OPERATING AGREEMENT APLUS INTERNATIONAL, LTD.
Exhibit
3.3
APLUS
INTERNATIONAL, LTD.
THIS
OPERATING AGREEMENT
(hereinafter referred to as the “Agreement”) is made and entered into as of the
1st day of April, 2009 by and among, APLUS INTERNATIONAL, LTD., a Nevada limited
liability company (the “Company”) and each and all of those persons whose names
are subscribed hereto as members (individually, a “Member,” or collectively, the
“Members”).
WHEREAS,
the Organizers have formed the Company as a limited liability company under the
Laws of the State of Nevada by causing the Articles of Organization, conforming
to the requirements of the Act (as defined below) to be filed in the Office of
the Secretary of State for the State of Nevada.
NOW,
THEREFORE, in consideration of the mutual covenants herein contained, and
intending to be legally bound hereby, and for other good and valuable
consideration, the sufficiency of which are hereby acknowledged, the parties
hereby covenant, agree and certify as follows:
ARTICLE
1
DEFINITIONS
1.1 “Act” shall mean the Nevada
Limited Liability Company Act, Chapter 18, Title 6 of the Delaware
Code.
1.2 “Agreement” shall mean
this Operating Agreement as originally executed and as amended from time to
time.
1.3 “Articles of
Organization” shall refer to the
Articles of Organization of the Company filed on April 12, 2005, in the Office
of Secretary of State of Nevada.
1.4 “Capital
Contribution” shall mean any
contribution to the capital of the Company by a Member, whenever made, of cash,
property, services rendered, promissory note(s), or other obligation to
contribute cash or property or to perform services.
1.5 “Code” shall refer to
the Internal Revenue Code of 1986 as it presently exists and hereafter may be
amended.
1.6 “Company” shall refer to APlus
International, Ltd., a limited liability company formed under the laws of the
State of Nevada. The principal business of the Company is to engage
in portfolio development and asset management of the Company’s clients (the
“Business Plan”).
1.7 “Disposition” shall
refer to the sale of all or substantially all of the assets of the Company,
refinancing of the Company property, condemnation (whether pursuant to
governmental authority or pursuant to a private right of condemnation), a casual
or an involuntary conversion.
1.8
“Managers”
shall be the Managers and the person or persons from time-to-time elected
pursuant to Article 8 hereof by the Members to manage the Company.
1.9 “Members” shall be the Members and
any additional or substituted Members admitted pursuant to Article 11
hereof.
1.10 “Membership
Interests” refer to the Members'
interest and ownership in the Company, including, without limitation,
interests in net income and net loss, rights to distributions, allocations,
information, governing rights, and all other rights and obligations under this
Agreement and applicable law related to the Company.
1.11 “Organizers” shall be
the organizers of the Company responsible for filing the Company’s Articles of
Organization.
1.12 “Profits and Losses”
shall mean the net profits or net losses of the Company as shown on its books of
account after deduction of expenses, depreciation and such other charges or
additions as are appropriate under the record keeping system and accounting
principles customarily employed by the Company and consistently applied (being
initially, the cash method of accounting for federal income tax reporting
purposes).
ARTICLE
2
OFFICES
The
principal office of the Company shall be at such place within or without the
State of Nevada as the Managers may determine. The Company may have
such other offices, either within or without the State of Nevada as the Managers
may designate or as the business of the Company may from time-to-time
require.
ARTICLE
3
REGISTERED
OFFICE AND AGENT
The
registered office of the Company in the State of Nevada shall be located at ▇▇▇▇
▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, in the City of Las Vegas, County of Nevada, and
the registered agent at such address shall be Power Point Management,
Ltd.
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ARTICLE
4
TERM
The term
of the Company commenced on the date the Company’s Articles of Organization were
accepted by the Nevada Secretary of State, which also is the effective date of
this Agreement. The Company shall continue for a term of thirty (30)
years and, thereafter, shall continue in existence for such successive periods
of one (1) year each as all of the Members may agree upon by and under any
appropriate instrument, unless it shall have been otherwise dissolved as
hereinafter provided.
ARTICLE
5
RIGHTS
AND OBLIGATIONS OF MEMBERS
5.1 Liability. Each
Member's liability shall be limited as set forth in the Act and other applicable
law. No Member shall be liable for any debts or losses of the Company
beyond his or her Capital Contributions, except as provided herein and in the
Act.
5.2 Business of the
Company. Except as provided herein and under the Act, a Member
shall take no part in the conduct or control of the business of the Company and
shall have no right or authority to act for or to bind the Company in any manner
whatsoever.
5.3 Status of Membership
Interests. Except as is otherwise provided in this Agreement
or the Act, the Membership Interest owned by a Member shall be fully paid and
nonassessable. No Member shall have the right to withdraw or reduce
his or her Capital Contribution to the Company except as a result of the
dissolution and termination of the Company or as otherwise explicitly provided
in this Agreement. No Member shall have the right to bring an action
for partition against the Company and each Member expressly waives any such
right.
ARTICLE
6
MANAGERS
6.1 General
Powers. The business and affairs of the Company shall be
managed by the Managers, except as otherwise provided by the Act, the Articles
of Organization, or this Agreement. The Managers shall devote such
time to the business and affairs of the Company as they shall reasonably deem
necessary to properly conduct such business and affairs in accordance with this
Agreement and applicable law. It is expressly understood and agreed
that the Managers shall not be required to devote their entire business time or
business resources to the business of the Company, unless so required by the
terms of any employment or other agreement between an individual Manager and the
Company relating to the services of a Manager. Except as provided in
the Act, the Articles of Organization, or this Agreement, each Manager shall be
responsible for the management of the Company's business and shall have all
powers generally conferred by law as well as those which are necessary,
advisable or consistent in connection therewith, provided, however, that all
decisions shall be upon the affirmative vote of a majority of the Managers, or
upon the affirmative vote of both of the Managers if there shall be only two (2)
in office. Any note, contract, deed, ▇▇▇▇ of sale, mortgage, lease,
or other commitment purporting to bind the Company to any action which is
authorized in accordance with this Agreement shall be signed on behalf of the
Company by any Manager or by any person to whom the Managers designate authority
under an agreement, arrangement or resolution.
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6.2 Limitations on Authority of
the Managers.
A. The
Managers shall not have the authority to:
(a) do
any act in contravention of this Agreement;
(b) do
any act which would make it impossible to carry on the ordinary business of the
Company. For purposes of this Section 6.2, the sale of all or a
substantial portion of the Company's assets not in the ordinary course of
business, without the prior written approval of the holders of two-thirds of the
Membership Interests, shall be deemed to be an act making it impossible for the
Company to carry on its ordinary business;
(c) confess
a judgment against the Company;
(d) possess
Company property or assign the rights of the Company in specific Company
property for other than Company purposes;
(e) admit
a person as a Member except as provided in the Act and this
Agreement;
(f) continue
the business of the Company in contravention of Article 12 hereof;
(g) combine
the Company with another entity without the prior written consent of the holders
of two-thirds of the Membership Interests; or
(h) amend
the Articles of Organization or this Agreement without the prior written consent
of the holders of two-thirds of the Membership Interests.
B. The
Managers shall not do any of the following without the consent of a majority of
the Initial Members:
(i) The
sale or disposition of assets of the Company having an aggregate value in excess
of twenty five percent (25%) of the net book value of all assets of the Company,
unless in the context of a determination by the Board of Managers to cease the
conduct of all business of the Company.
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(ii) The
adoption of any official Business Plan or any significant deviation from the
Business Plan in effect from time-to-time.
(iii) Engaging
in any business outside the scope of the business purpose of the
Company.
(iv) Increasing
the authorized and/or issued share capital or issuing any new membership units
of the Company , or granting any option, warrant or other interest over, or
effecting any other reorganization of, the capital of the Company.
(v) Incurring
any indebtedness in the nature of borrowings or making any loan other than as
expressly provided for or contemplated by the Business Plan then in
effect.
6.3 Liability of
Managers. Each Manager shall discharge his, her or its duties
to the Company in good faith and with reasonable care. Unless fraud,
deceit, gross negligence, willful misconduct or a wrongful taking or other
self-dealing shall be proved in a court of competent jurisdiction, a Manager
shall not be liable or obligated to the Members for any mistake of fact or
judgment or for the doing of any act or the failure to do any act by the Manager
in conducting the business, operations and affairs of the Company which may
cause or result in any loss or damage to the Company or its Members, or for
losses by the Company or the Members. A Manager shall incur no
liability to the Company or to any of the Members as a result of engaging in any
other business or venture, except as may be specified in this Agreement, or any
employment or other agreement relating to the Manager’s provision of services to
the Company.
The
Company shall indemnify any Person (such term includes any natural person and
any legal entity), who was or is a party or is threatened to be made a party to
any threatened, pending, or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative by reason of the fact that he is or
was a Manager, Member, officer, employee or agent of the Company or
is or was serving at the request of the Company as a manager, director, officer,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise (“Indemnified Person”), against expenses (including attorneys’
fees), judgments, fines and amounts paid in settlement (subject to the
provisions below) actually and reasonably incurred by him in connection with
such action, suit or proceeding if the act or failure to act giving rise to the
claim for indemnification is not determined by a court to have constituted
fraud, bad faith, gross negligence, recklessness, willful misconduct, or breach
of this Agreement.
The
Company shall not be required to indemnify an Indemnified Person for amounts
paid in settlement unless the Company has approved the terms of such
settlement.
6.4 Number and
Qualifications. The Company shall have at least one and not
more than seven (7) Managers. No change in the number of Managers
shall have the effect of shortening the term of any incumbent
Manager. Managers shall be natural persons of the age of 18 years or
older.
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6.5 Election and Term of
Office. The initial Managers shall hold office until their
respective successors are duly elected and qualified. Managers shall
be elected by the affirmative vote of a majority of Membership Interests, to
hold office until the next succeeding annual meeting. Each Manager
shall hold office until his or her successor is duly elected and qualified,
unless sooner displaced. Election of Managers need not be by
ballot. Managers also may be elected at a special meeting of the
Members by vote of the holders of a majority of Membership
Interests.
6.6 Compensation. Salary
or other compensation of the Managers may be fixed from time to time by the
affirmative vote of Members holding a majority of the Membership Interests, and
no Manager shall be prevented from receiving such salary by reason of the fact
that he is also a Member of the Company.
6.7 Removals and
Resignations. Except as may otherwise be provided by the Act,
the Members may, at any meeting called expressly for the purpose, by a vote of
the Members owning a majority of Membership Interests entitled to vote at an
election of Managers, remove any or all Managers from office, with or without
cause. A Manager may resign at any time by giving written notice to
the Board of Managers. The resignation shall take effect immediately
upon the receipt of the notice, or at any later time specified
therein. The acceptance of such resignation shall not be necessary to
make it effective, unless the resignation by its terms requires
acceptance.
6.8 Vacancies. Any
vacancy occurring in the office of a Manager, whether by reason of an increase
in the number of Managers or otherwise, shall be filled by the affirmative vote
of the Members holding a majority of Membership Interests. A Manager
elected to fill a vacancy shall be elected for the unexpired term of his or her
predecessor in office, unless sooner displaced.
6.9 Tax
Matters. The Managers may designate a Manager or committee of
Managers as the “Tax Matters Manager” or “Tax Matters Committee” for the purpose
of determining the tax treatment of any item (“Company Items”) required to be
taken into account for the Company's taxable year under any provision of the
Code. Such Tax Matters Manager or, Committee shall be authorized to
enter into settlement agreements with the Internal Revenue Service on behalf of
all Members with respect to Company Items, and each Member (except any Member
who has filed a statement described in Code Section 6224 (c)(3)(B)) agrees to be
bound by the terms of any settlement agreement entered into by the Tax Matters
Manager or Committee on behalf of all Members. Pursuant to this
authorization, each Member who has not so filed agrees to execute such further
documents as may be necessary or desirable to cause the settlement agreement to
be binding on such Member and not to exercise any right or undertake any other
action which is inconsistent with any settlement agreement entered into by the
Tax Matters Manager or Committee on behalf of such Member. The Tax
Matters Manager or Committee shall (i) keep the Members reasonably informed as
to the status of all administrative and judicial Tax proceedings, (ii) file with
the Internal Revenue Service a request for administrative adjustment if the Tax
Matters Manager or Committee deems such to be appropriate, and (iii) file a
petition in a court of competent jurisdiction regarding any dispute with respect
to Company Items which the Tax Matters Manager or Committee deems
appropriate.
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ARTICLE
7
DISTRIBUTIONS
7.1 Distributions
(a) All
Cash Available for Distribution shall be allocated to the Members and
distributed among them pro rata in accordance with their relative Membership
Interests in such amounts as the Managers in their sole discretion may from
time-to-time, and at such times, determine to be appropriate for distribution to
members and consistent with the then applicable business plan and financial
requirements of the Company or in accordance with the provisions for
distribution set forth herein.
(b) Upon
the resignation of a Member, except as otherwise provided in this Agreement, a
resigning Member shall not be entitled to the return of such Member’s capital
contribution or capital account, or to any other payment. Unless the
resigning Member and a majority in interest of the other Members agree on the
terms of redemption of the resigning Member’s Membership Interest, the resigning
Member shall receive the amount such former Member would have
received if still a Member at the time of dissolution. No Member,
regardless of the nature of his or her contribution, has a right to demand or
receive any distribution from the Company in any form other than
cash.
(c) Notwithstanding
anything to the contrary herein contained, the net proceeds realized and
available from any Disposition (which in the case of insurance funds from a
casualty shall take into account the costs or expenditures for repair or
replacement and the requirements of any mortgage holder on the Company property)
shall be distributed in the following order of priority:
(i) to
pay any debts and liabilities of the Company;
(ii) to
establish any reserve which the Managers deem reasonably necessary to provide
for any contingent or unforeseen liabilities or obligations of the Company;
provided that, at the expiration of such period of time as the Managers deem
advisable, the remaining balance of such reserve shall be distributed in the
manner set forth herein;
(iii) to
pay the Members pro rata according to their respective Membership Interests as
set forth herein.
10.2 Limitations on
Distributions. Company distributions, shall not be made to the
extent that, after giving effect to the distribution, all liabilities of the
Company, other than liabilities to Members on account of their Membership
Interests, would exceed the fair value of the Company's assets. No
distributions shall be made to any Member at any time except accrued and unpaid
Dividends and Profit Participation to the Class B Members.
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ARTICLE
8
DISSOLUTION
AND TERMINATION OF THE COMPANY
8.1 Dissolution and
Termination. The Company shall be dissolved and/or terminated
under the Act upon the occurrence of any of the following events:
(a) Upon
the expiration of the term of this Agreement; or
(b) Upon
the written consent of the holders of two-thirds of the Membership
Interests.
8.2 Distribution upon
Termination. Upon the dissolution and termination of the
Company, the Managers shall take full account of the Company's assets and
liabilities, the assets shall be liquidated as promptly as is consistent with
obtaining fair value therefor, and the proceeds therefrom, to the extent
sufficient therefor, shall be applied and distributed in the following
order:
(a) to
the payment of all creditors, other than Members, in the order of priority as
provided by the Act, except any claims of secured creditors whose obligations
will be assumed or otherwise transferred on the liquidation of the Company's
assets;
(b) to
the payment of any obligations of the Company to any Member;
(c) to
the establishment of any reserves which the Managers deem reasonably necessary
for any contingencies or unforeseen liabilities or obligations of the
Company. Such reserves shall be paid over by the Managers to an
escrow agent or shall be held for the purpose of disbursing such reserves in
payment of any of the said contingencies and, at the expiration of such period
as the Managers shall deem advisable, the balance thereof shall be distributed
in the manner and order provided in this Section 8.2; and
(d) to
the payment of all Members of their respective positive capital accounts (after
taking into account all capital account adjustments under Section 10.3 of this
Agreement during the taxable year such liquidation occurs other than any
adjustments for the liquidating distributions hereunder), including Members who
resigned and received less than the fair value of their Membership Interests at
the time of their resignation.
8.3 Allocations During
Dissolution. Throughout the dissolution and winding up of the
Company, all of the Members shall be allocated their share of Company
Items. Any gain or loss from a sale or other disposition of any
Company property shall also be allocated in accordance with Article 10 of this
Agreement.
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8.4 Distributions in
Kind. In the event a distribution of Company property in kind
is made, such property shall be either: (i) transferred and conveyed to the
Members or their assigns so as to vest in each of them, as tenants-in-common, a
percentage interest in the whole of said property equal to the percentage
interest he would have received had the aforesaid property not been distributed
in kind; or (ii) transferred and conveyed to the Members on an asset-by-asset
determination, as determined by the Managers in their sole and absolute
discretion. Notwithstanding anything to the contrary herein
contained, distributions in kind are expressly authorized to such extent as the
Managers may determine in their sole and absolute discretion and the allocation
of gain or loss in connection therewith, if any, shall be allocated in
accordance with the Provisions of Section 10.1 hereof.
8.5 Time. A
reasonable time, as determined by the Managers, not to exceed six months from
the date of an event of dissolution, shall be allowed for the orderly
liquidation of the assets of the Company and the discharge of Company
liabilities.
8.6 Statement of
Termination. The Managers shall furnish each of the Members,
at the Company's expense, with a statement which shall set forth the assets and
liabilities of the Company as of the date of complete liquidation and
distribution as herein provided. Such statement shall also schedule
the receipts and disbursements made with respect to the termination hereunder
and shall be final and binding upon all persons, except such persons who may
file a specific and detailed written protest thereof within 90 days of his or
her receipt of the statement.
8.7 Certificate of
Cancellation. Upon the completion of termination in accordance
with the terms hereof, the Company shall terminate and the Members shall
execute, acknowledge, and cause to be filed a certificate of cancellation of the
Company, whereupon the Company will cease to exist in all respects.
8.8 Liquidating
Trustee. In the event of a dissolution of the Company, the
liquidation of its assets and the discharge of its liabilities may be carried
out by a liquidating trustee or receiver who shall be a bank or trust company or
other person or firm having experience in managing, liquidating, or otherwise
handling property of the type then owned by the Company. Any such
liquidating trustee or receiver shall be designated by the
Managers. A liquidating trustee shall not be personally liable for
the debts of the Company but otherwise shall have such obligations and
authorities as are given the Managers pursuant to this Agreement or as may be
agreed upon between the Members and said liquidating trustee.
ARTICLE
9
ACCOUNTING
AND REPORTS
9.1 Books and
Records. At the expense of the Company, the Managers shall
maintain records and accounts of all operations and expenditures of the
Company. In accordance with the Act, the Company shall keep at its
principal place of business the following records:
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(a) A
current list of the full name and last known business, residence, or mailing
address of each Member and Manager, both past and present;
(b) A
copy of the Articles of Organization and all amendments thereto, together with
executed copies of all powers of attorney pursuant to which any amendment has
been executed;
(c) Copies
of the Company's federal, state, and local income tax returns and reports, if
any, for the three most recent years;
(d) Copies
of this Agreement, copies of any writings permitted or required with respect to
a Member's obligation to contribute cash, property or services, and copies of
any financial statements of the Company for the three most recent
years;
(e)
Minutes of every annual, special, and court-ordered meeting of the Members
and/or Managers; and
(f) Any
written consents obtained from Members or Managers for actions taken without a
meeting.
Such
books and records shall be open for the inspection and examination by any
Member, in person or by his or her duly authorized representative, at reasonable
times at the principal office of the Company upon at least five business days
prior written notice and a showing that the request is made in good faith and
for a proper purpose.
The
Company's books and records shall be kept on the cash method of accounting for
federal income tax reporting purposes and any change in method shall be made by
the Tax Matters Manager (or Tax Matters Committee as the case may be) in its
sole discretion.
9.2 Fiscal
Year. The annual accounting period of the Company shall be the
calendar year.
9.3 Returns and
Reports. The Company shall prepare or have prepared and
distribute, at the Company's expense, a completed copy of the Company's federal
information return and any similar state income tax return required by
applicable law. The Managers will use reasonable efforts to mail each
Member's Schedule K-1 (Form 1065) within one hundred (100) days of the end of
each calendar year of the Company. The Company shall also furnish to
each Member such other reports on the operation of the Company as may be
reasonably requested. Each Member shall file such state income tax
returns and make timely payment of all state taxes imposed with respect to such
Member's share of Company income.
9.4 Bank
Accounts. All funds of the Company shall be deposited in its
name in such checking and savings accounts or time certificates (or the like) as
shall be designated by the Managers. Withdrawals therefrom shall be
made upon such one or more signatures as the Managers may designate; provided,
however, that only Managers who maintain an office in the principal office of
the company may be a signatory on any bank account established by the
Company.
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9.5 Federal Income Tax
Elections. All elections required or permitted to be made by
the Company under the Code shall be made by, the Tax Matters Manager (or Tax
Matters Committee, as the case may be) in his or her sole
discretion.
ARTICLE
10
MISCELLANEOUS
10.1 Amendments. Any
amendment to this Agreement may be proposed by any Member or
Manager. A vote on a proposed amendment shall be taken within 30 days
of the date notice of the proposal is given to the Members. An
amendment shall become effective at such time as it has been approved in writing
by all of the Members entitled to vote.
10.2 Notices. All
notices required or permitted hereunder shall be in writing and shall be deemed
effectively given: (a) upon personal delivery to the party to be notified; (b)
when sent by confirmed facsimile if sent during normal business hours of the
recipient, if not, then on the next business day; (c) three (3) business days
after having been sent by registered or certified mail, return receipt
requested, postage prepaid; or (d) one (1) day after deposit with a nationally
recognized overnight courier, specifying next day delivery, with written
verification of receipt. All such communications shall be sent to the Company at
principal office, and to the Members at the address set forth on the
signature page hereto or at such other address as the Company or Member may
designate by ten (10) days advance written notice to the other parties
hereto.
10.3 Captions. Titles
or captions contained in this Agreement are inserted only as a matter of
convenience and reference, and in no way define, limit, extend, or describe the
scope of this Agreement or the intent of any provision hereof.
10.4 Usage. As
used herein, the masculine, feminine or neuter gender, and the singular or
plural numbers, shall each be deemed to include the others unless the context
clearly indicates to the contrary. “Person” or “party” shall include
a corporation, firm, partnership, proprietorship, or other form of
association.
10.5 Counterparts. This
Agreement may be executed in any number of counterparts and all of such
counterparts shall be deemed an original and for all purposes constitute one
Agreement binding on the parties hereto, notwithstanding that all parties are
not signatory to the same counterpart.
10.6 Binding
Agreement. Except as otherwise provided herein to the
contrary, this Agreement shall be binding upon and inure to the benefit of the
parties hereto, their personal representatives, successors, assigns, and legal
representatives.
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10.7 Severability. If
any provision of this Agreement shall be declared invalid or unenforceable, the
remainder of this Agreement will continue in full force and effect so far as the
intent of the parties can be carried out.
10.8 Entire Agreement; Governing
Law. This Agreement, including the Exhibits hereto, contains
the entire agreement of the parties hereto. In the event any of the
terms or conditions hereof shall conflict with any of the terms or condition of
the Articles of Organization, the terms and conditions of this Agreement shall
control. All amendments, modifications, supplements or riders hereto,
if any, shall be set forth in writing executed by the parties hereto, and shall
be attached to this Agreement at the time of such execution. This
Agreement shall be governed by the laws of the State of Nevada.
10.9 Further
Action. All parties agree to execute and deliver such papers,
documents, and instruments, and perform such acts, as are necessary or
appropriate to implement or carry out the terms or intent or
hereof.
IN WITNESS WHEREOF, the
undersigned Members have executed this Operating Agreement under their seal this
1st day of April ,
2009.
APLUS
INTERNATIONAL, LTD.
By:/s/
Yao-Ting
▇▇
▇▇▇-▇▇▇▇
Su, Member
RADIANT
SUN DEVELOPMENT S.A.
By: /s/ ▇▇▇-▇▇▇
Lo
▇▇▇-▇▇▇
Lo, President
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SCHEDULE
A
|
Member
|
Membership Interest
|
|
|
Xodtec
Technology Co., Ltd.
|
16.8%
|
|
|
Targetek
Technology Co., Ltd.
|
15.2%
|
|
|
UP-Technology
Co., Ltd.
|
40.0%
|
|
|
Radiant
Sun Development S.A.
|
28.0%
|
13