Second Amended and Restated Business Operation Agreement
Exhibit 4.45
Second Amended and Restated Business Operation Agreement
This Amended and Restated Business Operation Agreement (hereinafter the “Agreement”) is entered into on the day of December 30, 2004 (hereinafter the “Effective Date”) among the following parties:
eLongNet Information Technology (Beijing) Co., Ltd. (hereinafter “Party A”)
Address: 00 Xxxxxxxxxxx Xxxxxx, Xxxxxxxx Xxxxxxxx Beijing
Legal Representative: Xxxxxx Xxxx
Beijing eLong Information Technology Co., Ltd. (hereinafter “Party B”)
Address: Xxxx 000, Xxxx Xxxxx, Xx. 00 Xxxxxxxxxx Xxxxxx Haidian District Beijing
Legal Representative: Xxxxxx Xxxx
Xxxxxx Xxxx. (hereinafter “Party C”)
Address: Xxxx 00X Xx. 0 Building, Yujing Garden, Xx.0 Xxxxxxxxxx Xxxxxx,
Xxxxxxxx Xxxxxxxx, Xxxxxxx
ID No.: 3201061971032121236
Xxxxxxxx Xxxx. (hereinafter “Party D”)
Address: Room 6,Unit 0, Xx.0 Xxxxxxxx, Xxxxxxxxxxxx, Xxxxxxx Xxxxxxxx, Xxxxxxx
ID No.: 120106196601157029
Xxxxxxx Xxxxx. (hereinafter “Party E”)
Address: Xxxx 0000, Xxxxxxxxxx Xxxxxxxxxxxxxxxx International Mansion-D, Chaoyang
District, Beijing
ID No.: 11010819751101971X
WHEREAS:
(1) Party A is a wholly foreign-owned enterprise with valid existence registered in the People’s Republic of China (hereinafter the “PRC”);
(2) Party B is a wholly domestic-owned company registered in the PRC and is approved by Beijing Communication Administration to engage in Internet information service business;
(3) Party A and Party B established the business relationship by entering into the Exclusive Technical Services Agreement (hereinafter the “Services Agreement”) on the date of February 1, 2001 in Beijing;
(4) Pursuant to Services Agreement between Party A and Party B, Party B shall pay a certain amount of money to Party A. However, Party B’s business operation will substantially affect Party A’s payment capability;
(5) Party C is a shareholder of Party B who owns 75% equity in Party B;
(6) Party A, Party B, Party C and Mr. Qu Zhi, who was shareholder and owned 25% equity of Party B, signed the Amended and Restated Business Operation Agreement on July 20, 2004 for making definiteness about business operation with Party B.
(7)According to the Arrangement on Transferring Equities and Obligations signed by Party D, Party E and Mr. Qu Zhi on December 30, 2004, Mr. Qu Zhi shall transfer 12.5% of equity interest in Beijing eLong Information Technology Co., Ltd and any credit and debts with Party B caused by investment to Party D and Party E separately.
(8) For reflecting the succession of Party D and Party E to the Amended and Restated Business Operation Agreement signed by Mr. Qu Zhi and Party A, Party B and Party C on July 20, 2004, Party A, Party B, Party C, Party D and Party E shall amend and restate secondly the Amended and Restated Business Operation Agreement according to provisions of this agreement.
NOW THEREFORE, Party A, Party B, Party C, Party D, and Party E through mutual negotiations hereby agree as follows:
1. In order to ensure Party B’s normal operation, Party A agrees, subject to Party B’s satisfaction of the relevant provisions herein, to act as the guarantor for Party B in the contracts, agreements or transactions in association with Party B’s operation between Party B and any other third party and to provide full guarantee for Party B in performing such contracts, agreements or transactions. Party B agrees to mortgage the receivables of its operation and the company’s whole asset to Party A as a counter guarantee. Pursuant to the above guarantee arrangement, Party A, as the guarantor for Party B, shall respectively enter into written guarantee contracts with Party B’s counter parties to assume the guarantee liability.
2. In consideration of the requirement of Article 1 herein and to ensure the performance of the various operation agreements between Party A and Party B and to ensure the payment of the various payables by Party B to Party A, Party B together with its shareholders Party C, Party D and Party E hereby jointly agree that Party B shall not conduct any transaction which may materially affect its assets, obligations, rights or the company’s operation unless the obtainment of a prior written consent from Party A, including without limitations to the following contents:
2.1 To borrow money from any third party or assume any debt (including contingent liabilities);
2.2 To sell to any third party or acquire from any third party any assets or rights, including without limitations to any intellectual property rights;
2.3 To provide real guarantee for any third party with its assets or intellectual property rights;
2.4 To assign to any third party the agreements entered into by it.
3. Appointment of the Company’s Employees
3.1 In order to ensure the performance of the various operation agreements between
Party A and Party B and to ensure the payment of the various payables by Party B to Party A, Party B together with its shareholders Party C and Party D hereby jointly agree to accept the provision of the corporate policies and guidance by Party A at no time in respects of appointment and dismissal of the company’s employees, the company’s daily operation administration and the company’s financial administrative system.
3.2 Party B together with its shareholders Party C, Party D and Party E hereby jointly agree that Party B, Party D and Party E shall only appoint the personnel recommended by Party A as the directors of Party B, and Party B shall engage Party A’s high ranking officers or any other candidate recommended by Party A as Party B’s general manager, chief financial officer, and other high ranking officers. If any of the above officers leaves or is fired by Party A, he or she will lose the qualification to undertake any positions in Party B and Party B, shall appoint other high officers of Party A recommended by Party A to undertake such position.
4. Guarantees for Working Capital
The guarantee for the loan of working capital Party B together with its shareholders Party C Party D and Party E hereby jointly agree and confirm that except the stipulation set forth in Article 1 herein, Party B shall seek a guarantee from Party A first if Party B needs any guarantee for its performance of any contract or loan of working capital in the course of operation. In this case, Party A shall have the right but not the obligation to provide appropriate guarantee to Party B on its own discretion. If Party A decides not to provide such guarantee, Party A shall issue a written notice to Party B immediately and Party B shall seek a guarantee from other third party.
5. Termination
5.1 In the event that any of the agreements between Party A and Party B terminates or expires, Party A shall have the right but not the obligation to terminate all agreements between Party A and Party B including without limitation to Services Agreement.
5.2 Party A has right to terminate the agreement by delivering 30 days’ written notice to Party B at any time. During the validity period of the agreement, Party B and Party C, Party D and Party E should not terminate the agreement in advance, except the regulations in the applicable law.
6. Compensation for Damage
All the parties agree that any party violating any obligation of the agreement shall compensate any or all loss, responsibility, expense, claim or expenditure (including legal expense and expenditure), to any other party (Hereinafter “Party Accepting Compensation”), and guarantee that the Party Accepting Compensation shall not receive any damage.
7. Settlement of Distribution
7.1 The agreement shall be under the jurisdiction of the law of PRC, and be explained in accordance with the law of PRC.
7.2 Any dispute, tangle or claim arising from the agreement or relating with the agreement (including any issue relating with the existence, validity or termination of the agreement) should be submitted to China International Economic and Trade Arbitration Commission (the “Arbitration Commission”). Arbitration Commission shall conduct arbitration in accordance with the current effective rules of arbitration application. The arbitration award shall be final and binding upon both parties.
7.3 Arbitration place shall be in Beijing, PRC.
7.4 Arbitration language shall be English.
7.5 The court of arbitration shall compose of three arbitrators. Both parties should respectively appoint an arbitrator, the chairman of the court of arbitration shall be appointed by both parties through consultation. In case both parties do not coincide in opinion of the person selected for the chief arbitrator within twenty days from the date of their respectively appoint an arbitrator, the director of Arbitration Commission shall have right to appoint the chief arbitrator. The chief arbitrator shall not be Chinese citizen or American citizen.
7.6 Both parties agreed that the court of arbitration established according to the regulation shall have right to provide actually performed relief on the proper situation according with PRC Law (including but not being limited to Law of Contract of the People’s Republic of China). For the avoidance of doubt, both parties further that any court having jurisdiction (including PRC Court) shall carry out the arbitral award of actual performance issued by the court of arbitration.
7.7 Both parties agreed to conduct arbitration in accordance with this regulation, and irrepealably abstain the right to appeal, reexamine or prosecute to national court or other administration of justice in any form, and the precondition shall be that the aforesaid waiver is effective. However the waiver of both parties does not include any post-arbitration injunction, post-arbitration distress warrant or other command issued by any court having jurisdiction (including PRC Court) for terminating the arbitration procedure or carrying out any arbitral award.
8. Effectiveness of the Agreement
8.1 This Agreement shall be executed as of the date first set forth above and become effective since the date that Qu Zhi has completed its transference of equity interest change to Party D Party E. The Agreement shall remain effective during existence of Party A (including any extended period).
8.2 Any amendment and supplement of this Agreement shall be in a written form. The amendment and supplement after being duly executed by each Party shall be part of this Agreement and shall have the same legal effect as this Agreement.
8.3 This Agreement is executed by Chinese in quadruplicate and each party holds one copy, which shall have the same legal effect.
IN WITNESS WHEREOF the parties hereto have caused this Agreement to be duly executed on their behalf by a duly authorized representative as of the Date first written above.
Party A: eLongNet Information Technology (Beijing) Co., Ltd.
| Signature of Authorized Representative: |
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| Official Seal: |
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Party B: Beijing eLong Information Technology Co., Ltd
| Signature of Authorized Representative: |
/s/ | |
| Official Seal: |
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Party C: Xxxxxx Xxxx
| Signature: |
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Party D: Xxxxxxxx Xxxx
| Signature: |
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Party E: Xxxxxxx Xxxxx
| Signature: |
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