BUSINESS COOPERATION AGREEMENT
This
Business Cooperation Agreement (this “Agreement”) is dated
March 25, 2009, and is entered into in Beijing, China between Gold Rock
Resources Inc., a Nevada corporation (“Party A”), and
Beijing RainEarth Technology Co. Ltd., a company incorporated under the laws of
the PRC, located at Xx.0 XxxXxXxx, Xxxx, Xxxxxxxx Xxxxxxxx, Xxxxxxx, Xxxxx
100027 (“Party
B”).
RECITALS
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(1)
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Party
A is a company incorporated under the laws of the Nevada, which has the
expertise in the business of marketing, financing and business development
of Chinese entities.
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(2)
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Party
B is a company incorporated in Beijing, China, and is an emerging new
technology company, which has leading technology on the research and
development, manufacturing and application of Hollow Fiber Mambrane
Materials, especially in the medical industry in China (the
“Business”);
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(3)
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Party
A desires to provide marketing support, business support and related
consulting services and relevant services to Party B, for compensation,
and Party B agrees to accept such
services.
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(4)
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The
Parties are entering into this Agreement to set forth the terms and
conditions under which Party A shall provide services to Party
B.
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NOW THEREFORE, the Parties
agree as follows:
1. DEFINITIONS
1.1 In this
Agreement the following terms shall have the following meanings:
“Affiliate,” with
respect to any Person, shall mean any other Person that directly or indirectly
controls, or is under common control with, or is controlled by, such Person. As
used in this definition, “control” shall mean possession, directly or
indirectly, of power to direct or cause the direction of management or policies
(whether ownership of securities or partnership or other ownership interests, by
contract or otherwise).
“Consulting Services
Fee” shall be as defined in Clause 3.1.
“Indebtedness” shall
mean, as to any Person, without duplication, (i) all indebtedness (including
principal, interest, fees and charges) of such Person for borrowed money for the
deferred purchase price of property or services, (ii) the face amount of all
letters of credit issued for the amount of such Person and all drafts drawn
thereunder, (iii) all liabilities secured by any Lien on any property owned by
such person, whether or not such liabilities have been assumed by such Person,
(iv) the aggregate amount required to be capitalized under leases under which
such Person is the lessee and (v) all contingent obligations (including, without
limitation, all guarantees to third parties) of such Person.
“Lien” shall mean any
mortgage, pledge, hypothecation, assignment, deposit arrangement, encumbrance,
lien (statutory or other), preference, priority or other security agreement of
any kind or nature whatsoever (including, without limitation, any conditional
sale or other title retention agreement, any financing or similar statement or
notice filed under recording or notice statute, and any lease having
substantially the same effect as any of the foregoing).
“Person??shall mean
any individual, corporation, company, voluntary association, partnership, joint
venture, trust, unincorporated organization, entity or other organization or any
government body.
“PRC” means the
People’s Republic of China.
“Quarterly Date” shall
mean the last day of March, June, September and December in each year, the first
of which shall be the first such day following the date of this Agreement;
provided that if any such day is not a business day in the PRC, then such
Quarterly Date shall be the next succeeding business day in the
PRC.
“Services” means the
services to be provided under the Agreement by Party A to Party B, as more
specifically described in Clause 2; in this Agreement a reference to a Clause,
unless the context otherwise requires, is a reference to a clause of this
Agreement.
1.2 The
headings in this Agreement shall not affect the interpretation of this
Agreement.
2. RETENTION
AND SCOPE OF SERVICES
2.1 Party B
hereby agrees to retain the services of Party A, and Party A accepts such
appointment, to provide to Party B services in relation to the current and
proposed operations of Party B’s business in the PRC upon the terms and
conditions of this Agreement. The services subject to this Agreement shall
include, without limitation:
(a) General Business
Operation. Advice and assistance relating to development of marketing and
provision of consultancy services, particularly as related to the
Business.
(b) Human
Resources.
(i) Advice
and assistance in relation to the staffing of Party B, including assistance in
the recruitment, employment of management personnel, administrative personnel
and staff of Party B;
(ii) Training
of management, staff and administrative personnel;
(iii) Assistance
in the development of sound payroll administrative controls in Party
B;
(iv) Advice
and assistance in the relocation of management and staff of Party
B;
(v) Marketing
and other related advice;
(c) Research and
Development.
(i) Advice
and assistance in relation to research and development of Party B;
(ii) Advice
and assistance in strategic planning;
(d) Guaranty. Party
A shall take such action as may be reasonably required to raise up to RM 136
million ($ 20 million U.S.) of Party B's financial obligations; and
(e) Other. Such
other advice and assistance as may be agreed upon by the Parties.
2.2 Exclusive Services
Provider. During the term of this Agreement, Party A shall be the
exclusive provider of the Services. Party B shall not seek or accept similar
services from other providers unless the prior written approval is obtained from
Party A.
2.3 Intellectual Properties
Related to the Services. Party A shall own all intellectual property
rights developed or discovered through research and development, in the course
of providing Services, or derived from the provision of the Services. Such
intellectual property rights shall include patents, trademarks, trade names,
copyrights, patent application rights, copyright and trademark application
rights, research and technical documents and materials, and other related
intellectual property rights including the right to license or transfer such
intellectual properties. If Party B must utilize any intellectual property,
Party A agrees to grant an appropriate license to Party B on terms and
conditions to be set forth in a separate agreement.
3. PAYMENT
3.1 General.
(a) In
consideration of the Services provided by Party A hereunder, Party B shall pay
to Party A during the term of this Agreement a consulting services fee, equal to
60% of the quarterly revenues after deduction of direct operating costs,
expenses and taxes (the “Consulting Services Fee”). Party B shall pay the
Consulting Services Fee based on the quarterly financial statements provided
under Clause 5.1 below. Such quarterly payment shall be made within 15 days
after receipt by Party A of the financial statements referenced
above.
(b) Party B
will permit, from time to time during regular business hours as reasonably
requested by Party A, or its agents or representatives (including independent
public accountants, which may be Party B’s independent public accountants), (i)
to conduct periodic audits of books and records of Party B, (ii) to examine and
make copies of and abstracts from all books, records and documents (including,
without limitation, computer tapes and disks) in the possession or under the
control of Party B (iii) to visit the offices and properties of Party B for the
purpose of examining such materials described in clause (ii) above, and (iv) to
discuss matters relating to the performance by Party B hereunder with any of the
officers or employees of Party B having knowledge of such matters. Party A may
exercise the audit rights provided in the preceding sentence at any time,
provided that Party A provides ten (10) days written notice to Party B
specifying the scope, purpose and duration of such audit. All such audits shall
be conducted in such a manner as not to interfere with Party B’s normal
operations.
3.2 Party B
shall not be entitled to set off any amount it may claim is owed to it by Party
A against any Consulting Services Fee payable by Party B to Party A unless Party
B first obtains Party A’s written consent.
3.3 The
Consulting Services Fee shall be paid in RMB by wire transfer to a bank account
or accounts specified by Party A, as may be specified in writing from time to
time.
3.4 Should
Party B fail to pay all or any part of the Consulting Service’s Fee due to Party
A in RMB under this Clause 3 within the time limits stipulated, Party B shall
pay to Party A interest in RMB on the amount overdue based on the three (3)
month lending rate for RMB announced by the Bank of China on the relevant due
date.
3.5 All
payments to be made by Party B hereunder shall be made free and clear of and
without deduction for or on account of tax, unless Party B is required to make
such payment subject to the deduction or withholding of tax.
4. FURTHER
TERMS OF COOPERATION
4.1 All
business revenue of Party B shall be directed in full by Party B into a bank
account(s) directed by Party A.
5. UNDERTAKINGS
OF PARTY B
Party B
hereby agrees that, during the term of the Agreement:
5.1 Information
Covenants. Party B will furnish to Party A:
5.1.1 Monthly Reports.
Within ten (10) days after the end of each calendar month, a monthly report from
Party B on the financial situation such as income statements, balance sheet and
results of operations of Party B made up to and as at the end of such calendar
month and for the elapsed portion of the relevant financial year, setting forth
in each case in comparative form figures for the corresponding period in the
preceding financial year, in each case prepared in accordance with the PRC
generally accepted accounting principles, consistently applied.
5.1.2 Quarterly Reports. As
soon as available and in any event within thirty (30) days after each Quarterly
Date (as defined below), unaudited consolidated balance sheet, consolidated
statements of operations, statements of cash flows and changes in financial
situation of the Party B, for such quarterly period and for the period from the
beginning of the relevant fiscal year to such Quarterly Date, setting forth in
comparative form the corresponding consolidated figures for the corresponding
period in the preceding fiscal year.
5.1.3 Annual Reports.
Within six (6) weeks of the end of the financial year, the annual report of
Party B to which they relate (setting forth in each case in comparative form the
corresponding figures for the preceding financial year), in each case prepared
in accordance with, the PRC generally accepted accounting principles,
consistently applied.
5.1.4 Budgets. At least 45
days before the first day of each financial year of Party B, a budget in form
satisfactory to Party A (including budgeted statements of income and sources and
uses of cash and balance sheets) prepared by Party B for each of the four
financial quarters of such financial year.
5.1.5 Notice of Litigation.
Promptly, and in any event within one (1) business day after an officer of Party
B obtains knowledge thereof, notice of (i) any litigation or governmental
proceeding pending against Party B which could materially adversely affect the
business, operations, property, assets, condition (financial or otherwise) or
prospects of Party B and (ii) any other event which is likely to materially
adversely affect the business, operations, property, assets, condition
(financial or otherwise) or prospects of Party B.
5.1.6 Other Information.
From time to time, such other information or documents (financial or otherwise)
as Party A may reasonably request.
5.2 Books, Records and
Inspections. Party B will keep proper books of record and account in
which full, true and correct entries in conformity with generally accepted
accounting principles in the PRC. Party B will permit officers and designated
representatives of Party A to visit and inspect, under guidance of officers of
Party B, any of the properties of Party B, and to examine the books of record
and account of Party B and discuss the matters, finances and accounts of Party B
with, and be advised as to the same by, its and their officers, all at such
reasonable times and intervals and to such reasonable extent as Party A may
request.
5.3 Compliance with Statutes,
etc. Party B will comply with all applicable statutes, regulations and
orders of, and all applicable restrictions imposed by, all governmental bodies,
in respect of the conduct of its business and the ownership of its property,
including without limitation, maintenance of valid and proper government
approvals and licenses necessary to provide the services, except that such non_
compliances could not, in the aggregate, have a material adverse effect on the
business, operations, property, assets, condition (financial or otherwise) or
prospects of Party B.
6. NEGATIVE
COVENANTS
Party B
covenants and agrees that, during the term of this Agreement, without the prior
written consent of Party A.
6.1 Equity. Party B will
not issue, purchase or redeem any equity or debt securities of Party
B.
6.2 Liens. Party B will
not create, incur, assume or suffer to exist any Lien upon or with respect to
any property or assets (real or personal, tangible or intangible) of Party B
whether now owned or hereafter acquired, provided that the provisions of this
Clause 6.2 shall not prevent the creation, incurrence, assumption or existence
of:
6.2.1 Liens for
taxes not yet due, or Liens for taxes being contested in good faith and by
appropriate proceedings for which adequate reserves have been established;
and
6.2.2 Liens in
respect of property or assets of Party B imposed by law, which were incurred in
the ordinary course of business, and (x) which do not in the aggregate
materially detract from the value of such property or assets or materially
impair the use thereof in the operation of the business of Party B or (y) which
are being contested in good faith by appropriate proceedings, which proceedings
have the effect of preventing the forfeiture or sale of the property of assets
subject to any such Lien.
6.3 Consolidation, Merger, Sale
of Assets, etc. Party B will not wind up, liquidate or dissolve its
affairs or enter into any transaction of merger or consolidation, or convey,
sell, lease or otherwise dispose of (or agree to do any of the foregoing at any
future time) all or any part of its property or assets, or purchase or otherwise
acquire (in one or a series of related transactions) any part of the property or
assets (other than purchases or other acquisitions of inventory, materials and
equipment in the ordinary course of business) of any Person, except that (i)
Party B may make sales of inventory in the ordinary course of business and (ii)
Party B may, in the ordinary course of business, sell equipment which is
uneconomic or obsolete.
6.4 Dividends. Party B
will not declare or pay any dividends, or return any capital, to its
shareholders or authorize or make any other distribution, payment or delivery of
property or cash to its shareholders as such, or redeem, retire, purchase or
otherwise acquire, directly or indirectly, for a consideration, any shares of
any class of its capital stock now or hereafter outstanding (or any options or
warrants issued by Party B with respect to its capital stock), or set aside any
funds for any of the foregoing purposes.
6.5 Leases. Party B will
not permit the aggregate payments (including, without limitation, any property
taxes paid as additional rent or lease payments) by Party B under agreements to
rent or lease any real or personal property to exceed US $120,000 in any fiscal
year of Party B.
6.6 Indebtedness. Party B
will not contract, create, incur, assume or suffer to exist any indebtedness,
except accrued expenses and current trade accounts payable incurred in the
ordinary course of business, and obligations under trade letters of credit
incurred by Party B in the ordinary course of business, which are to be repaid
in full not more than one (1) year after the date on which such indebtedness is
originally incurred to finance the purchase of goods by Party B.
6.7 Advances, Investment and
Loans. Party B will not lend money or credit or make advances to any
Person, or purchase or acquire any stock, obligations or securities of, or any
other interest in, or make any capital contribution to, any other Person, except
that Party A may acquire and hold receivables owing to it, if created or
acquired in the ordinary course of business and payable or dischargeable in
accordance with customary trade terms.
6.8 Transactions with
Affiliates. Party B will not enter into any transaction or series of
related transactions, whether or not in the ordinary course of business, with
any Affiliate of Party B, other than on terms and conditions substantially as
favorable to Party B as would be obtainable by Party B at the time in a
comparable arm’s-length transaction with a Person other than an Affiliate and
with the prior written consent of Party A.
6.9 Capital Expenditures.
Party B will not make any expenditure for fixed or capital assets (including,
without limitation, expenditures for maintenance and repairs which should be
capitalized in accordance with generally accepted accounting principles in the
PRC or in the United States) in excess of US $10,000, without the prior written
consent of Party A.
6.10 Modifications to Debt
Arrangements, Agreements or Articles of Association. Party B will not (i)
make any voluntary or optional payment or prepayment on or redemption or
acquisition for value of (including, without limitation, by way of depositing
with the trustee with respect thereto money or securities before due for the
purpose of paying when due) any existing Indebtedness or (ii) amend or modify,
or permit the amendment or modification of, any provision of any existing
Indebtedness or of any agreement (including, without limitation, any purchase
agreement, indenture, loan agreement or security agreement) relating to any of
the foregoing or (iii) amend, modify or change its Articles of Association or
Business License, or any agreement entered into by it, with respect to its
capital stock, or enter into any new agreement with respect to its capital
stock.
6.11 Line of Business.
Party B will not engage (directly or indirectly) in any business other than
those types of Business except with the prior written consent of Party
A.
7. TERM AND
TERMINATION
7.1 This
Agreement shall take effect on the date of execution of this Agreement and shall
remain in full force and effect unless terminated pursuant to Clause 7.2 for a
period of 20 years.
7.2 This
Agreement may be terminated:
7.2.1 by either
Party giving written notice to the other Party if the other Party has committed
a material breach of this Agreement (including but not limited to the failure by
Party B to pay the Consulting Services Fee) and such breach, if capable of
remedy, has not been so remedied within, in the case of breach of a
non-financial obligation, 30 days, following receipt of such written
notice;
7.2.2 either
Party giving written notice to the other Party if the other Party becomes
bankrupt or is the subject of proceedings or arrangements for liquidation or
dissolution or ceases to carry on business or becomes unable to pay its debts as
they come due;
7.2.3 by either
Party giving written notice to the other Party if, for any reason, the
operations of Party A are terminated;
7.2.4 by either
Party giving written notice to the other Party if the business license or any
other license or approval material for the business operations of Party B is
terminated, cancelled or revoked; or
7.2.5 by
election of Party A with or without reason.
7.3 Any Party
electing properly to terminate this Agreement pursuant to Clause 7.2 shall have
no liability to the other Party for indemnity, compensation or damages arising
solely from the exercise of such right. The expiration or termination of this
Agreement shall not affect the continuing liability of Party B to pay any
Consulting Services Fees already accrued or due and payable to Party A. Upon
expiration or termination of this Agreement, all amounts then due and unpaid to
Party A by Party B hereunder, as well as all other amounts accrued but not yet
payable to Party A by Party B, shall forthwith become due and payable by Party B
to Party A.
8. PARTY A’S
REMEDY UPON PARTY B’S BREACH
In
addition to the remedies provided elsewhere under this Agreement, Party A shall
be entitled to remedies permitted under PRC laws, including without limitation,
compensation for any direct and indirect losses arising from the breach and
legal fees incurred to recover losses from such breach.
9. AGENCY
The
Parties are independent contractors, and nothing in this Agreement shall be
construed to constitute either Party to be the agent, Partner, legal
representative, attorney or employee of the other for any purpose whatsoever.
Neither Party shall have the power or authority to bind the other except as
specifically set out in this Agreement.
10. GOVERNING
LAW AND JURISDICTION
10.1 Governing Law. This
Agreement shall be governed by, and construed in accordance with, the laws of
the PRC.
11. ASSIGNMENT
No part
of this Agreement shall be assigned or transferred by Party B without the prior
written consent of Party A. Any such assignment or transfer shall be void. Party
A, however, may assign its rights and obligations.
12. NOTICES
Notices
or other communications required to be given by any party pursuant to this
Agreement shall be written in English and Chinese and delivered personally or
sent by registered mail or postage prepaid mail or by a recognized courier
service or by facsimile transmission to the address of each relevant party or
both parties set forth below or other address of the party or of the other
addressees specified by such party from time to time. The date when the notice
is deemed to be duly served shall be determined as follows: (a) a notice
delivered personally is deemed duly served upon the delivery; (b) a notice sent
by mail is deemed duly served the tenth (10th) day
after the date when the air registered mail with postage prepaid has been sent
out (as is shown on the postmark), or the fourth (4th) day
after the delivery date to the internationally recognized courier service
agency; and (c) a notice sent by facsimile transmission is deemed duly served
upon the receipt time as is shown on the transmission confirmation of relevant
documents.
Party
A: Gold
Rock Resources Inc.
Address: 5a-56,
Xx.00 Xxxxxxxx, Xxxx Xxxxxx
Xxxxxxxx
Xxxxxxxx,
Xxxxxxx, Xxxxx
101100
Party
B: Beijing
RainEarth Technology Co. Ltd.
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Address:
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Xx.0 XxxXxXxx Xxxx, Xxxxxxxx
Xxxxxxxx
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Xxxxxxx, Xxxxx
100027
13. GENERAL
13.1 The
failure to exercise or delay in exercising a right or remedy under this
Agreement shall not constitute a waiver of the right or remedy or waiver of any
other rights or remedies and no single or partial exercise of any right or
remedy under this Agreement shall prevent any further exercise of the right or
remedy or the exercise of any other right or remedy.
13.2 Should
any clause or any part of any Clause contained in this Agreement be declared
invalid or unenforceable for any reason whatsoever, all other clauses or parts
of clauses contained in this Agreement shall remain in full force and
effect.
13.3 This
Agreement constitutes the entire agreement between the Parties relating to the
subject matter of this Agreement and supersedes all previous
agreements.
13.4 No
amendment or variation of this Agreement shall be valid unless it is in writing
and signed by or on behalf of each of the Parties.
13.5 This
Agreement shall be executed in two originals in Chinese. This Agreement has both
an English version and a Chinese version. Both versions are equally authentic.
Where a comparison of the authentic texts of both versions of this Agreement
renders a difference in meaning, the meaning which best reconciles the texts,
having regard to the object and purpose of this Agreement shall be
adopted.
SIGNATURE
PAGE
IN WITNESS WHEREOF, both
parties hereto have caused this Business Cooperation Agreement to be duly
executed by their legal representatives and duly authorized representatives on
their behalf as of the date first set forth above.
PARTY
A: Gold
Rock Resources Inc.
By:
Name: Zhu,
YongFu
Title: President
PARTY
B: Beijing
RainEarth Technology Co. Ltd.
By:
Name: Xxxxx,
Xxx
Title: President
