AGREEMENT TO TRANSFER OF OPERATING AGREEMENT
AGREEMENT
TO TRANSFER OF OPERATING AGREEMENT
THIS
AGREEMENT TO TRANSFER OF OPERATING AGREEMENT (this “Agreement”) is entered into
as of March 10, 2008, by and among Skystar Bio-Pharmaceutical (Cayman) Holdings
Co., Ltd., a Cayman Islands company incorporated under the laws of the Cayman
Islands (“Skystar
Cayman”),
Sida
Biotechnology (Xian) Co., Ltd., a limited liability company organized under
the
laws of the People’s Republic of China and a wholly foreign owned enterprise
(“Sida”),
Xxxxxxx Xx, chairman and shareholder of Xian Tianxing Bio-Pharmaceutical Co.,
Ltd., a company with joint stock limited liability organized under the laws
of
the PRC (“Tianxing”),
certain shareholders of Tianxing (collectively with Xxxxxxx Xx, the
“Shareholders”)
who
are signatories to that certain Operating Agreement dated as of October 28,
2005
(the “Operating
Agreement”),
and
Skystar Bio-Pharmaceutical Company, a Nevada corporation (“Skystar”).
Skystar Cayman, Sida and the Shareholders are collectively referred to as the
“Parties”. Skystar is made a party to this Agreement for the sole purpose of
acknowledging the Agreement.
WHEREAS,
in connection with a certain Consulting Services Agreement dated as of October
28, 2005 (the “Consulting
Services Agreement”),
Skystar Cayman entered into the Operating Agreement with Tianxing and the
Shareholders;
WHEREAS,
Skystar Cayman, Sida and Tianxing have entered into an Amendment to Consulting
Services Agreement dated as of even date herewith (the “Amendment”),
whereby Skystar Cayman has transferred the Consulting Services Agreement and
assigned all of its rights and obligations thereunder to Sida;
WHEREAS,
in connection with the Amendment, Skystar Cayman desires to transfer the
Operating Agreement, and assign all of its rights and obligations thereunder,
to
Sida, and Sida desires to accept such transfer and assignment;
WHEREAS,
Section 9 of the Operating Agreement provides that Skystar Cayman may assign
its
rights and obligations under the Operating Agreement at its discretion pursuant
to a written notice to Tianxing and that no consent from Tianxing is required
for such assignment;
NOW,
THEREFORE, in consideration of the foregoing recitals and the mutual agreements
herein contained and for other good and valuable consideration, the parties
hereto agree as follows:
A. TRANSFER
OF THE OPERATING AGREEMENT.
(1) Skystar
Cayman hereby transfers the Operating Agreement, and assigns all of its rights
and obligations thereunder, to Sida, and Sida hereby accepts such transfer
and
assignment (collectively the “Transfer”).
(2) In
accordance with Section 9 of the Operating Agreement, Skystar Cayman shall
notify Tianxing of the Transfer pursuant to a written notice, the form of which
is attached hereto as Exhibit
A.
(3) Sida
shall cooperate with Tianxing and take all actions necessary to replace Skystar
Cayman as a guarantor to such guarantee agreements, if any, entered into by
Skystar Cayman pursuant to Section 1 of the Operating Agreement.
(4) Sida
may
not transfer this Agreement and, pursuant to the Transfer, its rights and
obligations under the Operating Agreement, without the prior written consent
of
Skystar Cayman.
B. GENERAL
PROVISIONS.
(1)
Notices.
All
notices and other communications hereunder shall be in writing and shall be
deemed to have been duly given if delivered personally, sent by overnight
courier or mailed by registered or certified mail (postage prepaid and return
receipt requested) to the party to whom the same is so delivered, sent or mailed
at addresses set forth as follows (or at such other address for a party as
shall
be specified by like notice):
If
to
Skystar Cayman:
Skystar
Bio-Pharmaceutical (Cayman) Holdings Co., Ltd.
Address: Septoa
Center, 0xx
Xxxxx
Xxxxxx
Xxxx, Xxxxx Xxxxxx, Xxxxxx Xxxxxxx
Facsimile:
(000)
0000-0000
Attn: Chairman
If
to
Sida:
Sida
Biotechnology (Xian) Co., Ltd.
Address:
Rm.
10601, Xxxxxx Xxxxx, Xx.0, Xxxxxxx Xxxx Xxxxx,
Xxxxxx
Xxxxxxxx, Xxxx Xxxxxxxx, P.R. China
Facsimile: x00-00-00000000
Attn: Chairman
If
to the
Shareholders:
x/x
Xxxxxxx Xx
Xxxxxxx: Xx.
00000, Xxxxxx Xxxxx, Xx.0, Xxxxxxx Xxxx Xxxxx,
Xxxxxx
Xxxxxxxx, Xxxx Xxxxxxxx, P.R. China
Facsimile: x00-00-00000000
(2) Interpretation.
The
headings contained in this Agreement are for reference purposes only and shall
not affect in any way the meaning or interpretation of this Agreement.
References to Sections and Articles refer to sections and articles of this
Agreement unless otherwise stated.
(3)
Severability.
If any
term, provision, covenant or restriction of this Agreement is held by a court
of
competent jurisdiction to be invalid, void or unenforceable, the remainder
of
the terms, provisions, covenants and restrictions of this Agreement shall remain
in full force and effect and shall in no way be affected, impaired or
invalidated and the parties shall negotiate in good faith to modify this
Agreement to preserve each party’s anticipated benefits under this
Agreement.
(4)
Miscellaneous.
This
Agreement (together with all other documents and instruments referred to
herein): (a) constitutes the entire agreement and supersedes all other prior
agreements and undertakings, both written and oral, among the parties with
respect to the subject matter hereof; (b) except as expressly set forth herein,
is not intended to confer upon any other person any rights or remedies hereunder
and (c) shall not be assigned by operation of law or otherwise, except as may
be
mutually agreed upon by the parties hereto.
(5)
Governing
Law.
This
Agreement shall be governed by, and construed and enforced in accordance with,
the laws of the People’s Republic of China.
(6)
Counterparts
and Facsimile Signatures.
This
Agreement may be executed in two or more counterparts, which together shall
constitute a single agreement. This Agreement and any documents relating to
it
may be executed and transmitted to any other party by facsimile, which facsimile
shall be deemed to be, and utilized in all respects as, an original, wet-inked
manually executed document.
(7) Amendment.
This
Agreement may be amended, modified or supplemented only by an instrument in
writing executed by Skystar Cayman and Sida.
(8) Parties
In Interest.
Except
as otherwise provided herein, the terms and conditions of this Agreement shall
inure to the benefit of and be binding upon the respective heirs, legal
representatives, successors and assigns of the parties hereto.
(9) Waiver.
No
waiver by any party of any default or breach by another party of any
representation, warranty, covenant or condition contained in this Agreement
shall be deemed to be a waiver of any subsequent default or breach by such
party
of the same or any other representation, warranty, covenant or condition. No
act, delay, omission or course of dealing on the part of any party in exercising
any right, power or remedy under this Agreement or at law or in equity shall
operate as a waiver thereof or otherwise prejudice any of such party’s rights,
powers and remedies. All remedies, whether at law or in equity, shall be
cumulative and the election of any one or more shall not constitute a waiver
of
the right to pursue other available remedies.
SIGNATURE
PAGE
IN
WITNESS WHEREOF,
the
Parties hereto have caused this Agreement to be duly executed by their legal
representatives and duly authorized representatives on their behalf as of the
date first set forth above.
SKYSTAR
CAYMAN:
Skystar
Bio-Pharmaceutical (Cayman) Holdings Co., Ltd.
By:
/s/
Xxxxxxx Xx
Name:
Xxxxxxx Xx
Title:
Chairman
SIDA:
Sida
Biotechnology (Xian) Co., Ltd.
By:
/s/
Xxxxxxx Xx
Name:
Xxxxxxx Xx
Title:
Chairman
ACKNOWLEDGED
BY:
SKYSTAR:
By:
/s/
Weibing Lu_________
Name:
Xxxxxxx Xx
Title:
Chief Executive Officer
SIGNATURE
PAGES OF SHAREHOLDERS
SHAREHOLDERS:
/s/
LU
Weibing_______ /s/
LU
Qing__________
LU
Xxxxxxx XX
Qin
/s/
WANG Guangen ___ /s/
SHEN Hua________
WANG
Xxxxxxx XXXX
Hua
/s/
LU
Zhigao_________ /s/
LU
Yajun_________
LU
Zhigao XX
Xxxxx
/s/
LU
Zhidao_________ /s/
LU
Jingwei________
LU
Zhida LU
Jingwei
/s/
WEN Wei_________ /s/
WANG Hao_______
XXX
Xxx XXXX
Xxx
/s/
WANG Guanming__ /s/
LU
Jingkang_______
WANG
Xxxxxxxx XX
Jingkang
/s/
SHEN Minhua_____ /s/
FEN Yong_________
XXXX
Xxxxxx FEN
Yong
/s/
LU
Guojuo________ /s/
WANG Yaodi______
LU
Guojuo WANG
Yaodi
/s/
LU
Bin___________ /s/
XXXXX Xxxxxx ___
LU
Xxx XXXXX
Wenwei
/s/
SHI Miaodi________ /s/
ZHANG Huiping____
SHI
Miaodi XXXXX
Xxxxxxx
/s/
XXXX Zaigang_____ /s/
ZHANG Xinya______
ZHAO
Zaigang ZHANG
Xinya
/s/
SUN Weijun_______ /s/
LIU Xia____________
SUN
Weijun XXX
Xxx
EXHIBIT
A
NOTICE
OF
TRANSFER AND ASSIGNMENT OF OPERATING AGREEMENT
To: The
Board
of Directors of
Xian
Tianxing Bio-Pharmaceutical Co., Ltd.
From: Skystar
Bio-Pharmaceutical (Cayman) Holdings Co., Ltd.
Date: March
10,
2008
Dear
Members of the Board of Directors:
This
letter shall serve as formal notice of the transfer by Skystar Cayman of that
certain Operating Agreement dated as of October 28, 2005 by and among Skystar
Cayman, Tianxing and certain shareholders of Tianxing (the “Operating
Agreement”).
Effective as of March 10, 2008 (the “Transfer
Date”),
the
Operating Agreement shall be deemed transferred, and all of Skystar Cayman’s
rights and obligations thereunder assigned, to Sida Biotechnology (Xian) Co.,
Ltd., a limited liability company organized under the laws of the People’s
Republic of China and a wholly foreign owned enterprise (“Sida”).
Sida
is the wholly owned subsidiary of Fortunate Time International Limited, a
company incorporated under the laws of the Special Administration Region of
Hong
Kong (“Fortunate
Time”),
and
Fortunate Time is the wholly owned subsidiary of Skystar Cayman. The transfer
and assignment is made pursuant Section 9 of the Operating Agreement. From
and
after the Transfer Date, Sida shall assume from Skystar Cayman all of its
rights, powers, privileges and obligations under the Operating Agreement, and
shall be entitled to all remedies thereunder.
Very
sincerely,
Skystar
Bio-Pharmaceutical (Cayman) Holdings Co., Ltd.
By:
Name:
Xxxxxxx Xx
Title:
Chairman
