OPERATING AGREEMENT
Exhibit
10.2
This
Operating Agreement (hereinafter referred to as the “Agreement”) is entered into
among the following parties in Beijing as of March 25, 2010:
Party A:
Beijing CHENGMUJINMING Technology Service Co., Ltd
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Address:
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1704F1
17th floor Tsing Wun Contemporary Building, Mantingfangyuan housing
estate, Qingyunli, Haidian District, Beijing,
China.
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Party
B: Weifang Jinzheng Poultry Co., Ltd.
Address:
Daokou Industry Park, Yingli Town, Shouguang, Shandong Province
China
Party
C: Shan Junfeng
ID No.:
000000000000000000
Party
D: Xxxxx Xxxxx
ID No.:
533221196304180044
Party
E: Xxxx Xxx
ID No.:
110105198808120443
Party
F: Xxxx Xx
ID No.:
110108196610184927
WHEREAS:
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1.
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Party
A is a wholly foreign-owned enterprise duly incorporated and validly
existing under the People’s Republic of China (the “PRC”) law, which has
the technology, expertise, practical experience and professional
technicians to provide consulting services in the field of poultry
feeding, poultry breeding
etc.
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2.
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Party B is a limited liability
company duly incorporated and validly existing under the PRC
law;
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3.
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Party C, Party D, Party E and
Party F are shareholders of Party B, who collectively own 100% of the
equity interests of Party B;
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4.
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Party A has established a
business relationship with Party B by entering into the “Exclusive
Technical Consulting Service Agreement” (the “Service
Agreement”);
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Page 1 of
5
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5.
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Pursuant to the Service
Agreement, Party B shall pay Party A certain fees as set forth in the
Service Agreement and the daily operations of Party B will have a material
effect on its ability to pay the stipulated fee to Party
A;
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6.
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The
Parties desire to enter into this Agreement to provide for Party A’s
guarantee of expenses and losses of Party B and clarify matters in
connection with Party B’s
operation.
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NOW THEREFORE, all parties of
this Agreement hereby agree the following through mutual
negotiations:
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1.
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Party A agrees, subject to the
satisfaction of the relevant provisions by Party B herein, to serve as
guarantor for Party B in the contracts, agreements or transactions in
connection with Party B’s operation between Party B and any other third
party, to provide full guarantee for the performance of such contracts,
agreements or transactions by Party B. Party B agrees, as the
counter-guarantee, to pledge the receivable account in its operation and
the whole assets of its company to Party A. According to the aforesaid
guarantee arrangement, Party A wishes to enter into written guarantee
contracts with Party B’s counter-parties thereof to assume the guarantee
liability as the guarantor when it needs; therefore, Party B, Party C,
Party D, Party E and Party F shall take all necessary actions (including
but not limited to executing relevant documents and transacting relevant
registrations) to carry out the arrangement of counter-guarantee to Party
A.
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2.
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In consideration of the
requirement of Article 1 herein and assuring the performance of the
various operation agreements between Party A and Party B and the payment
of the payables accounts by Party B to Party A, Party B together with its
shareholders, Party C, Party D, Party E and Party F, hereby jointly agree
that Party B shall not conduct any transaction which may materially affect
its assets, obligations, rights or operation (excluding business contracts
entered into in the ordinary course of Party B’s regular operations and
the lien obtained by relevant counter parties due to such agreements)
unless Party A provides its prior written consent. Such transactions shall
include, but not be limited to, the following
matters:
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2.1
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borrowing
money from any third party or assuming any
debt;
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2.2
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selling to or acquiring from any
third party any asset or right, including but not limited to any
intellectual property right;
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2.3
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providing any real guarantee for
any third party with its assets or intellectual property rights;
or
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2.4
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assigning to any third party its
business agreements.
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3.
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In order to ensure the
performance of the various operation agreements between Party A and Party
B and the payment of the various payables by Party B to Party A, Party B
together with its shareholders Party C, Party D, Party E and Party F
hereby jointly agree to accept, from time to time, the corporate policy
advice and guidance provided by Party A in connection with company’s daily
operations and financial management and the recruitment, retention and
dismissal of the company’s
employees.
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4.
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Party B together with its
shareholders Party C, Party D, Party E and Party F hereby jointly agree
that Party C, Party D, Party E and Party F shall cooperate to appoint the
person recommended by Party A as the directors of Party B, and Party B
shall appoint Party A’s senior managers as Party B’s General Manager,
Chief Financial Officer, and other senior officers. If any of the above
senior officers leaves or is dismissed by Party A, he or she will lose the
qualification to take any position in Party B and Party B shall appoint
such other senior officers of Party A recommended by Party A to take such
position. The person recommended by Party A in accordance with this
Article herein should comply with the stipulation on the qualifications of
directors, General Manager, Chief Financial Officer, and other senior
officers pursuant to applicable
law.
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5.
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Party B together with its
shareholders Party C, Party D, Party E and Party F hereby jointly agree
and confirm that Party B shall seek the guarantee from Party A first if it
needs any guarantee for its performance of any contract or loan of flow
capital in the course of operation. In such case, Party A shall have the
right but not the obligation to provide the appropriate guarantee to Party
B on its own discretion. If Party A decides not to provide such guarantee,
Party A shall issue a written notice to Party B immediately and Party B
shall seek a guarantee from other third
party.
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6.
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In the event that any of the
agreements between Party A and Party B terminates or expires, Party A
shall have the right but not the obligation to terminate all agreements
between Party A and Party B including but not limited to the Services
Agreement.
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7.
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Any amendment and supplement of
this Agreement shall be made in writing. The amendment and supplement duly
executed by all parties shall be deemed as a part of this Agreement and
shall have the same legal effect as this
Agreement.
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8.
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If any clause hereof is judged as
invalid or unenforceable according to relevant laws, such clause shall be
deemed invalid only within the applicable area of the Law and shall not
affect the validity or enforceability of any other clause in this
Agreement in any way.
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9.
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Party B shall not assign its
rights and obligations under this Agreement to any third party without the
prior written consent of Party A. Party B hereby agrees that Party A may
assign its rights and obligations under this Agreement as it needs and
such transfer shall only be subject to a written notice sent to Party B by
Party A, and no any further consent from Party B will be
required.
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10.
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All
parties acknowledge and confirm that any oral or written materials
communicated pursuant to this Agreement are confidential documents. All
parties shall keep secret of all such documents and not disclose any such
documents to any third party without prior written consent from other
parties except under the following conditions: (a) such documents are
known or shall be known by the public (other than when the receiving party
discloses such documents to the public without authorization);
(b) any documents disclosed in accordance with applicable laws or
rules or regulations of a stock exchange with jurisdiction; (c) any
documents required to be disclosed by any party to its legal counsel or
financial consultant for the purpose of the transaction of this Agreement,
provided such legal counsel or financial consultant shall also comply with
the confidentiality as stated hereof. Any disclosure by employees or
agencies employed by any party shall be deemed the disclosure of such
party and such party shall assume the liabilities for its breach of
contract pursuant to this Agreement. This Article shall survive the
termination of, amendment of, cancellation of or the inability to perform
any other clause in this
Agreement.
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Page 3 of
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11.
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This Agreement shall be governed
by and construed in accordance with PRC
law.
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12.
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The
parties shall strive to settle any dispute arising from the interpretation
or performance of this Agreement through friendly consultation. In case no
settlement can be reached through consultation, each party can submit such
matter to China International Economic and Trade Arbitration Commission
(“CIETAC”) for arbitration in accordance with its rules of CIETAC. The
arbitration proceedings shall take place in Beijing and shall be conducted
in Chinese. The arbitration award shall be final and conclusive and
binding upon all the parties.
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13.
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This
Agreement shall be executed by a duly authorized representative of each
party as of the date first written above and shall become effective
concurrently.
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14.
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The
parties confirm that this Agreement shall constitute the entire agreement
of the Parties with respect to the subject matters
therein.
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15.
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The term of this agreement is ten
(10) years unless early termination occurs in accordance with
relevant provisions herein or in any other relevant agreements reached by
all parties. This Agreement may be extended at Party A’s written request
prior to the expiration of this Agreement for an additional term of ten
(10) years each. During the aforesaid term, if Party A or Party B
terminates at expiration of the operation term (including any extension of
such term) or by any other reason, this Agreement shall be terminated upon
termination of such party, unless such party has already assigned its
rights and obligations in accordance with Article 9
hereof.
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16.
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This Agreement shall be
terminated on the expiring date unless it is renewed in accordance with
the relevant provision herein. During the term of this Agreement, Party B
shall not terminate this Agreement. Notwithstanding the above stipulation,
Party A shall have the right to terminate this Agreement at any time by
issuing a thirty (30) days prior written notice to Party
B.
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17.
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This
Agreement may be signed in one or more original or facsimile
copies.
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IN WITNESS THEREOF each party
hereto has caused this Agreement to be duly executed by itself or a duly
authorized representative on its behalf as of the date first written
above.
[Reminder
of this page intentionally left blank.]
[Signature
Page]
Party
A: Beijing CHENGMUJINMING Technology Service Co., Ltd
Authorized Representative:
Seal:
Party
B: Weifang Jinzheng Poultry Co., Ltd.
Authorized Representative:
Seal:
Party
C: Shan Junfeng
Signature:
/s/ Shan Junfeng
Party
D: Xxxxx Xxxxx
Signature:
/s/ Xxxxx Xxxxx
Party
E: Xxxx Xxx
Signature:
/s/ Xxxx Xxx
Party
F: Xxxx Xx
Signature:
/s/ Xxxx Xx
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