Exclusive Business Cooperation Agreement
This
Exclusive Business Cooperation Agreement (this "Agreement") is made and entered
into by and between the following Parties on December 20, 2007 in Jinan, the
People's Republic of China (“China” or the “PRC”).
|
Party A:
|
Trunkbow
Asia Pacific (Shandong) Co., Ltd, a Company organized and existing under
the laws of the PRC, with its address at the sixth floor, Main building,
Xxxxxx Technology Industrial Zone, Yingxiu Road, Hi-tech Development
District, Jinan;
|
|
Party B:
|
Trunkbow
Technologies (Shenzhen) Co., Ltd., a limited liability company organized
and existing under the laws of the PRC, with its address at 25E, East
Building, Guangye Center, Fuhua Road, Futian District,
Shenzhen.
|
Each of
Party A and Party B shall be hereinafter referred to as a "Party" respectively,
and as the "Parties" collectively.
Whereas,
|
1.
|
Party
A is a wholly-foreign-owned enterprise established in China, and has the
necessary resources to provide technical development and economic
information consulting services;
|
|
2.
|
Party
B is a company with exclusively domestic capital registered in China and
may engage in technology development and sales of computer system
software, communication products, electronic and electrical products as
well as economic information
consulting;
|
|
3.
|
Party
A is willing to provide Party B with exclusive technology development and
economic information consulting and other services during the term of this
Agreement utilizing its own advantages in human resources, technology and
information, and Party B is willing to accept such services provided by
Party A or Party A's designee(s), each on the terms set forth
herein.
|
Now,
therefore, through mutual discussion, the Parties have reached the following
agreements:
|
1.
|
Services Provided by Party
A
|
|
|
1.1
|
Party
B hereby appoints Party A as Party B's exclusive services provider to
provide Party B with complete business support services and consulting
services during the term of this Agreement, in accordance with the terms
and conditions of this Agreement, which services may include all services
within the business scope of Party B as may be determined from time to
time by Party A, such as but not limited to technical services, business
consultations, equipment or property leasing, marketing consultancy,
system integration, product research and development, and system
maintenance.
|
|
|
1.2
|
Party
B agrees to accept all the consultations and services provided by Party A.
Party B further agrees that unless with Party A's prior written consent,
during the term of this Agreement, Party B shall not accept any
consultations and/or services provided by any third party and shall not
cooperate with any third party regarding the matters contemplated by this
Agreement. Party A may appoint other parties, who may enter into certain
agreements described in Section 1.3 with Party B, to provide Party B with
the consultations and/or services under this Agreement.
|
1
1.3 Service
Providing Methodology
|
|
1.3.1
|
Party
A and Party B agree that during the term of this Agreement, both Parties,
directly or through their respective affiliates, may enter into further
technical service agreements or consulting service agreements, which shall
provide the specific contents, manner, personnel, and fees for the
specific technical services and consulting
services.
|
|
|
1.3.2
|
To
fulfill this Agreement, Party A and Party B agree that during the term of
this Agreement, both Parties, directly or through their respective
affiliates, may enter into equipment or property leases which shall permit
Party B to use Party A's relevant equipment or property based on the needs
of the business of Party B.
|
|
2.
|
The Calculation and Payment of
the Service Fees
|
Both
Parties agree that, in consideration of the services provided by Party A, Party
B shall pay to Party A the fees (the “Service Fees”) equal to 100% of the net
income of Party B, provided that upon mutual discussion between the Parties and
the prior written consent by Party A, the rate of Service Fees may be adjusted
based on the services rendered by Party A in that month and the operational
needs of Party B. The Service Fees shall be due and payable on a
monthly basis; within 30 days after the end of each month, Party B
shall (a) deliver to Party A the management accounts and operating statistics of
Party B for such month, including the net income of Party B during such month
(the “Monthly Net Income”), and (b) pay 100% of such Monthly Net Income, or
other amount agreed by Party A, to Party A (each such payment, a “Monthly
Payment”). Within ninety (90) days after the end of each fiscal year,
Party B shall (a) deliver to Party A audited financial statements of Party B for
such fiscal year, which shall be audited and certified by an independent
certified public accountant approved by Party A, and (b) pay an amount to Party
A equal to the shortfall, if any, of the net income of Party B for such fiscal
year, as shown in such audited financial statements, as compared to the
aggregate amount of the Monthly Payments paid by Party B to Party A in such
fiscal year.
|
3.
|
Intellectual Property Rights
and Confidentiality Clauses
|
|
|
3.1
|
Party
A shall have exclusive and proprietary rights and interests in all rights,
ownership, interests and intellectual properties arising out of or created
during the performance of this Agreement, including but not limited to
copyrights, patents, patent applications, software, technical secrets,
trade secrets and others.
|
2
|
|
3.2
|
The
Parties acknowledge that any oral or written information exchanged among
them with respect to this Agreement is confidential information. Each
Party shall maintain the confidentiality of all such information, and
without obtaining the written consent of the other Party, it shall not
disclose any relevant information to any third parties, except in the
following circumstances: (a) such information is or will be in the public
domain (provided that this is not the result of a public disclosure by the
receiving Party); (b) information disclosed as required by applicable laws
or rules or regulations of any stock exchange; or (c) information required
to be disclosed by any Party to its legal counsel or financial advisor
regarding the transaction contemplated hereunder, and such legal counsel
or financial advisor are also bound by confidentiality duties similar to
the duties in this Section. Disclosure of any confidential information by
the staff members or agencies hired by any Party shall be deemed
disclosure of such confidential information by such Party, which Party
shall be held liable for breach of this Agreement. This Section shall
survive the termination of this Agreement for any
reason.
|
|
|
3.3
|
The
Parties agree that this Section shall survive changes to, and rescission
or termination of, this Agreement.
|
4. Representations and
Warranties
|
|
4.1
|
Party
A hereby represents and warrants as
follows:
|
|
|
4.1.1
|
Party
A is a company legally registered and validly existing in accordance with
the laws of China.
|
|
|
4.1.2
|
Party
A's execution and performance of this Agreement is within its corporate
capacity and the scope of its business operations; Party A has taken
necessary corporate actions and given appropriate authorization and has
obtained the consent and approval from third parties and government
agencies, and will not violate any restrictions in law or otherwise
binding or having an impact on Party
A.
|
|
|
4.1.3
|
This
Agreement constitutes Party A's legal, valid and binding obligations,
enforceable in accordance with its
terms.
|
|
|
4.2
|
Party
B hereby represents and warrants as
follows:
|
|
|
4.2.1
|
Party
B is a company legally registered and validly existing in accordance with
the laws of China;
|
|
|
4.2.2
|
Party
B's execution and performance of this Agreement is within its corporate
capacity and the scope of its business operations; Party B has taken
necessary corporate actions and given appropriate authorization and has
obtained the consent and approval from third parties and government
agencies, and will not violate any restrictions in law or otherwise
binding or having an impact on Party
B.
|
|
|
4.2.3
|
This
Agreement constitutes Party B's legal, valid and binding obligations, and
shall be enforceable against it.
|
5. Effectiveness and
Term
|
|
5.1
|
This
Agreement is executed on the date first above written and shall take
effect as of such date. Unless earlier terminated in accordance with the
provisions of this Agreement or relevant agreements separately executed
between the Parties, the term of this Agreement shall be 10 years. After
the execution of this Agreement, both Parties shall review this Agreement
every 3 months to determine whether to amend or supplement the provisions
in this Agreement based on the actual circumstances at that
time.
|
3
|
|
5.2
|
The
term of this Agreement may be extended if confirmed in writing by Party A
prior to the expiration thereof. The extended term shall be determined by
Party A, and Party B shall accept such extended term
unconditionally.
|
6. Termination
|
|
6.1
|
Unless
renewed or earlier terminated in accordance with the relevant terms of
this Agreement, this Agreement shall be terminated upon the date of
expiration hereof.
|
|
|
6.2
|
During
the term of this Agreement, unless Party A commits gross negligence, or a
fraudulent act, against Party B, Party B shall not terminate this
Agreement prior to its expiration date. Nevertheless, Party A shall have
the right to terminate this Agreement upon giving 30 days' prior written
notice to Party B at any time.
|
|
|
6.3
|
The
rights and obligations of the Parties under Articles 3, 6.3, 7 and 8 shall
survive the termination of this
Agreement.
|
7. Governing Law and Resolution of
Disputes
|
|
7.1
|
The
execution, effectiveness, construction, performance, amendment and
termination of this Agreement and the resolution of disputes hereunder
shall be governed by the laws of
China.
|
|
|
7.2
|
In
the event of any dispute with respect to the construction and performance
of the provisions of this Agreement, the Parties shall negotiate in good
faith to resolve the dispute. In the event the Parties fail to reach an
agreement on the resolution of such a dispute within 30 days after any
Party's request for resolution of the dispute through negotiations, either
Party may submit the relevant dispute to the China International Economic
and Trade Arbitration Commission for arbitration, in accordance with its
then-effective arbitration rules. The arbitration shall be conducted in
Beijing, and the language used during arbitration shall be Chinese. The
arbitration ruling shall be final and binding on both
Parties.
|
|
|
7.3
|
Upon
the occurrence of any disputes arising from the construction and
performance of this Agreement or during the pending arbitration of any
dispute, except for the matters under dispute, the Parties to this
Agreement shall continue to exercise their respective rights under this
Agreement and perform their respective obligations under this
Agreement.
|
8. Indemnification
Party B
shall indemnify and hold harmless Party A from any losses, injuries, obligations
or expenses caused by any lawsuit, claims or other demands against Party A
arising from or caused by the consultations and services provided by Party A at
the request of Party B, except where such losses, injuries, obligations or
expenses arise from the gross negligence or willful misconduct of Party
A.
4
9. Force Majeure
|
|
9.1
|
"An
Event of Force Majeure" means an event which is unforeseen, unavoidable
and insurmountable, and includes, but is not limited to, acts by
government, natural force, fire, explosions, geographic changes, storm,
flood, earthquake, tide, lightning or wars. However, the deficiencies of
qualifications, funds or financing can not be deemed an event beyond one
party's reasonable control. The party that is affected by "An Event of
Force Majeure" and seeks to exempt the performance of responsibilities
under the provisions of this Agreement shall notify the other party the
exemption of responsibility as soon as
possible.
|
|
|
9.2
|
When
performance of this Agreement is delayed or prevented by "An Event of
Force Majeure" defined hereinbefore, the affected party need not assume
any responsibilities set forth in this Agreement only to the part of the
delayed or prevented performance, and only if the affected party uses
reasonable and practical endeavors to perform this Agreement, the party
that seeks to exempt his responsibilities may get the exemption of
performance which is limited in the delayed or prevented part. Once the
reasons of this exemption are rectified and remedied, the parties agree to
make the greatest efforts to resume performance of this
Agreement.
|
10. Notices
|
|
10.1
|
All
notices and other communications required or permitted to be given
pursuant to this Agreement shall be delivered personally or sent by
registered mail, postage prepaid, by a commercial courier service or by
facsimile transmission to the address of such Party set forth
below. A confirmation copy of each notice shall also be sent by
email. The dates on which notices shall be deemed to have been
effectively given shall be determined as
follows:
|
|
|
10.1.1
|
Notices
given by personal delivery, by courier service or by registered mail,
postage prepaid, shall be deemed effectively given on the date of delivery
or refusal at the address specified for
notices.
|
|
|
10.1.2
|
Notices
given by facsimile transmission shall be deemed effectively given on the
date of successful transmission (as evidenced by an automatically
generated confirmation of
transmission).
|
|
|
10.2
|
For
the purpose of notices, the addresses of the Parties are as
follows:
|
Party
A: Trunkbow Asia Pacific(Shandong) Co., Ltd
Attn: Xxxx
XXX
Phone:0000-000-00000000
Facsimile:0000-000-00000000
E-mail:
xxxxxxx@xxxxxxxx.xxx
5
Party
B: Trunkbow Technologies （Shenzhen） Co.,
Ltd.
Address: 25E,
East Building, Guangye Center, Fuhua Road, Futian District,
Shenzhen.
Attn: Xx
XXXXX
Phone:
0000-000-00000000
Facsimile:
0000-000-00000000
E-mail:
xxxxxxx@xxxxxxxx.xxx
|
|
10.3
|
Any
Party may at any time change its address for notices by a notice delivered
to the other Party in accordance with the terms
hereof.
|
11. Assignment
|
|
11.1
|
Without
Party A's prior written consent, Party B shall not assign its rights and
obligations under this Agreement to any third
party.
|
|
|
11.2
|
Party
B agrees that Party A may assign its obligations and rights under this
Agreement to any third party upon a prior written notice to Party B but
without the consent of Party B.
|
12. Severability
In the
event that one or several of the provisions of this Agreement are found to be
invalid, illegal or unenforceable in any aspect in accordance with any laws or
regulations, the validity, legality or enforceability of the remaining
provisions of this Agreement shall not be affected or compromised in any aspect.
The Parties shall strive in good faith to replace such invalid, illegal or
unenforceable provisions with effective provisions that accomplish to the
greatest extent permitted by law and the intentions of the Parties, and the
economic effect of such effective provisions shall be as close as possible to
the economic effect of those invalid, illegal or unenforceable
provisions.
13. Amendments and
Supplements
Any
amendments and supplements to this Agreement shall be in writing. The amendment
agreements and supplementary agreements that have been signed by the Parties and
that relate to this Agreement shall be an integral part of this Agreement and
shall have the same legal validity as this Agreement.
14. Language and
Counterparts
This
Agreement is written in both Chinese and English language in two copies, each
Party having one copy with equal legal validity; in case there is any conflict
between the Chinese version and the English version, the Chinese version shall
prevail.
6
The
Remainder of this page is intentionally left blank
IN
WITNESS WHEREOF, the Parties have caused their authorized representatives to
execute this Exclusive Business Cooperation Agreement as of the date first above
written.
Party
A: Trunkbow
Asia Pacific(Shandong) Co., Ltd
|
By:
|
/s/
Xxxxxxx XXX
|
|
|
Name:
|
Xxxxxxx
XXX
|
|
|
Title:
|
Legal
Representative
|
Party
B: Trunkbow
Technologies (Shenzhen) Co., Ltd.
|
By:
|
/s/
Xxxxxxx XXX
|
|
|
Name:
|
Xxxxxxx
XXX
|
|
|
Title:
|
Legal
Representative
|
7
