ENTRUSTED MANAGEMENT AGREEMENT BETWEEN CHEN ZHISHENG FOSHAN NANHAI KE DA HENG SHENG AQUATIC CO., LTD. AND GUANGZHOU FLOURISHING BLESSING HENG SENG AGRICULTURAL TECHNOLOGY LIMITED December 2009 GUANGZHOU, CHINA
BETWEEN
XXXX
XXXXXXXX
FOSHAN
NANHAI XX XX XXXX SHENG AQUATIC CO., LTD.
AND
GUANGZHOU
FLOURISHING BLESSING XXXX XXXX
AGRICULTURAL
TECHNOLOGY LIMITED
December
2009
GUANGZHOU, CHINA
This
Entrusted Management Agreement (the “Agreement”) is entered into on
26 December in Guangzhou, China by:
Party A:
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1
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XXXX
Xxxxxxxx, a citizen of PRC with ID Card number of 440622196305103634, owns
100 % shares of Foshan Nanhai Xx Xx Xxxx Sheng Aquatic Co., Ltd.
;
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2 Foshan
Nanhai Xx Xx Xxxx Sheng Aquatic Co., Ltd. is an enterprise incorporated and
existing within the territory of China in accordance with the law of the
People’s Republic of China, the registration number of its legal and valid
Business License is 440682000015895 and the legal registered address is East of
Xxxx Xxxx, Wan Xxxx Xxxx, Heshun Town, Nanhai District, Foshan City, Guangdong
Province, China.
and
Party
B:
Guangzhou
Flourishing Blessing Xxxx Xxxx Agricultural Technology Limited is a
wholly-foreign owned enterprise in PRC, and the registration number of its legal
and valid Business License is Qi Du Xxx Xxx Zong Zi No. 011458 and its
legal address is 17 of 301, Xx. 000, Xxxxxxxx Xxxx, Xxxxxxxx and Technology
Development District, Guangzhou City, Guangdong Province, China.
Whereas:
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1
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Party
A constitutes Foshan Nanhai Xx Xx Xxxx Sheng Aquatic Co.,
Ltd. (hereinafter referred to as “Opco ”) and all of its
shareholders holding all issued and outstanding shares of Opco . Under
this Agreement, Opco and XXXX Xxxxxxxx have acted collectively as one
party to this Agreement;
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2
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Guangzhou
Flourishing Blessing Xxxx Xxxx Agricultural Technology Limited
(hereinafter referred to as “Party B”) is a
wholly-foreign owned enterprise incorporated and existing within the
territory of China in accordance with the law of the People’s Republic of
China, the registration number of its legal and valid Business License
is Qi Du Xxx Xxx Zong Zi No. 011458, and the legal registered address
is 17 of 301, Xx. 000, Xxxxxxxx Xxxx, Xxxxxxxx and Technology Development
District, Guangzhou City, Guangdong Province,
China.
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3
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Party
A desires to entrust Party B to manage and operate Opco
;
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4
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Party
B agrees to accept such entrustment and to manage Opco on behalf of Party
A.
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Therefore,
in accordance with laws and regulations of the People’s Republic of China, the
Parties agree as follows after friendly consultation based on the principle of
equality and mutual benefit.
Article
1 Entrusted Management
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1.1
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Party
A agrees to entrust the management of Opco to Party B pursuant to the
terms and conditions of this Agreement. Party B agrees to manage Opco in
accordance with the terms and conditions of this
Agreement.
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1.2
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The
term of this Entrusted Management Agreement (the “Entrusted Period”) shall
be from the effective date of this Agreement to the earlier of the
following:
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(1) the
winding up of Opco, or
(2) the
date on which Party B completes the acquisition of Opco.
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1.3
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During
the Entrusted Period, Party B shall be fully and exclusively responsible
for the management of Opco. The management service includes without
limitation the following:
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(1)
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Party
B shall be fully and exclusively responsible for the operation of Opco,
which includes the right to appoint and terminate members of Board of
Directors and the right to hire managerial and administrative personnel
etc. Party A or its voting proxy shall make a shareholder’s resolution and
a Board of Directors’ resolution based on the decision of Party
B.
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(2)
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Party
B has the full and exclusive right to manage and control all cash flow and
assets of Party A. Opco shall open an entrusted account or designate an
existing account as an entrusted account. Party B has the full and
exclusive right to decide the use of the funds in the entrusted account.
The authorized signature of the account shall be appointed or confirmed by
Party B. All of the funds of Opco shall be kept in this account, including
but not limited to its existing working capital and purchase price
received from selling its production equipment, inventory, raw materials
and accounts receivable to Party B (if any), all payments of funds shall
be disbursed through this entrusted account, including but not limited to
the payment of all existing accounts payable and operating expenses,
payment of employees salaries and purchase of assets, and all revenues
from its operation shall be kept in this
account.
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(3)
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Party
B shall have the full and exclusive right to control and administrate the
financial affairs and daily operation of Opco, such as entering into and
performance of contracts, and payment of taxes
etc.
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1.4
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In
consideration of the services provided by Party B hereunder, Party A shall
pay an entrusted management fee to Party B which shall be equal to the
earnings before tax (if any) of Opco. The entrusted management fee shall
be as follows: during the term of this agreement, the entrusted management
fee shall be equal to Opco’s estimated earnings before tax, being the
monthly revenues after deduction of operating costs, expenses and taxes
other than income tax. If the earnings before tax is zero, Opco is not
required to pay the entrusted management fee; if Opco sustains losses, all
such losses will be carried over to next month and deducted from next
month’s entrusted management fee. Both Parties shall calculate, and Party
A shall pay, the monthly entrusted management fee within 20 days of the
following month. The above monthly payment shall be adjusted after the end
of each quarter but before the filing of tax return for such quarter (the
“Quarterly Adjustment”), so as to make the after-tax profit of Opco of
that quarter is zero. In addition, the above monthly payment shall be
adjusted after the end of each fiscal year but before the filing for the
yearly tax return (the “Annual Adjustment”), so as to make the after-tax
profit of Opco of that fiscal year is
zero.
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1.5
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Party
B shall assume all operation risks out of the entrusted management of Opco
and bear all losses of Opco. If Opco has no sufficient funds to repay its
debts, Party B is responsible for paying off these debts on behalf of
Opco; if Opco’s net assets are lower than its registered capital, Party B
is responsible for funding the
deficit.
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Article
2 Rights and Obligations of the
Parties
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2.1
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During
the term of this Agreement, Party A’s rights and obligations
include:
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(1)
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to
hand over Opco to Party B for entrusted management as of the effectiveness
date of this Agreement and to hand over all of business materials together
with Business License and corporate seal of Opco to Party
B;
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(2)
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Party
A has no right to make any decision regarding Opco’s operations without
the prior written consent of Party
B;
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(3)
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to
have the right to know the business conditions of Opco at any time and
provide proposals;
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(4)
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to
assist Party B in carrying out the entrusted management in accordance with
Party B’s requirement;
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(5)
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to
perform its obligations pursuant to the Shareholders’ Voting Rights Proxy
Agreement, signed by and between XXXX Xxxxxxxx and Party B on 26 December
in Guangzhou, and not to violate the said
agreement;
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(6)
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not
to intervene Party B’s management over Opco in any form by making use of
shareholder’s power;
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(7)
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not
to entrust or grant their shareholders’ rights in Opco to a third party
other than Party B without Party B’s prior written
consent;
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(8)
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not
to otherwise entrust other third party other than Party B to manage Opco
in any form without Party B’s prior written
consent;
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(9)
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not
to terminate this Agreement unilaterally with for any reason whatsoever;
or
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(10)
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to
enjoy other rights and perform other obligations under the
Agreement.
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2.2 During
the term of this Agreement, Party B’s rights and obligations
include:
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(1)
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to
enjoy the full and exclusive right to manage Opco
independently;
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(2)
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to
enjoy the full and exclusive right to dispose of all assets of
Opco;
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(3)
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to
enjoy all profits and bear losses arising from Opco’s operations during
the Entrusted Period;
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(4)
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to
appoint all directors of
Opco;
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(5)
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to
appoint the legal representative, general manager, deputy general manager,
financial manager and other senior managerial personnel of
Opco;
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(6)
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to
convene shareholders’ meetings of Opco in accordance with the
Shareholders’ Voting Rights Proxy Agreement and sign resolutions of
shareholders’ meetings; and
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(7)
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to
enjoy other rights and perform other obligations under the
Agreement.
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Article
3 Representations and Warranties
The
Parties hereto hereby make the following representations and warranties to each
other as of the date of this Agreement that:
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(1)
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has
the right to enter into the Agreement and the ability to perform the
same;
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(2)
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the
execution and delivery of this Agreement by each party have been duly
authorized by all necessary corporate
action;
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(3)
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the
execution of this Agreement by the officer or representative of each party
has been duly authorized；
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(4)
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each
party has no other reasons that will prevent this Agreement from becoming
a binding and effective agreement between both parties after
execution;
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(5)
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the
execution and performance of the obligations under this Agreement will
not:
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(a) violate
any provision of the business license, articles of association or other similar
documents of its own;
(b) violate
any provision of the laws and regulations of PRC or other governmental or
regulatory authority or approval;
(c) violate
or result in a breach of any contract or agreement to which the party is a party
or by which it is bound.
Article
4 Effectiveness
This
Agreement shall take effect after it is duly executed by the authorized
representatives of the parties hereto with seals affixed.
Article
5 Liability for Breach of Agreement
During
the term of this Agreement, any violation of any provisions herein by either
party constitutes breach of contract and the breaching party shall compensate
the non-breaching party for the loss incurred as a result of this
breach.
Article
6 Force Majeure
The
failure of either party to perform all or part of the obligations under the
Agreement due to force majeure shall not be deemed as breach of contract. The
affected party shall present promptly valid evidence of such force majeure, and
the failure of performance shall be settled through consultations between the
parties hereto.
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Article
7 Governing Law
The
conclusion, validity, interpretation, and performance of this Agreement and the
settlement of any disputes arising out of this Agreement shall be governed by
the laws and regulations of the People’s Republic of China.
Article
8 Settlement of Dispute
Any
disputes under the Agreement shall be settled at first through friendly
consultation between the parties hereto. In case no settlement can be reached
through consultation, each party shall have the right to submit such disputes to
China International Economic and Trade Arbitration Commission in
Beijing. The Place of arbitration is Beijing. The arbitration award
shall be final and binding on both parties.
Article
9 Confidentiality
9.1 The
parties hereto agree to cause its employees or representatives who has access to
and knowledge of the terms and conditions of this Agreement to keep strict
confidentiality and not to disclose any of these terms and conditions to any
third party without the expressive requirements under law or request from
judicial authorities or governmental departments or the consent of the other
party, otherwise such party or personnel shall assume corresponding legal
liabilities.
9.2 The
obligations of confidentiality under Section 1 of this Article shall survive
after the termination of this Agreement.
Article
10 Severability
10.1 Any
provision of this Agreement that is invalid or unenforceable due to the laws and
regulations shall be ineffective without affecting in any way the remaining
provisions hereof.
10.2. In
the event of the foregoing paragraph, the parties hereto shall prepare
supplemental agreement as soon as possible to replace the invalid provision
through friendly consultation.
Article
11 Non-waiver of Rights
11.1 Any
failure or delay by any party in exercising its rights under this Agreement
shall not constitute a waiver of such right.
11.2 Any
failure of any party to demand the other party to perform its obligations under
this Agreement shall not be deemed as a waiver of its right to demand the other
party to perform such obligations later.
11.3 If a
party excuses the non-performance by other party of certain provisions under
this Agreement, such excuse shall not be deemed to excuse any future
non-performance by the other party of the same provision.
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Article
12 Non-transferability
Unless
otherwise specified under this Agreement, no party can assign or delegate any of
the rights or obligations under this Agreement to any third party nor can it
provide any guarantee to such third party or carry out other similar activities
without the prior written consent from the other party.
Article
13 Miscellaneous
13.1 Any
and all taxes arising from execution and performance of this Agreement and
during the course of the entrusted management and operation shall be borne by
the Parties respectively pursuant to the provisions of laws and
regulations.
13.2 Any
amendment entered into by the parties hereto after the effectiveness of this
Agreement shall be an integral part of this Agreement and have the same legal
effect as part of this Agreement. In case of any discrepancy between the
amendment and this Agreement, the amendment shall prevail. In case of several
amendments, the amendment with the latest date shall prevail.
13.3 This
Agreement is executed by Chinese and English in duplicate and both the English
version and Chinese version shall have the same effect. Each of the original
Chinese and English versions of this Agreement shall be executed in three
copies.
13.4 In
witness hereof, the Agreement is duly executed by the parties hereto on the date
first written above.
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(REMAINDER OF PAGE INTENTIONALLY LEFT
BLANK)
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(Page of
signature only)
Party
A: XXXX Xxxxxxxx
(signature):
Foshan
Nanhai Xx Xx Xxxx Sheng Aquatic Co., Ltd.
(official
seal)
Authorized
representative:
(signature)
Party
B:
Guangzhou
Flourishing Blessing Xxxx Xxxx Agricultural Technology Limited
(official
seal)
Authorized
representative:
(signature)
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