Business Operating Agreement
Exhibit
4.9
This
Business Operating Agreement (hereinafter referred to as this “Agreement”) is entered into on
this 1st day of
July, 2008 in Shanghai of China by and among:
Xxxxxx Computer (Shanghai) Co.,
Ltd., located at Xxxx 000-X, Xx. 000 Xxxxxxxxxx Xxxx, Xxxxxx New
Area, Shanghai, hereinafter
referred to as “Party A”; and
Shanghai Xxxxxx Networking
Development Co., Ltd., located at Xxxx 000-X, Xx. 000 Xxxxxxxxxx Xxxx,
Xxxxxx New Area, Shanghai,
hereinafter referred to as “Party B”; and
Xxxx Xxxx-xxxx (ID Card No.:
[XXX]), whose residence
locates at [XXX], hereinafter referred to as “Party C”; and
Chen Da-nian (ID Card No.:
[XXX]), whose residence
locates at [XXX], hereinafter referred to as “Party D”.
Party A,
Party B, Party C and Party D may hereinafter collectively be referred to as the
“ Parties” and,
individually, as the “Party”.
Whereas,
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1.
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Party
A is a wholly foreign-owned enterprise incorporated and existing according
to law in the People' Republic of China (the
“PRC”);
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2.
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Party
B is a limited liability company incorporated in the
PRC;
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3.
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Party
A and Party B have established business relationship by entering into the
Exclusive Consulting and Service Agreement and other agreements, according
to which Party B shall pay Party A the service fees and other fees.
Therefore, the daily operating activities of Party B may affect its
capability to pay Party A such service fees and other fees
materially;
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4.
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Party
C and Party D are shareholders of Party B (hereinafter referred to as the
“Shareholders”).
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NOW
THEREFORE, the
Parties have reached the following terms and conditions for mutual compliance on
the principle of equal footing and mutual benefits through friendly
negotiation:
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1.
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Non-action
Obligations
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For
ensuring that Party B can perform all agreements by and between it and Party A
and all of its obligations in favor of Party A, the Shareholders hereby
acknowledge and agree that, unless otherwise agreed by Party A or other person
designated by it in writing in advice, Party B shall not carry out any
transactions that may materially affect its assets, business, personnel,
obligations, rights or operating, including but not limited to:
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1.1
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Carrying
out any activities beyond its normal operating scopes, or operate its
business by such means as are inconsistent with its previous operating
means or not the normal means;
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1.2
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Borrowing
money from any third party or bearing any
obligations;
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1.3
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Replacing
or unseating any of its directors or replace any of its senior
management;
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1.4
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Selling
or acquiring or otherwise disposing any of its assets or rights with the
values of more than RMB [ ] million to or from any third
party, including but not limited to any intellectual
properties;
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1.5
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Making
its assets or intellectual properties as the security or offering any
other security or creating any other encumbrances on its assets in favor
of any third party;
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1.6
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Amending
the articles of association or changing its business
scopes;
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1.7
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Changing
its normal business process or amending any of its internal significant
rules and regulations;
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1.8
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Assigning
its rights and obligations hereunder to any third
party;
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1.9
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Adjusting
its business operating modes, marketing strategies, operating guidance or
client relationship materially;
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1.10
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Distributing
its bonus and dividends in any way.
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2.
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Operating
Management and Personnel Assignment
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2.1
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Party
B and the Shareholders have hereby agreed to accept
such proposals on employee employment and dismissal, daily
operating management and financial management system of the company as may
be given by Party A from time to time, and to implement such proposes
strictly.
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2.2
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Party
B and the Shareholders have hereby agreed that the Shareholders will
select Party B's directors from the candidates designated by Party A in
accordance with the process set forth in the laws, regulations and the
articles
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2
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of
association, and cause the selected directors to select the president of
the company from the candidates designated by Party A, and appoint the
personnel designated by Party A to act as the general manager, financial
controller and other senior management of Party
B.
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2.3
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In
the event that any of the said directors or senior management designated
by Party A resigns from or is dismissed by Party A, he/she shall be
disqualified to have any title in Party B. In such case, the Shareholders
shall dismiss any title of the said personnel in Party B immediately, and
shall select and employ other personnel designated by Party A to have such
title forthwith.
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2.4
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For
the purpose of Article 2.3 above, the Shareholders shall take all internal
and external processes necessary to complete the said employment and
dismissal in accordance with the laws, the articles of association and
this Agreement.
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2.5
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The
Shareholders have hereby agreed to enter into the Power of Attorney in
Appendix 1 when they enter into this Agreement, according to which the
Shareholders shall authorize Party A to exercise the shareholder rights
for and on behalf of them irrevocably and to exercise all voting rights of
the Shareholders in the name of such Shareholders in the general meetings
of Party B. Party A is entitled to appoint relevant personnel to exercise
the said shareholder rights in the period set forth in the Power of
Attorney.
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3.
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Miscellaneous
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In
the event
that any agreement between Party A and Party B is terminated or
expires, Party A is entitled to determine whether to terminate all
agreements by and between it and Party B, including but not limited to
this Exclusive Consulting and Service
Agreement.
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4.
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Entire
Agreement and Amendments to
Agreement
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4.1
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This
Agreement and all other agreements and/or documents mentioned or included
herein expressly shall constitute the entire agreement in respect of the
subject matter hereof among the Parties, and supersede all previous
agreements, contracts, understandings and communications among the Parties
in respect of the subject matter hereof, whether in oral or
writing.
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4.2
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Any
amendment to this Agreement can come to effect only after such amendment
is entered into by the Parties in writing. Any amendment and supplement shall
be integral to this Agreement after the same is entered into by the
Parties, which shall
have the same force and effect with this
Agreement.
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3
5.
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Governing
Law
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The conclusion, validity and
performance of, interpretation to and dispute resolution in relation to
this Agreement shall be governed by and interpreted in accordance with
the laws of the
PRC.
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6.
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Dispute
Resolution
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6.1
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Any dispute arising out of the
interpretation to or performance of this Agreement shall be resolved
through friendly negotiation in good faith by the Parties; if not reached, any Party may
submit such dispute to the China International Economic and Trade Arbitration
Commission Shanghai Commission (“CIETACSC”) according to the Rules of
CIETACSC in force for the time being. Such arbitration shall be carried
out in Shanghai. The language in the arbitration proceedings shall be
Chinese. The awards are final and binding
upon the Parties.
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6.2
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Save for the matters under
disputes, each Party shall continue to perform their respective
obligations in good faith in accordance with this
Agreement.
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7.
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Notices
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7.1
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All
notices and correspondences to or upon each Party to be effective for the
performance of the rights and obligations hereunder shall be in writing,
and sent to the following addresses of the other Party(ies) by personal
delivery, registered mail, postage prepaid mail, generally accepted
courier service or fax.
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Party
A: Xxxxxx Computer (Shanghai) Co., Ltd.
Address: Xxxx 000-X,
Xx. 000 Xxxxxxxxxx Xxxx, Xxxxxx Xxx Xxxx,
Xxxxxxxx
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Party
B: Shanghai Xxxxxx Networking Development Co.,
Ltd.
Address: Room 402-B,
Xx. 000 Xxxxxxxxxx Xxxx, Xxxxxx Xxx Xxxx,
Xxxxxxxx
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Party
C: Xxxx Xxxx-xxxx
Address:
[XXX]
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Party
D: Chen Da-nian
Address:
[XXX]
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7.2
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Any
notice and correspondence shall be deemed to be served as
follows:
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4
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7.2.1
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If
it is sent by fax, it shall be deemed to be served on the recording date
on the faxed copy. However, if it is sent after 17:00 P.M. on a business
day or on a non-business day of the addressee, it shall be deemed to be
served on the next business day following the recording date on the faxed
copy;
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7.2.2
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If
it is sent by personal delivery (including the express mail service), the
date when it is signed and accepted shall
prevail;
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7.2.3
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If
it is sent by registered mail, the 15th
day following the date recorded on the return receipt shall
prevail.
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8.
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Validity,
Term and Miscellaneous
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8.1
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Party
A's written consents, proposals, appointments and other decisions that may
affect Party B's daily operation significantly, which are involved in this
Agreement, shall be made by the board of directors of Party
A.
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8.2
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This
Agreement comes to effect on the date first written above when it is
entered into by the Parties. Unless otherwise terminated by Party A
earlier, this Agreement shall be valid for twenty (20) years (the “Term”)
from the date when it comes to effect. The Parties shall extend this
Agreement at Party A's request provided that Party A requests doing so
prior to the expiration of the Term of this Agreement, and shall enter
into a new business operating agreement or continue to perform this
Agreement at Party A's request.
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8.3
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Neither
Party B nor the Shareholders shall terminate this Agreement earlier in the
Term of this Agreement. Party A is entitled to terminate this Agreement at
any time by sending a thirty-day written notice to Party B and the
Shareholders.
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8.4
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The
Parties hereby confirm that this Agreement constitutes the fair and
reasonable agreements by and among them on the basis of equal footing and
mutual benefits. In the event that any provision hereof becomes invalid or
unenforceable because such provision conflicts with relevant laws, such
provision shall be deemed to be deleted from this Agreement and shall be
deemed as expired as if it would not have been included in this Agreement
from the date when this Agreement is entered into. However, the remaining
provisions hereof shall remain valid and effective. The Parties shall
negotiate on replacing such deleted provision with an acceptable, lawful
and effective provision.
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8.5
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Any
failure to exercise any of its rights, powers or privileges hereunder by
any Party shall not constitute a waiver of such
rights,
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powers
or privileges by such Party. Any single or partial exercise of any of its
rights, powers or privileges hereunder by any Party shall not affect the
exercise of any other rights, powers or privileges
hereunder.
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8.6
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Party C and Party D have
undertaken that any provision herein is binding upon them lawfully,
irrespective of any change of Party B's Share held by Party C and Party D
respectively in the
future, and that this Agreement shall be applicable to all of Party B's
Share to be held by Party C and Party D for the time
being.
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IN WITNESS WHEREOF, the
Parties have duly caused their authorized representatives to enter into this
Agreement on the date first written above.
[No Text
Follow, Signature Page for Business Operating Agreement Follow]
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Party A:
Xxxxxx Computer (Shanghai) Co., Ltd. (Seal)
Legal
Representative/Authorized Representative: _____________________
Title:
______________________________
Date: ____________MM
______________DD _____________ YY
Party B:
Shanghai Xxxxxx Networking Development Co., Ltd. (Seal)
Legal
Representative/Authorized Representative: _____________________
Title:
______________________________
Date: ____________MM
______________DD _____________ YY
Party C:
Xxxx Xxxx-xxxx (Sign)
Date: ____________MM
______________DD _____________ YY
Party D:
Chen Da-nian (Sign)
Date: ____________MM
______________DD _____________ YY
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