Attached files
| file | filename |
|---|---|
| 10-K - FORM 10-K - Rodobo International Inc | rodobo_10k-093009.htm |
| EX-10.4 - EXHIBIT 10.4 - Rodobo International Inc | ex10_4.htm |
| EX-10.5 - EXHIBIT 10.5 - Rodobo International Inc | ex10_5.htm |
| EX-10.3 - EXHIBIT 10.3 - Rodobo International Inc | ex10_3.htm |
| EX-10.2 - EXHIBIT 10.2 - Rodobo International Inc | ex10_2.htm |
| EX-32.2 - CERTIFICATION - Rodobo International Inc | rodobo_10k-ex32x2.htm |
| EX-32.1 - CERTIFICATION - Rodobo International Inc | rodobo_10k-ex32x1.htm |
| EX-21.1 - EXHIBIT 21.1 - Rodobo International Inc | rodobo_10k-ex21x1.htm |
| EX-31.1 - CERTIFICATION - Rodobo International Inc | rodobo_10k-ex31x1.htm |
| EX-31.2 - CERTIFICATION - Rodobo International Inc | rodobo_10k-ex31x2.htm |
Exhibit 10.6
EQUITY
PLEDGE AGREEMENT
This
Equity Pledge Agreement (hereinafter this “Agreement”) is dated January 1, 2009,
and entered into in Harbin, China by Harbin Mega Profit Management &
Consultation Co., Ltd., with a registered address at Suite.3, 16th Floor, Hong
Yang Complex Building, No. 380 Changjiang Road, Nangang Ji Zhong District,
Harbin Develop Zone, Heilongjiang, China (“Pledgee”), and Qinggang Mega Profit
Agriculture Co., Ltd., with a registered address at 1st
Floor, Hongbo Community Houdong, Mingzhu Street, Qinggang
County,
China (“Party B” or “Company”, and each of the shareholders of Party B listed on
the signature pages hereto (collectively, the “Pledgors”).
RECITALS
1.
The Pledgee, a wholly foreign owned
limited company incorporated under law of China, has the expertise in the
business of Enterprise Management, Enterprise Development Designing and Economic
Information Consultation.
2.
The Pledgors are shareholders of the Company. The
Pledgors collectively own over 100% of the outstanding equity interests of the
Company.
3.
Pledgee and the Company
have executed a Consulting Services Agreement (hereinafter “Consulting
Services Agreement” or
“Services
Agreement”) concurrently
herewith. Based on this agreement, The Company shall pay technical consulting and service fees
(hereinafter the “Consulting
Services Fees” or
“Services
Fees”) to Pledgee for
offering consulting and related services.
4.
In order to ensure that the Company will
perform its obligations under the Consulting Services Agreement, and in order to
provide an additional mechanism for the Pledgee to enforce its rights to collect
the Consulting Services Fees from the Company, the Pledgors agree to pledge all
their equity interest in the Company as security for the performance of the
obligations of the Company under the Consulting Services Agreement and the
payment of Consulting Services Fees under such agreement.
NOW THEREFORE, the Pledgee,
the Company and the Pledgors through mutual negotiations hereby enter into this
Agreement based upon the following terms:
1.
Definitions and
Interpretation. Unless otherwise provided in this Agreement,
the following terms shall have the following meanings:
1.1
“Pledge” refers to the
full content of Section 2 hereunder.
1.2
“Equity Interest”
refers to all the equity interest in the Company legally held by the
Pledgors.
1.3
“Term of Pledge”
refers to the period provided for under Section 3.2
hereunder.
2
1.4
“Event of Default”
refers to any event in accordance with Section 7.1 hereunder.
1.5
“Notice of
Default” refers to the notice of default issued by the Pledgee in
accordance with this Agreement.
2.
Pledge. The Pledgors
agree to pledge their equity interest in the Company to the Pledgee (“Pledged Collateral”)
as a security for the obligations of the Company under the Consulting Services
Agreement. Pledge under this Agreement refers to the rights owned by the
Pledgee, who shall be entitled to a priority in receiving payment by the
evaluation or proceeds from the auction or sale of the equity interest pledged
by the Pledgors to the Pledgee.
3.
Term of
Pledge.
3.1
The Pledge shall take effect as of the date
when the Pledge of the equity interest under this Agreement is recorded in the
Register of Shareholder of The Company. The term of the Pledge shall last until
two (2) years after the obligations under the Consulting Services Agreement are
fulfilled.
3.2
During
the term of the Pledge, the Pledgee shall be entitled to vote, control, sell, or
dispose of the pledged assets in accordance with this Agreement in the
event that Pledgors do not
perform their obligation under the Consulting Services Agreement and the Company fails to pay
the Consulting Service Fees in accordance with the Consulting Services
Agreement.
3
3.3
During the term of the Pledge, the Pledgee shall be
entitled to collect any and all dividends declared or paid in connection with
the equity interest.
4.
Pledge Procedure and
Registration
4.1
The Pledge under this Agreement shall be recorded
in the Register of Shareholders of the Company. The Pledgor shall, within 10
days after the date of this Agreement, process the registration procedures with
Administration for Industry and Commerce concerning the
Pledge.
5.
Representation and
Warranties of Pledgors.
5.1
The Pledgors are the legal
owners of the equity interest pledged.
5.2
The Pledgors have not pledged
the equity interest to any other party, and or the equity interest is not
encumbered to any other person except for the Pledgee.
4
6.
Covenants of
Pledgors.
6.1
During the effective
term of this Agreement, the Pledgors promise to the Pledgee for its benefit that
the Pledgors shall:
6.1.1 Not
transfer or assign the equity interest, create or permit to create any pledges
which may have an adverse effect on the rights or benefits of the Pledgee
without prior written consent from the Pledgee.
6.1.2 Comply
with and implement laws and regulations with respect to the pledge of rights;
present to the Pledgee the notices, orders or suggestions with respect to the
Pledge issued or made by the competent authority within five (5) days upon
receiving such notices, orders or suggestions; and comply with such notices,
orders or suggestions; or object to the foregoing matters at the reasonable
request of the Pledgee or with consent from the Pledgee.
6.1.3 Timely
notify the Pledgee of any events or any received notices which may affect the
Pledgor’s equity interest or any part of its right, and any events or any
received notices which may change the Pledgor’s any warranty and obligation
under this Agreement or affect the Pledgor’s performance of its obligations
under this Agreement.
5
6.2
The Pledgors agree that the Pledgee’s right
to the Pledge obtained from this Agreement shall not be suspended or inhibited
by any legal procedure launched by the Pledgor or any successors of the Pledgor
or any person authorized by the Pledgor or any such other person.
6.3
The Pledgors promise to the Pledgee that in order
to protect or perfect the security for the payment of the Services Fees, the
Pledgors shall execute in good faith and cause other parties who have interests
in the Pledge to execute all the title certificates, contracts, and perform
actions and cause other parties who have interests to take action, as required
by the Pledgee; and make access to exercise the rights and authorization vested
in the Pledgee under this Agreement.
6.4
The Pledgors promise to the Pledgee that they will execute all
amendment documents (if applicable and necessary) in connection with any
registration of the Pledge with the Pledgee or its designated person (natural
person or a legal entity), and provide the notice, order and decision to the
Pledgee as necessary, within a reasonable amount of time upon
request.
6.5
The Pledgors promise to the
Pledgee that they will comply with and perform all the guarantees, covenants,
warranties, representations and conditions for the benefits of the Pledgee. The
Pledgors shall compensate all the losses suffered by the Pledgee as a result of the Pledgors
failing perform or fully perform their guarantees, covenants, warranties,
representations and conditions.
6
7.
Events Of
Default.
7.1
The following events shall be regarded as the
events of default:
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7.1.1
|
This
Agreement is deemed illegal by a governing authority in the PRC, or the
Pledgor is not capable of continuing to perform the obligations herein due
to any reason except force
majeure;
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7.1.2
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The
Company fails to make full payment of the Services Fees as scheduled under
the Service Agreement;
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7.1.3
|
A
Pledgor makes any materially false or misleading representations or
warranties under Section 5 herein, and/or the Pledgor breaches any
warranties under Section 5
herein;
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7
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7.1.4
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A
Pledgor breaches the covenants under Section 6
herein;
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7.1.5
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A
Pledgor breaches the term or condition
herein;
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7.1.6
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A
Pledgor waives the pledged equity interest or transfers or assigns the
pledged equity interest without prior written consent of the
Pledgee;
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7.1.7
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The
Company is incapable of repaying the general debt or other
debt;
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7.1.8
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The
property of the Pledgor is adversely affected causing the Pledgee to
believe that the capability of the Pledgor to perform the obligations
herein is adversely affected;
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7.1.9
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The
successors or agents of the Company are only able to perform a portion of
or refuse to perform the payment obligations under the Service
Agreement;
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7.1.10
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The
breach of the other terms by action or inaction under this agreement by
the Pledgor.
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7.2
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The
Pledgor shall immediately give a written notice to the Pledgee if the
Pledgor is aware of or discovers that any event under Section 7.1 herein
or any event that may result in the foregoing events has occurred or is
likely to occur.
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7.4
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Unless
the event of default under Section 7.1 herein has been solved to the
Pledgee’s satisfaction, the Pledgee, at any time when the event of default
occurs or thereafter, may give a written notice of default to the Pledgor
and require the Pledgor to immediately make full payment of the
outstanding Service Fees under the Service Agreement and other payables or
exercise other rights in accordance with Section 8
herein.
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8.
Exercise of
Remedies.
8.1
Authorized
Action by Secured Party. The Pledgors hereby irrevocably appoint
Pledgee the attorney-in-fact of the Pledgors for the purpose of carrying out the
security provisions of this Agreement and taking any action and executing any instrument that the
Pledgee may deem necessary or advisable to accomplish the purposes of this
Agreement. If an event of default occurs, or is continuing, Pledgee shall have
the right to exercise the following rights and
powers:
9
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(a)
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Collect
by legal proceedings or otherwise and endorse and/or receive all payments,
proceeds and other sums and property now or hereafter payable on or on
account of the Pledged Collateral;
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(b)
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Enter
into any extension, reorganization, deposit, merger, consolidation or
other agreement pertaining to, or deposit, surrender, accept, hold or
apply other property in exchange for the Pledged
Collateral;
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(c)
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Transfer
the Pledged Collateral to its own or its nominee’s
name;
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(d)
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Make
any compromise or settlement, and take any action it deems advisable, with
respect to the Pledged
Collateral;
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(e)
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Notify
any obligor with respect to any Pledged Collateral to make payment
directly to the Pledgee;
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(f)
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All
rights of the Pledgors to exercise the voting and other consensual rights
it would otherwise be entitled to exercise without any action or the
giving of any notice shall cease, and all such rights shall thereupon
become vested in the Pledgee;
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(g)
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All
rights of the Pledgors to receive distributions with respect to the
Pledged Collateral which it would otherwise be authorized to receive and
retain shall cease and all such rights shall thereupon become vested in
the Pledgee; and
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(h)
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The
Pledgors shall execute and deliver to the Pledgee appropriate instruments
as the Pledgee may request in order to permit the Pledgee to exercise the
voting and other rights which it may be entitled to exercise and to
receive all distributions which it may be entitled to
receive.
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The Pledgors hereby grant to Pledgee an
exclusive, irrevocable power of attorney, with full power and authority in the
place and stead of the Pledgors to take all such action permitted under this
Section
8.1. Such power of attorney shall be effective,
automatically and without the necessity of any action (including any transfer of
any Pledged Collateral) by any person, upon the occurrence and continuance of an
event of default. Pledgee shall not have any duty to exercise any such right or
to preserve the same and shall not be liable for any failure to do so or for any
delay in doing so.
11
8.2
Event of defaults;
Remedies. Upon the occurrence of an event of default, Pledgee may,
without notice to or demand on the Pledgors and in addition to all rights and
remedies available to Pledgee, at law, in equity or otherwise, do any of the
following:
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(a)
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Require
the Pledgors to immediately pay all outstanding unpaid amounts due under
the Consulting Services Agreement;
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(b)
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Foreclose
or otherwise enforce Pledgee’s security interest in any manner permitted
by law or provided for in this
Agreement;
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(c)
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Terminate
this Agreement pursuant to Section
11;
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(d)
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Exercise
any and all rights as beneficial and legal owner of the Pledged
Collateral, including, without limitation, perfecting assignment of and
exercising any and all voting, consensual and other rights and powers with
respect to any Pledged Collateral;
and
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(e)
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Exercise
any and all the rights and remedies of a secured party upon default under
applicable law.
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8.3
The Pledgee shall give a notice of default
to the Pledgors when the Pledgee exercises its remedies under this
Agreement.
8.4
Subject to Section 7.3, the Pledgee may exercise
its remedies under this Agreement at any time after the Pledgee gives a notice
of default in accordance with Section 7.3 or thereafter.
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8.5
The Pledgee is entitled to priority in receiving payment
by the evaluation or proceeds from the auction or sale of whole or part of the
equity interest pledged herein in accordance with legal procedure until the
unpaid Services Fees under the Services Agreement are repaid.
8.6
The Pledgor shall not hinder the Pledgee from exercising its
rights in accordance with this Agreement and shall give necessary assistance so
that the Pledgee may exercise its rights in full.
9.
Assignment.
9.1
The Pledgors shall
not donate or transfer rights and obligations herein without prior consent from
the Pledgee.
9.2
This Agreement shall be
binding upon each of the Pledgors and his, her or its successors and be binding
on the Pledgee and his each successor and assignee.
9.3
The Pledgee may transfer or assign his
all or any rights and obligations under the Service Agreement to any individual
specified by it (natural person or legal entity) at any time. In this case, the
assignee shall enjoy and undertake the same rights and obligations herein of the
Pledgee as if the assignee is a party hereto. When the Pledgee transfers or assigns the rights
and obligations under the Service Agreement, and such transfer shall only be
subject to a written notice serviced to Pledgors, and at the request of the Pledgee, the Pledgors
shall execute the relevant agreements and/or documents with respect to such
transfer or assignment.
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9.4
In the event of a change
in control of the Pledgee’s resulting in the transfer or assignment of this
agreement, the successor parties to the pledge shall execute a new pledge
contract.
10.
Formalities, Fees and Other
Charges.
10.1 The
Pledgors shall be responsible for all the fees and actual expenses in relation
to this Agreement including but not limited to legal fees, cost of production,
stamp tax and any other taxes and charges. If the Pledgee pays the relevant
taxes in accordance with applicable law, the Pledgors shall fully indemnify the
Pledgee such taxes paid by the Pledgee.
10.2 The
Pledgors shall be responsible for all the fees (including but not limited to any
taxes, formalities fees, management fees, litigation fees, attorney’s fees, and
various insurance premiums in connection with disposition of Pledge) incurred by
the Pledgors for the reason that the Pledgors fail to pay any payable taxes,
fees or charges for other reasons which cause the Pledgee to recourse by any
means or ways.
15
11.
Force
Majeure.
11.1 “Force Majeure” shall include
but not be limited to acts of governments, acts of nature, fire, explosion,
typhoon, flood, earthquake, tide, lightning, war, refers to any unforeseen
events beyond the party’s reasonable control and cannot be prevented with
reasonable care. However, any shortage of credit, capital or finance shall not
be regarded as an event beyond a Party’s reasonable control. The affected the
Company Force Majeure
shall notify the other party of such event resulting in exemption
promptly.
11.2 In
the event that the affected party is delayed in or prevented from performing its
obligations under this Agreement by Force Majeure, only within
the scope of such delay or prevention, the affected party will not be
responsible for any damage by reason of such a failure or delay of performance.
The affected party shall take appropriate means to minimize or remove the
effects of Force Majeure
and attempt to resume performance of the obligations delayed or prevented
by the event of Force
Majeure. After occurrence of an event of Force Majeure, when such
event or condition ceases to exist, both parties agree to resume the performance
of this Agreement with their best efforts.
12.
Confidentiality. The parties of this agreement
acknowledge and make sure that all the oral and written materials exchanged
relating to this contract are confidential. All the parties have to keep them
confidential and can not disclose them to any other third party without other parties’ prior
written approval, unless: (a) the public know and will know the materials (not
because of the disclosure by any contractual party); (b) the disclosed materials are required by
laws or stock exchange rules; or (c) materials relating to this transaction are
disclosed to parties’ legal consultants or financial advisors, however, who have
to keep them confidential as well. Disclosure of confidential information by
Employees or hired institutions of the parties is deemed as the act by the
parties, therefore, subjecting them to liability.
16
13.
Dispute
Resolution.
13.1
This Agreement shall be governed by and construed in
accordance with the PRC law.
13.2 The
parties shall strive to settle any dispute arising from the interpretation or
performance, or in connection with 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. The arbitration shall follow the current rules of
CIETAC, and the arbitration proceedings shall be conducted in Chinese and shall
take place in Shanghai. Any resulting arbitration award shall be final and
binding upon the parties.
14.
Notices. Any notice which is given by the
parties hereto for the purpose of performing the rights and obligations
hereunder shall be in writing. Where such notice is delivered personally, the time of
notice is the time when such notice actually reaches the addressee; where such
notice is transmitted by facsimile, the notice time is the time when such notice
is transmitted. If such notice does not reach the addressee on business date or
reaches the addressee after the business time, the next business day following
such day is the date of notice. The delivery place is the address first written
above of the parties
hereto or the address advised in writing including via facsimile from time to
time.
17
15.
Entire Contract. All
Parties agree that this Agreement constitute the entire agreement of the Parties
with respect to the subject matter therein upon its effectiveness and supersedes
and replaces all prior oral and/or written agreements and understandings
relating to this Agreement.
16.
Severability. Any
provision of this Agreement which is invalid or unenforceable because of
inconsistent with the relevant laws shall, as to that jurisdiction, be
ineffective to the extent of such invalidity or unenforceability, without
affecting in any way the remaining provisions hereof.
17.
Appendices. The
appendices to this Agreement are entire and integral part of this
Agreement.
18
18.
Amendment or
Supplement.
18.1 Parties
may amend and supply this Agreement with a written agreement, provided that such
amendment shall be duly executed and signed by the Pledgee, The Company, and
holders of a majority of the shares of The Company held by the Pledgors, and
such amendment shall thereupon become a part of this Agreement and shall have
the same legal effect as this Agreement.
18.2 This
agreement and any amendments, modification, supplements, additions or changes
hereto shall be in writing and come into effect upon being executed and sealed
by the parties hereto.
19.
Language and Copies of the
Agreement. This Agreement has been executed in four (4) duplicate
originals in English, each Party has received one (1) duplicate original, and
all originals shall be equally valid.
[SIGNATURE
PAGE FOLLOWS]
19
[Signature
Page]
IN WITNESS WHEREOF both
parties hereto have caused this Agreement to be duly executed by their legal
representatives and duly authorized representatives on their behalf as of the
date first set forth above.
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PLEDGEE:
|
Harbin
Mega Profit Management & Consultation Co., Ltd.
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||
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Legal/Authorized
Representative:
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/s/ ZHENG Zhi
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||
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Name:
ZHENG Zhi
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|||
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Title:
Executive Director
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|||
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THE
COMPANY:
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Qinggang
Mega Profit Agriculture Co., Ltd.
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||
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Legal/Authorized
Representative:
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/s/ ZHENG Zhi
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||
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Name:
ZHENG Zhi
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|||
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Title:
Executive Director
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20
PLEDGORS:
SHAREHOLDERS
OF THE COMPANY:
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/s/ WANG Yanbin
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||
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By:
WANG Yanbin
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||
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PRCIDCardNo.:
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||
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Shares
of Qinggang Mega Profit Agriculture Co., Ltd. owned by WANG
Yanbin: 85%
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||
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/s/ WANG
Yanbin
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||
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By:
WANG Xuelong
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||
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PRCIDCardNo.:
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||
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Shares
of Qinggang Mega Profit Agriculture Co., Ltd. owned by WANG
Xuelong: 15%.
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||
21
Appendix
1
RESOLUTIONS
OF THE GENERAL SHAREHOLDERS' MEETING OF THE COMPANY
WHEREAS,
that certain significant shareholders of Company have agreed to pledge their
shares of the company under an Equity Pledge Agreement dated January 1,2009;
and
WHEREAS,
it is in the best interest of the Company for the shareholders to enter into
such Equity Pledge Agreement.
RESOLVED,
that the pledge of shares held by the shareholders of the company under the
Equity Pledge Agreement is hereby approved.
This
resolution was executed and submitted on January 1, 2009 by the undersigned
shareholders:
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SHAREHOLDERS:
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Signature:
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/s/
WANG Yanbin
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Name:
WANG Yanbin
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Address:
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ID
Card No.:
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Telephone:
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Facsimile:
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Signature:
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/s/
WANG Xuelong
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Name:
WANG Xuelong
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Address:
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ID
Card No.:
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Telephone:
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Facsimile:
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24