or
prevention. The party so affected shall take appropriate measures to minimize or
eliminate the impact of “Force Majeure” and shall make effort to resume the performance
of any obligations that are delayed or prevented by the “Force Majeure”. Once the
“Force Majeure” is removed, the parties agree to resume the performance of their
respective obligations hereunder with their greatest efforts. |
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| 12. |
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Assignment of this Contract |
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12.1 |
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Party B shall not transfer its rights and obligations hereunder to any third
parties, unless with the prior written consent of Party A. |
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12.2 |
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Party B hereby agrees that, to the extent permitted by the PRC laws, Party A
may transfer its rights and obligations hereunder to any third parties when necessary.
Party A shall only be required to serve written notice to Party B when such transfer is
made, and no consent shall be further required from Party B in respect of such
transfer. |
| 13. |
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Integrity of this Contract |
The parties confirm that, once this Contract becomes effective, it shall constitute the
entire agreement and understanding between the parties hereto with respect to the contents
of this Contract, and shall completely supersede all previous oral or/and written agreement
and understanding between the parties hereto in connection with the contents of this
Contract.
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Severability of this Contract |
If any provision of this Contract is invalid or unenforceable due to its inconsistency with
the relevant laws, such provision shall be deemed to be invalid only to the extent within
the scope of the related jurisdiction, and shall not affect the legal effect of the other
provisions hereof.
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Amendment and Supplement to this Contract |
All amendments and supplements to this Contract shall be made by the parties in writing.
Any amendment contracts and supplemental contracts hereto duly signed by the parties shall
be an integral part of this Contract, and shall have the same legal effect as this Contract.
This Contract is executed in two originals and each of the parties shall keep one original.
Each of them shall have the same legal effect.
IN WITNESS WHEREOF, the parties hereto have caused this Contract to be duly executed by their legal
representatives or authorized representatives on the day first above written.
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Party A: Agria Brother Biotech (Shenzhen) Co., Ltd.
Legal Representative/Authorized Representative: /s/
Common Chop: [Chop of Agria Brother Biotech (Shenzhen) Co., Ltd. is affixed]
Party B: Shenzhen Guanli Agricultural Technology Co., Ltd.
Legal Representative/Authorized Representative: /s/
Common Chop: [Chop of Shenzhen Guanli Agricultural Technology Co., Ltd. is affixed]
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