ex102.htm



Exhibit 10.2


 


EXCLUSIVE MANAGEMENT CONSULTING SERVICES AGREEMENT


 


This EXCLUSIVE MANAGEMENT CONSULTING SERVICES AGREEMENT (“Agreement”) is entered into as of September 30, 2010 (the “Effective Date”), by and between the following (each a “Party” and together the “Parties”):


 



	
(i)   

	
Zi Bo Costar Information Consulting Co., Ltd. (淄博科先达信息咨询有限公司), a wholly foreign-owned enterprise existing under the laws of the People’s Republic of China (“WFOE”), with its registered office at [ ], People’s Republic of China;







 



	
(ii)   

	
Zi Bo Jia Zhou Chemicals Co., Ltd. (淄博嘉周化工有限公司), a limited liability company existing under the laws of the Peoples’ Republic of China (“Jia Zhou”) , with its registered office at 1, Electric Power Road, Zhou Cun District, Zi Bo, People’s Republic of China;







 



	
(iii)  

	
Lu Feng (卢锋), an individual citizen of the People’s Republic of China, with Identity Card No. [                                 ];







 



	
(iv)  

	
Lu Ling Liang(卢令良), an individual citizen of the People’s Republic of China, with Identity Card No. [                                    ];







 



	
(v)  

	
Zhang Meng (张盟) an individual citizen of the People’s Republic of China, with Identity Card No. [                           ];and







 



	
(vi)  

	
YLL Investment Group Limited, a company incorporated and registered under the laws of Hong Kong, with its registered office at [                                                        ].







 


Capitalized terms not otherwise defined have the meanings assigned to them in Appendix A to this Agreement, which is incorporated and made a part hereof by reference.


 


RECITALS


 


This Agreement is entered into with reference to the following facts:


 


A.           WFOE is a wholly-foreign owned enterprise duly incorporated and existing under the laws of the Peoples’ Republic of China (“PRC” or “China”), owned 100% by Gold Champ Consultants Limited, a company existing under the laws of Hong Kong. WFOE has executive and financial management experience and capability relevant to businesses engaged in chemical production, including the construction of chemical facilities.


 


B.           Jia Zhou is a PRC limited liability company owned by Lu Feng (卢锋), Lu Ling Liang(卢令良), Zhang Meng (张盟) and YLL Investment Group Limited (each a “Shareholder” and together, the “Shareholders”). Jia Zhou holds licenses necessary for the production of phthalic anhydride and maleic anhydride. The business in which Jia Zhou is now and may in the future become involved is referred to as the “Business.”


 




  





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NOW, THEREFORE, in consideration for the mutual covenants and promises contained herein, and for other good and valuable consideration, the receipt and sufficiency of which is acknowledged by the Parties, and through friendly consultation, under the principle of equality and mutual benefits, in accordance with the relevant laws and regulations of the People's Republic of China, the Parties agree as follows:


 


AGREEMENT


 



	
1.  

	
Management Services.   During the Term of this Agreement, WFOE will identify and provide to Jia Zhou executive and financial management personnel in sufficient numbers and with expertise and experience appropriate to provide the services identified in Appendix B (the “Management Services”), under the supervision and authority of the board of directors of Jia Zhou acting in accordance with the terms of this Agreement.







 



	
2.  

	
Compensation to WFOE.  In consideration for providing the Management Services, WFOE will be entitled to receive service fee calculated at the amount equivalent to fifty percent (50%) of the Net Profit of Jia Zhou during the Term of this Agreement. The Net Profit of Jia Zhou will be calculated and paid by Jia Zhou to WFOE no later than the last day of the month following the end of each calendar quarter, commencing on September 30, 2010. Any dispute between the Parties concerning any calculation or payment under this Section 1 will be resolved pursuant to the dispute resolution provisions of Section 15.







 



	
3.  

	
Provision of Funds to Jia Zhou.   WFOE promises to provide funds for operations or assist Jia Zhou in securing other sources of funding. If Jia Zhou’s operations result in a loss for the year, the WFOE agrees to cover the loss on a cumulative basis and to offset all accumulated losses from the amount of Net Profits payable to the WFOE by Jia Zhou before Jia Zhou need to make any distribution of the Net Profits to the WFOE hereunder.







 



	
4.  

	
Interest Penalty.   If any amounts due and payable under this Agreement are not paid when due, interest will accumulate on such amounts at the rate of four percent (4%) per annum until paid. This interest penalty may be reduced or waived by the Party entitled to receive it in light of actual circumstances, including the reason for any delay in payment.







 



	
5.  

	
Operation of Business.   During the Term of this Agreement:







 



	
(a)  

	
The Parties will ensure that:







 



	
(i)  

	
the business of Jia Zhou, together with all business opportunities presented to or which become available to Jia Zhou, will be treated as part of the Business covered by the Management Services and this Agreement;







 



	
(ii)  

	
all cash of Jia Zhou will be maintained in Company Bank Accounts or disposed of in accordance with this Agreement;







 



	
(iii)  

	
all business income, working capital, recovered accounts receivable, and any other funds which come into the possession of Jia Zhou or are derived from or related to the operation of the business of Jia Zhou, are deposited into a Company Bank Account;







 


 




  





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(iv)  

	
all accounts payable, employee compensation and other employment-related expenses, and any payments in connection with the acquisition of any assets for the benefit of Jia Zhou or the satisfaction of any liabilities of Jia Zhou, are paid from amounts maintained in Company Bank Accounts; and







 



	
(v)  

	
no action is taken without the prior written consent of WFOE that would have the effect of entrusting all or any part of the business of Jia Zhou to any other Person.







 



	
(b)  

	
WFOE will ensure that:







 



	
(i)  

	
it advises Jia Zhou with respect to the conduct of the Business the same level of care it exercises with respect to the operation of its own business and will at all times act in accordance with its Reasonable Business Judgment, including taking no action which it knows, or in the exercise of its Reasonable Business Judgment should have known, would materially adversely affect the status of any of permits, licenses and approvals necessary for the conduct of the Business or constitute a violation of applicable PRC laws and regulations; and







 



	
(ii)  

	
subject to the provisions of Section 8 with respect to the Transition, it will preserve intact the business and operations of Jia Zhou and take no action which it knows, or in the exercise of its Reasonable Business Judgment should have known, would materially adversely affect the business, operations, or prospects of Jia Zhou.







 



	
(c)  

	
The Shareholders will:







 



	
(i)  

	
ensure that none of them, nor any of their agents or representatives, takes any action that interferes with, or has the effect of interfering with, the operation of the Business in accordance with this Agreement, or which materially adversely affects the assets, operations, business or prospects of Jia Zhou;







 



	
(ii)  

	
use their Best Efforts to cooperate and assist WFOE and Jia Zhou to maintain in effect all permits, licenses and other authorizations and approvals necessary or appropriate to the conduct of the business of Jia Zhou; and







 



	
(iii)  

	
use their Best Efforts to assist WFOE and Jia Zhou to maintain positive and productive relations with relevant Governmental Authorities and their representatives.







 



	
6.  

	
Material Actions.   The Parties acknowledge and agree that the economic risk of the operation of the Business is being substantially assumed by WFOE and that the continued business success of Jia Zhou is necessary to permit the Parties to realize the benefits of this Agreement and the other Business Cooperation Agreements. During the Term of this Agreement, the Parties therefore will ensure that Jia Zhou does not take any Material Action without the advance written consent of WFOE, which consent will not be unreasonably withheld or delayed.







 



	
7.  

	
Right of First Refusal.   If any Shareholder proposes to Transfer to any other Person other than another Shareholder (the “Proposed Transferee”) all or any portion of the equity of Jia Zhou held by the that  Shareholder (the “Selling Shareholder”), the Selling Shareholder will first deliver to WFOE a written notice (the “Notice”) offering to WFOE or its designee(s) all of the equity proposed to be Transferred by the Shareholder, on terms and conditions no less favorable to WFOE than those offered to the Proposed Transferee. The Notice will include all relevant terms of the Proposed Transfer, and will be irrevocable for a period of thirty (30) calendar days after its receipt by WFOE.  WFOE will have the right and option, by written notice delivered within thirty (30) calendar days after receipt of the Notice, to notify the Shareholder in writing of its acceptance of all or any part of the equity so offered in the Notice, at the purchase price and on the terms stated in the Notice. If WFOE so accepts the offer contained in the Notice, then the equity of Jia Zhou proposed to be transferred will be transferred to WFOE at the purchase price and on the terms stated in the Notice.







 


 




  





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8.  

	
Transition of Business to WFOE.   At the sole discretion of WFOE, during the Term of this Agreement, WFOE may transfer from Jia Zhou to WFOE or any other affiliates designated by the WFOE (the “Transferee”) any part or all of the business, personnel, assets and operations of Jia Zhou which may be lawfully conducted, employed, owned or operated by WFOE (the “Transition”), including any of the following:







 



	
(a)  

	
business opportunities presented to, or available to Jia Zhou may be pursued and contracted for in the name of the Transferee rather than Jia Zhou, and at its discretion the Transferee may employ the resources of Jia Zhou to secure such opportunities;







 



	
(b)  

	
any tangible or intangible property of Jia Zhou, any contractual rights, any personnel, and any other items or things of value held by Jia Zhou may be transferred to the Transferee at book value;







 



	
(c)  

	
real property, personal or intangible property, personnel, services, equipment, supplies  and any other items useful for the conduct of the Business may be obtained by the Transferee by acquisition, lease, license or otherwise, and made available to Jia Zhou on terms to be determined by agreement between the Transferee and Jia Zhou; and







 



	
(d)  

	
contracts entered into in the name of Jia Zhou may be transferred to the Transferee, or the work under such contracts may be subcontracted, in whole or in part, to the Transferee, on terms to be determined by agreement between the Transferee and Jia Zhou;







 


provided, however, that none of the foregoing, and no other part of the Transition may cause or have the effect of terminating (without being substantially replaced under the name of the Transferee) or adversely affecting any license, permit or regulatory status of Jia Zhou.


 



	
9.  

	
Ownership of Intellectual Property.   All Intellectual Property created by WFOE in the course of providing the Services will be the sole property of WFOE and Jia Zhou will have no right to any ownership or use of such Intellectual Property except under separate written agreement with WFOE.







 



	
10.  

	
Representations and Warranties of Jia Zhou.  Jia Zhou hereby makes the following representations and warranties for the benefit of WFOE:







 



	
(a)  

	
Corporate Existence and Power.  Jia Zhou is a limited liability company duly organized and validly existing under the laws of the PRC, and has all corporate powers and all governmental licenses, authorizations, consents and approvals required to carry on its business as now conducted and as currently contemplated to be conducted and as currently contemplated to be conducted.  Jia Zhou has never approved, or commenced any proceeding or made any election contemplating, the dissolution or liquidation of Jia Zhou or the winding up or cessation of the business or affairs of Jia Zhou.







 


 




  





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(b)  

	
Authorization; No Consent.   Jia Zhou  has taken all necessary corporate actions to authorize its execution, delivery and performance of this Agreement and all related documents and has the corporate power and authorization to execute, deliver and perform this Agreement and the other related documents;  has the absolute and unrestricted right, power, authority, and capacity to execute and deliver this Agreement and the other related documents and to perform their obligations under this Agreement and the other related documents;  is not required to give any notice to or obtain any Consent from any Person in connection with the execution and delivery of this Agreement or the consummation or performance of any of the exclusive cooperation arrangement contemplated under this Agreement except for any notices that have been duly given or consents that have been duly obtained; and  holds all the governmental authorizations necessary to permit Jia Zhou to lawfully conduct and operate its business in the manner it currently conducts and operates such business and to permit Jia Zhou to own and use its assets in the manner in which it currently owns and uses such assets. To the best knowledge of Jia Zhou, there is no basis for any governmental authority to withdraw, cancel or cease in any manner any of such governmental authorizations.







 



	
(c)  

	
No Conflicts. The execution and perform of this Agreement by Jia Zhou will not contravene, conflict with, or result in violation of  any provision of the organizational documents of Jia Zhou;  resolution adopted by the board of directors or the shareholders of Jia Zhou; and  any laws and regulations to which Jia Zhou or the exclusive cooperation arrangement contemplated in this Agreement is subject.







 



	
11.  

	
Representations and Warranties of WFOE.  WFOE hereby makes the following representations and warranties for the benefit of Jia Zhou and the Shareholders:







 



	
(a)  

	
Corporate Existence and Power.  WFOE  is a foreign invested company duly organized and validly existing under the laws of the PRC, and has all corporate powers and all governmental licenses, authorizations, consents and approvals required to carry on its business as now conducted and as currently contemplated to be conducted and as currently contemplated to be conducted; and  has not ever approved, or commenced any proceeding or made any election contemplating, the dissolution or liquidation of WFOE or the winding up or cessation of the business or affairs of WFOE.







 



	
(b)  

	
Authorization; No Consent.   WFOE  has taken all necessary corporate actions to authorize its execution, delivery and performance of this Agreement and all related documents and has the corporate power and authorization to execute, deliver and perform this Agreement and the other related documents;  has the absolute and unrestricted right, power, authority, and capacity to execute and deliver this Agreement and the other related documents and to perform its obligations under this Agreement and the other related documents;  is not required to give any notice to or obtain any Consent from any Person in connection with the execution and delivery of this Agreement or the consummation or performance of any of the exclusive cooperation arrangement contemplated under this Agreement except for any notices that have been duly given or consents that have been duly obtained; and   has all the governmental authorizations necessary to permit WFOE to lawfully conduct and operate its business in the manner it currently conducts and operates such business and to permit WFOE to own and use its assets in the manner in which it currently owns and uses such assets. To the best knowledge of WFOE, there is no basis for any governmental authority to withdraw, cancel or cease in any manner any of such governmental authorizations.







 



	
(c)  

	
No Conflicts.   The execution and perform of this Agreement by WFOE will not contravene, conflict with, or result in violation of  any provision of the organizational documents of WFOE;  any resolution adopted by the board of directors or the shareholders of WFOE; and  any laws and regulations to which WFOE or the exclusive cooperation arrangement contemplated in this Agreement is subject to.







 


 




  





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12.  

	
Liability for Breach; Indemnification and Hold Harmless.  Each of the Parties will be liable to each of the other Parties for any damage or loss caused by such Party’s breach of this Agreement. Jia Zhou will indemnify and hold harmless WFOE from and against any claims, losses or damages unless caused by a breach by WFOE of its obligations under this Agreement or by the willful, reckless or illegal conduct of WFOE. WFOE will indemnify and hold harmless Jia Zhou and the Shareholders from and against any claims, losses or damages caused by any breach by WFOE of its obligations under this Agreement or by the willful, reckless or illegal conduct of WFOE.







 



	
13.  

	
Liquidated Damages.   Jia Zhou and the Shareholders acknowledge and agree that WFOE will be incurring significant expense in order to fulfill its obligations under this Agreement. Jia Zhou and the Shareholders further acknowledge that breach of this Agreement by any of them would cause WFOE and WFOE’s stockholders significant damages and perhaps the complete cessation of WFOE’s business. Since the exact amount of such damages would be extremely difficult, if not impossible to calculate, Jia Zhou and the Shareholders agree that in the event of the material breach by any of them of this Agreement, which breach has not been cured within sixty (60) days of receipt of notice from WFOE of such material breach and a description of such breach, Jia Zhou and the Shareholders, jointly and severally, will be obligated to pay to WFOE liquidated damages in an amount equal to the greater of (a) the annualized revenues of WFOE for the last completed fiscal year, or (b) US$5 million.







 



	
14.  

	
Shareholders’ Guarantee.   The Shareholders hereby irrevocably and unconditionally guarantee the payment and performance of Jia Zhou’s obligations under this Agreement, including without limitation Section 15 of this Agreement, and under and each of the other Business Cooperation Agreements. As security for such guarantee, the Shareholders hereby pledge all right, title and interest to the equity of Jia Zhou to WFOE to guarantee Jia Zhou’s payment and performance hereunder and under the other Business Cooperation Agreements. In the event Jia Zhou fails to fully pay the liquidated damages specified under Section 13, in addition to any rights and remedies available herein or under applicable laws, WFOE (or any its designee) may at its election take control of, transfer, auction or otherwise dispose of any or all of such pledged securities without prior consent of any party, subject to the restriction or prohibition under any applicable laws, in order to satisfy any outstanding obligations. For the avoidance of doubt, the Shareholders have each executed a separate Equity Pledge Agreement in the form attached as Appendix D, dated as of even date herewith.







 



	
15.  

	
Dispute Resolution.







 



	
(a)  

	
Friendly Consultations.   Any and all disputes, controversies or claims arising out of or relating to the interpretation or implementation of this Agreement, or the breach hereof or relationships created hereby, will be settled through friendly consultations.







 



	
(b)  

	
Arbitration.   If any such dispute is not resolved through friendly consultations within sixty (60) days from the date a Party gives the other Parties written notice of a dispute, then it will be resolved exclusively by arbitration under the auspices of and in accordance with the Arbitration Rules of China International Economic and Trade Arbitration Commission (“CIETAC”) and will be submitted to CIETAC Shanghai Branch. Any arbitration will be heard before three (3) arbitrators, one (1) of whom will be appointed by WFOE, one (1) of whom will be appointed by TPS Jia Zhou and the Shareholders acting together, and the remaining one (1) arbitrator (chairman of the arbitration tribunal) will be appointed by the Director of CIETAC.  Any arbitration will be conducted in both the English and Chinese languages.  The arbitration award will be final and binding on both Parties and will not be subject to any appeal, and the Parties agree to be bound thereby and to act accordingly.







 



	
(c)  

	
Continuation of Agreement.   It is not necessary for any Party to declare a breach of this Agreement in order to proceed with the dispute resolution process set out in this Section 15. Unless and until this Agreement is terminated pursuant to Section 16, this Agreement will continue in effect during the pendency of any discussions or arbitration under this Section 15.







 




  





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16.  

	
Term. This Agreement is effective as of the date first set forth above, and will continue in effect for a period of thirty (30) years or until terminated by one of the following means. The period during which this Agreement is effective is referred to as the “Term.”







 



	
(a)  

	
Mutual Consent.   This Agreement may be terminated at any time by the mutual consent of the Parties, evidenced by an agreement in writing signed by all Parties.







 



	
(b)  

	
Breach or Insolvency.   Either of Jia Zhou or WFOE may terminate this Agreement immediately (a) upon the material breach by the other of its obligations hereunder and the failure of such Party to cure such breach within thirty (30) working days after written notice from the non-breaching Party; or (b) upon the filing of a voluntary or involuntary petition in bankruptcy by the other or of which the other is the subject, or the insolvency of the other, or the commencement of any proceedings placing the other in receivership, or of any assignment by the other for the benefit of creditors.







 



	
(c)  

	
Termination by WFOE.   This Agreement may be terminated at any time by WFOE upon ninety (90) calendar days’ written notice delivered to all other Parties.







 



	
(d)  

	
Survival.   The provisions of Section 12 (Indemnification; Hold Harmless); Section 13 (Liquidated Damages), Section 14 (Shareholders’ Guarantee), Section 15 (Dispute Resolution) and Section 17 (Miscellaneous) will survive any termination of this Agreement. Any amounts owing from any Party to any other Party on the effective date of any termination under the terms of this Agreement will continue to be due and owing despite such termination.







 



	
17.  

	
Miscellaneous.







 



	
(a)  

	
Headings and Gender.   The headings of Sections in this Agreement are provided for convenience only and will not affect its construction or interpretation. All references to “Section” or “Sections” refer to the corresponding Section or Sections of this Agreement. All words used in this Agreement will be construed to be of such gender or number as the circumstances require. Unless otherwise expressly provided, the word “including” does not limit the preceding words or terms.







 



	
(b)  

	
Usage.  The words “include” and “including” will be read to include “without limitation.”







 




  





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(c)  

	
Severability.   Whenever possible each provision and term of this Agreement will be interpreted in a manner to be effective and valid but if any provision or term of this Agreement is held to be prohibited by or invalid, then such provision or term will be ineffective only to the extent of such prohibition or invalidity, without invalidating or affecting in any manner whatsoever the remainder of such provision or term or the remaining provisions or terms of this Agreement. If any of the covenants set forth in this Agreement are held to be unreasonable, arbitrary, or against public policy, such covenants will be considered divisible with respect to scope, time and geographic area, and in such lesser scope, time and geographic area, will be effective, binding and enforceable against the Shareholders.







 



	
(d)  

	
Waiver.   No failure or delay by any Party to exercise any right, power or remedy under this Agreement will operate as a waiver of any such right, power or remedy.







 



	
(e)  

	
Integration. This Agreement and the other Business Cooperation Agreements supersede any and all prior discussions and agreements (written or oral) between the Parties with respect to the exclusive cooperation arrangement and other matters contained herein.







 



	
(f)  

	
Assignments, Successors, and No Third-Party Rights.   No Party may assign any of its rights under this Agreement without the prior consent of the other Parties, which will not be unreasonably withheld. Subject to the preceding sentence, this Agreement will apply to, be binding in all respects upon, and inure to the benefit of the successors and permitted assigns of the Parties. Nothing expressed or referred to in this Agreement will be construed to give any Person other than the Parties to this Agreement any legal or equitable right, remedy, or claim under or with respect to this Agreement or any provision of this Agreement. This Agreement and all of its provisions and conditions are for the sole and exclusive benefit of the Parties to this Agreement and their successors and assigns.







 



	
(g)  

	
Notices.   All notices, requests, demands, claims, and other communications under this Agreement will be in writing. Any Party may send any notice, request, demand, claim, or other communication under this Agreement to the intended recipient at the address set forth on the signature page of this Agreement by any means (including personal delivery, expedited courier, messenger service, telecopy, telex, ordinary mail, or electronic mail), but no such notice, request, demand, claim, or other communication will be deemed to have been duly given unless and until it actually is received by the intended recipient. Refusal by a Party to accept notice that is validly given under this Agreement will be deemed to have been received by such Party upon receipt. Any Party may change the address to which notices, requests, demands, claims, and other communications under this Agreement are to be delivered by giving the other Parties notice in the manner herein set forth. Any notice, request, demand, claim, or other communication under this Agreement will be addressed to the intended recipient as set forth on the signature page hereto.







 



	
(h)  

	
Further Assurances. Each of the Parties will use its best efforts to take all action and to do all things necessary, proper, or advisable in order to consummate and make effective the transactions contemplated by this Agreement.







 



	
(i)  

	
Governing Law. This Agreement will be construed, and the rights and obligations under this Agreement determined, in accordance with the laws of the PRC, without regard to the principles of conflict of laws thereunder.







 



	
(j)  

	
Amendment. This Agreement may not be amended, altered or modified except by a subsequent written document signed by all Parties.







 



	
(k)  

	
Counterparts. This Agreement may be executed in any number of counterparts. When each Party has signed and delivered to all other Parties at least one such counterpart, each of the counterparts will constitute one and the same instrument.







 


 


[Signature Page Follows]


 




  





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IN WITNESS WHEREOF, the Parties have execute this Management Services Agreement as of the date first above written.


 




	
Jia Zhou:


 


Zi Bo Jia Chemicals Co. Ltd.

	 	 	
WFOE:


 


Zi Bo Costar Information Consulting Co.,

	 
	 	 	 	 	 	 	 
	 	 	 	 	 	 	 
	By: 	
/s/ Lu Feng

	 	 	By: 	
/s/ Ma Dan Ni

	 
	 	
Lu Feng

	 	 	 	
Ma Dan Ni

	 
	 	
Legal Representative

	 	 	 	
Legal Representative

	 
	 	 	 	 	 	 	 
	
Address:


 


1, Electric Power Road, Zhou Cun District, Zi Bo, People's Republic of China

	 	 	
Address:


 


1, Electric Power Road, Zhou Cun District, Zi Bo, People's Republic of China

	 







 


 


The SHAREHOLDERS:


 




	
 

	 	
 

	 	
 


	 	 	 	 	 
	
/s/ Lu Feng

	 	
 

	 	
 


	
Lu Feng

	 	 	 	 
	 	 	 	 	 
	
/s/ Lu Ling Liang

	 	
 

	 	
 


	
Lu Ling Liang

	 	 	 	 
	 	 	 	 	 
	
/s/ Zhang Meng

	 	
 

	 	
 


	
Zhang Meng

	 	 	 	 
	 	 	 	 	 
	/s/	 	 	 	 
	
[ ] on behalf of YLL Investment Group Limited


Position:


Address:

	 	 	 	 







                                                                         


 




  





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APPENDIX A




 


Definitions


 


For purposes of that certain Exclusive Management Consulting Services Agreement between and among Zi Bo Costar Information Consulting Co., Ltd., Zi Bo Chemicals Co., Ltd. (淄博嘉周化工有限公司), Lu Feng(卢锋), Lu Ling Liang(卢令良), Zhang Meng(张盟) and YLL INVESTMENT GROUP LIMITED dated as of September 30, 2010, to which this is Appendix A, the following terms have the meanings set forth below:


 


“Best Efforts” means the efforts that a prudent Person desiring to achieve a particular result would use in order to ensure that such result is achieved as expeditiously as possible.


 


“Business” is defined in the Recitals.


 


“Business Cooperation Agreements” means the following agreements between the Parties and/or their affiliates:  the Exclusive Management Consulting Services Agreement between and among Zi Bo Costar Information Consulting Co., Ltd., Zi Bo Jia Zhou Chemicals Co., Ltd. (淄博嘉周化工有限公司), Lu Feng(卢锋), Lu Ling Liang(卢令良), Zhang Meng(张盟) and YLL Investment Group Limited dated as of September 30, 2010  Exclusive Technology Consulting Agreement between and among Zi Bo Costar Information Consulting Co., Ltd. and Zi Bo Jia Zhou Chemicals Co., Ltd. (淄博嘉周化工有限公司), dated as of September 30, 2010  the Purchase Option Agreement between and among Zi Bo Costar Information Consulting Co., Ltd., Zi Bo Jia Zhou Chemicals Co., Ltd. (淄博嘉周化工有限公司), Lu Feng(卢锋), Lu Ling Liang(卢令良), Zhang Meng(张盟) and YLL Investment Group Limited dated as of September 30, 2010; and  the Equity Pledge Agreement between and among Zi Bo Costar Information Consulting Co., Ltd., Zi Bo Jia Zhou Chemicals Co., Ltd. (淄博嘉周化工有限公司), Lu Feng(卢锋), Lu Ling Liang(卢令良), Zhang Meng(张盟) and YLL Investment Group Limited  dated as of September 30, 2010.


 


“Company Bank Accounts” means all accounts maintained or held in the name of Jia Zhou at or with any bank or other financial institution, whether existing on the date of this Agreement or established in the future.


 


“Consent” means any approval, consent, ratification, permission, waiver or authorization, including any of the foregoing issued or granted by any Governmental Authority.


 


“Governmental Authority” means any nation or government or any province or state any other political subdivision thereof; any entity, authority or body exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to government, including any government authority, agency, department, board, commission or instrumentality of the People’s Republic of China or any political subdivision thereof; any court, tribunal or arbitrator; and any self-regulatory organization.


 


“Intellectual Property” means any patent, patent application, trademark (whether registered or unregistered and whether or not relating to a published work), trademark application, trade name, fictitious business name, service mark (whether registered or unregistered), service mark application, copyright (whether registered or unregistered), copyright application, maskwork, maskwork application, trade secret, know-how, franchise, system, computer software, invention, design, blueprint, proprietary product, technology, proprietary right, and improvement on or to any of the foregoing, or any other other intellectual property right or intangible asset.


 




  





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“Law” means all applicable provisions of all (a) constitutions, treaties, statutes, laws (including the common law), codes, rules, regulations, ordinances or orders of any Governmental Authority, (b) governmental approvals and (c) orders, decisions, injunctions, judgments, awards and decrees of or agreements with any Governmental Authority.


 


“Legal Requirement” “means any national (or federal), provincial, state, local, municipal, foreign or other constitution, law, statute, legislation, constitution, principle of common law, resolution, ordinance, code, edict, decree, proclamation, treaty, convention, rule, regulation, ruling, directive, pronouncement, requirement, specification, determination, decision, opinion or interpretation issued, enacted, adopted, passed, approved, promulgated, made, implemented or otherwise put into effect by or under the authority of any Governmental Authority.


 


“Lien” means any mortgage, pledge, deed of trust, hypothecation, right of others, claim, security interest, encumbrance, burden, title defect, title retention agreement, lease, sublease, license, occupancy agreement, easement, covenant, condition, encroachment, voting trust agreement, interest, option, right of first offer, negotiation or refusal, proxy, lien, charge or other restrictions or limitations of any nature whatsoever, including but not limited to such Liens as may arise under any contract.


 


“Management Services” is defined in Section 1.


 


“Material Action” means any of the actions set forth in Appendix C.


 


“Net Losses” means the net losses of Jia Zhou under generally accepted accounting principles in the United States.


 


“Net Profit” means the net profit of Jia Zhou under generally accepted accounting principles in the United States.


 


“Person” means an individual, a corporation, a partnership, an association, a trust or other entity or organization, including a government or political subdivision or an agency or instrumentality thereof.


 


“Reasonable Business Judgment” means a judgment reached in good faith and in the exercise of reasonable care.


 


“Taxes” means with respect to any Person, (a) all income taxes (including any tax on or based upon net income, gross income, income as specially defined, earnings, profits or selected items of income, earnings or profits) and all gross receipts, sales, use, ad valorem, transfer, franchise, license, withholding, payroll, employment, excise, severance, stamp, occupation, premium, property or windfall profits taxes, alternative or add-on minimum taxes, customs duties and other taxes, fees, assessments or charges of any kind whatsoever, together with all interest and penalties, additions to tax and other additional amounts imposed by any taxing authority (domestic or foreign) on such Person (if any) and (b) any liability for the payment of any amount of the type described in the clause (a) above as a result of being a “transferee” of another entity or a member of an affiliated or combined group, and “Tax” will have the correlative meaning.


 


“Tax Return” means any return (including any information return), report, statement, declaration, estimate, schedule, notice, notification, form, election, certificate or other document or information that is, has been or may in the future be filed with or submitted to, or required to be filed with or submitted to, any Governmental Body in connection with the determination, assessment, collection or payment of any Tax or in connection with the administration, implementation or enforcement of or compliance with any Legal Requirement relating to any Tax.


 


“Term” is defined in Section 16.


 


“Transfer” means directly or indirectly, to sell, assign, transfer, pledge, bequeath, hypothecate, mortgage, grant any proxy with respect to, or in any other way encumber or otherwise dispose of.


 


“Transition” is defined in Section 8.


 




  





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APPENDIX B


 


Management Services


 


For purposes of that certain Exclusive Management Consulting Services Agreement between and among Zi Bo Costar Information Consulting Co., Ltd., Zi Bo Chemicals Co., Ltd. (淄博嘉周化工有限公司), Lu Feng(卢锋), Lu Ling Liang(卢令良), Zhang Meng(张盟) and YLL Investment Group Limited dated as of September 30, 2010, to which this is Appendix B, “Management Services” means consulting services relating to the following aspects, subject to the ultimate supervision and direction of the board of directors of Jia Zhou:


 


(a) All aspects of the day-to-day operations of Jia Zhou, including its relationships with its customers, its performance under agreements or other arrangements with any other parties, its compliance with applicable laws and regulations;


 


(b) The appointment, hiring, compensation (including any bonuses, non-monetary compensation, fringe and other benefits, and equity-based compensation), firing and discipline of all employees, consultants, agents and other representatives of Jia Zhou, including the directors of Jia Zhou and all other executive officers or employees of Jia Zhou;


 


(c) Establishment, maintenance, termination or elimination of any plan or other arrangement for the benefit of any employees, consultants, agents, representatives or other personnel of Jia Zhou;


 


(d) Management, control and authority over all accounts receivable, accounts payable and all funds and investments of Jia Zhou;


 


(e) Management, control and authority over Company Bank Accounts;


 


(f) Any expenditure, including any capital expenditure, of Jia Zhou;


 


(g) The entry into, amendment or modification, or termination of any contract, agreement and/or other arrangement to which Jia Zhou is, was, or would become a party;


 


(h) The acquisition, lease or license by Jia Zhou of any assets, supplies, real or personal property, or intellectual or other intangible property;


 


(i) The acquisition of or entry into any joint venture or other arrangement by Jia Zhou with any other Person;


 


(j) Any borrowing or assumption by Jia Zhou of any liability or obligation of any nature, or the subjection of any asset of Jia Zhou to any Lien;


 


(k) Any sale, lease, license or other disposition of any asset owned, beneficially owned  or controlled by Jia Zhou;


 


(l) Applying for, renewing, and taking any action to maintain in effect, any permits, licenses or other authorizations and approvals necessary for the operation of Jia Zhou’s business;


 


(m) The commencement, prosecution or settlement by Jia Zhou of any litigation or other dispute with any other Person, through mediation, arbitration, lawsuit or appeal;


 


(n) The declaration or payment of any dividend or other distribution of profits of Jia Zhou;


 


(o) The preparation and filing of all Tax Returns, the payment or settlement of any and all Taxes, and the conduct of any proceedings with any Governmental Authority with respect to any Taxes; and


 


(p) The carrying out of the Transition, as defined in Section 8.


 




  





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APPENDIX C


 


Material Actions


 


For purposes of that certain Exclusive Management Consulting Services Agreement between and among Zi Bo Costar Information Consulting Co., Ltd., Zi Bo Chemicals Co., Ltd. (淄博嘉周化工有限公司), Lu Feng(卢锋), Lu Ling Liang(卢令良), Zhang Meng(张盟) and YLL Investment Group Limited dated as of September 30, 2010,  to which this is Appendix C, “Material Actions” means any of the following:


 


(a) Any change to the organic or charter documents of Jia Zhou;


 


(b) Any issuance of new equity in Jia Zhou, including any securities convertible into equity of Jia Zhou, or the acceptance by Jia Zhou of any equity investment, or the repurchase or redemption of any equity of Jia Zhou;


 


(c) Any hiring, firing, or discipline of any person who is an executive employee or director of Jia Zhou;


 


(d) The purchase of any material asset by Jia Zhou;


 


(e) The sale, conveyance, licensing or pledge of a material asset of Jia Zhou, including, without limitation, any material intellectual property of Jia Zhou;


 


(f) Entering into, amending, supplementing, terminating or otherwise modifying any agreement, contract or other arrangement to which Jia Zhou is or could become a party, having a value or impact on Jia Zhou, individually or in the aggregate, in excess of RMB 100,000;


 


(g) Incurring any indebtedness or similar obligation to third parties or subjecting of any of the equity or assets of Jia Zhou to any Lien;


 


(h) Investing in, incorporating or otherwise creating any affiliate or joint venture or purchasing or otherwise acquiring any stock or any equity interest in any entity or business, in one or a series of related transactions, or disposing of any of the foregoing;


 


(i) Any change to the compensation of any executive employee, consultant or other representative of Jia Zhou;


 


(j) Any transaction, action or agreement by any of Jia Zhou other than in the ordinary course of business;


 


(k) Any transaction, contract or agreement between Jia Zhou and any Shareholder;


 


(l) Declaring or paying dividends on, or making any distributions to any capital stock, except in accordance with the instruments defining the rights of any such capital stock or securities;


 


(m) The initiation or settlement of any litigation or arbitration involving Jia Zhou;


 


(n) Approving the annual budget and multi-year business plan for Jia Zhou;


 


(o) Approving Jia Zhou’s final audits of Jia Zhou’s annual consolidated financial statements and tax returns to be filed by Jia Zhou with any taxing authority;


 


(p) Any material change in Jia Zhou’s accounting or tax policies or a change of Jia Zhou’s independent auditor; and


 


(q) Any change in the number of directors of Jia Zhou, except as a result of the operation of any other provisions of this Agreement.


 


 




  





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APPENDIX D


 







 


 


 


 


 


 




  





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Exhibit I







Company Details













	
Company Name:

	
Zi Bo Chemicals Co., Ltd. (淄博嘉周化工有限公司)













	
Registered Address:

	
1, Electric Power Road, Zhou Cun District, Zi Bo, PRC













	
Registered Capital:

	
RMB32,733,300













	
Legal Representative:

	
Lu Feng (卢锋)












Share Structure:______________________________








	
Name of Shareholders

	
Contribution 


Amount (RMB)

	
Share Proportion 


Held


	
Lu Feng (卢锋)

	  	
33%


	
Lu Ling Liang(卢令良)

	  	
32%


	
Zhang Meng (张盟)

	  	
5%


	
YLL Investment Group Limited

	  	
30%


	
Total Amount

	
RMB32,733,300

	
100%












Directors:







General Manager:







Finance Year:






















15