This document has been translated for information purposes only; the Chinese text is the only valid document.
This
document has been translated for information purposes only; the Chinese text is
the only valid document.
Exhibit
4.8
Fujian
WangGang Dredging Construction Co., Ltd.
Wonder
Dredging LLC.
Fujian
Xing Gang Port Service Co., Ltd.
(Unoffical Translation)
1
This
document has been translated for information purposes only; the Chinese text is
the only valid document.
Contracted
Management Agreement made the 30th day of June, 2010 (the “Agreement”),
among:
Fujian WangGang Dredging Construction
Co., Ltd. The WOFE “the “WOFE”), Whose legal representative is
XXX Xxxx, at 00xx Xxxxx, Xxxxxxxxx Xxxxx, 000 Xxxxxx Xxxx, Xxxxxx Xxxx,
Xxxxxx.
Wonder Dredging LLC. (“Wonder
Dredging”), whose legal representative is XXX Xxxx, at 1705 of 00xx Xxxxx,
Xxxxxxxxx Xxxxx A, 000 Xxxxxx Xxxx, Xxxxxx Xxxx, Xxxxxx.
Fujian Xing Gang Port Service Co.,
Ltd. (“Fujian Xing Gang” ), whose legal representative is XXX Xxxx, at
00xx Xxxxx, Xxxxxxxxx Xxxxx A, 000 Xxxxxx Xxxx, Xxxxxx Xxxx,
Xxxxxx.
As used
in this Agreement, The WOFE, Wonder Dredging and Fujian Xing Gang are
collectively referred to herein as the “Parties to the Contract”.
Whereas
A. The WOFE is a
foreign-invested limited liability company duly incorporated and existing under
the laws of the People’s Republic of China (the “PRC”), with expertise
in the management of operating companies;
B. Wonder
Dredging is a limited liability company duly incorporated and existing under the
laws of the PRC,
2
This
document has been translated for information purposes only; the Chinese text is
the only valid document.
C. Fujian
Xing Gang is a limited liability company duly incorporated and existing under
the laws of the PRC, specializing in dredging port
and waterways.
D. Each
of The WOFE and Wonder Dredging holds a fifty percent (50%) equity interest in
Fujian Xing Gang
NOW
THEREFORE the Parties agree as follows:
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1.
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Contracted Management;
Effective Date
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1.1
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Pursuant
to the terms and conditions of the Agreement, the Parties agree to engage
the WOFE to manage the operations of Fujian Xing Gang. During
the term of contracted management, the WOFE and/or the senior officers
employed by the WOFE (the “Officers”) shall take
full charge of the business operations of Fujian Xing
Gang.
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1.2
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The
Parties agree and confirm that from the date of this Agreement set forth
in the first paragraph of this Agreement (“Effective Date”), the WOFE
and/or the Officers shall take full charge of the business operation of
Fujian Xing Gang, running and managing the business of Fujian
Xing Gang in accordance with the laws, administrative rules and
regulations and the covenants applicable to this
Agreement.
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1.3
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This
Agreement is an exclusive contracted management agreement. During the
period from Effective Date to the date that this Agreement is terminated,
Fujian Xing Gang agree not to contract its business to any
other party for management, and each of Wonder Dredging
and Fujian Xing Gang hereby agree not to interfere with the
business operations conducted by the
WOFE.
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3
This
document has been translated for information purposes only; the Chinese text is
the only valid document.
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2.
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Term
of the Contracted Management (the
“Term”)
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2.1
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This
Agreement shall be terminate upon the earlier
of:
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(1)
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such
time that the the WOFE or another person designated by the WOFE (the
“Designated Person” ) exercises the exclusive right to purchase the equity
interest in Fujian Xing Gang in accordance with the terms of the Contract
Relating to the Exclusive Purchase Right of the Equity Interest Agreement
(the “Purchase Agreement”) signed by the Parties dated as of June 30,
2010, and
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(2)
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The
WOFE and/or the Designated Person individually/jointly own all of the
equity interests in Fujian Xing Gang;
or
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(3)
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20
years from the Effective Date, subject to the right of the WOFE, at its
sole option, to renewthe term of this Agreement for successive
20 year periods prior to the expiration of each 20 year period upon prior
written notice to Wonder Dredging and Fujian Xing
Gang.
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3.
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Calculation
and Payment of the Fees for the Contracted Management (the
“Fees”);
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3.1
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The
parties agree that the WOFE shall, in consideration of the exclusive right
to manage the business operations of Fujian Xing Gang, pay an annual fee
of RMB 1 million in to Fujian Xing Gang. Such payment shall be
madewithin the first month of every applicable year. The WOFE
may disburse such payment from the account of Fujian Xing
Gang. Party C's Executive Director or Board to make resolution
to determine the contracted management fees for the current year within
the first month of the year.
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4
This
document has been translated for information purposes only; the Chinese text is
the only valid document.
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3.2
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During
the term of the contracted management, the WOFE is entitled to 100% of the
net profits (the gross profits minus the costs and expenses, including the
tax payable all as determined in accordance with US generally accepted
accounting principles) reported by Fujian Xing Gang (the “Net
Profits”). Fujian Xing Gang shall adopt a resolution by the Executive
Director or the Board of Directors within the first month of every
contracted management year to confirm the plan for the fees disbursal of
that year.
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3.3
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The
Parties to this Agreement shall pay all their tax liabilities pursuant to
all the existing and effective taxation laws and administrative rules and
regulations in PRC.
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4.
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Delivery
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4.1
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Within five
working days from the Effective Date, Wonder Dredging and Fujian Xing Gang
shall deliver the documents set forth in 4.2 to the WOFE in order that the
WOFE can perform the contracted management services to Fujian Xing
Gang pursuant to the terms of this
Agreement.
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4.2
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At
the request of the WOFE, Wonder Dredging and Fujian Xing Gang shall
deliver copies of the following documents to the
WOFE:
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(1)
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all
the ownership certificates in the name of Fujian Xing Gang or any
affiliated party which relate to the business operations of Fujjian Xing
Gang, including but not limited to the Ownership Registry Certificates of
the ships and Certificates of Nationality of the ships,
and
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5
This
document has been translated for information purposes only; the Chinese text is
the only valid document.
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(2)
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all
the business permits and licenses and other related documents held by
Fujian Xing Gang, and
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(3)
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all
the financial seals and accounting books and records of Fujian Xing Gang,
and
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(4)
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the
technical data related to the business operations of Fujian Xing Gang,
and
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(5)
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the
management data related to the business operations of Fujian Xing Gang,
and
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(6)
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All
the related documents which are necessary in order for the WOFE to
effectively manage the business of Fujian Xing Gang commencing on the
Effective Date.
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5.
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The
WOFE’s Rights and Obligations
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5.1
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The
WOFE’s rights. During the Term of this Agreement the WOFE shall have the
right to:
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5.1(1)
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manage
and control the business and assets of Fujian Xing Gang in its sole
discretion. The right of management includes, but not limited to, the
rights of (1) establishing and implementing the policies and guidelines of
the management, and (2) directing the use of all of the assets of Fujian
Xing Gang, including but not limited to, the real property, intangible
property and working capital.
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5.1(2)
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designate
the directors to Fujian Xing Gang and replace the directors of Fujian Xing
Gang and all its affiliates at any time in its sole
discretion.
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6
This
document has been translated for information purposes only; the Chinese text is
the only valid document.
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5.1(3)
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appoint
the managing officers to Fujian Xing Gang, including the general manager,
deputy general manager and or other senior officers and the financial
controller.
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5.1(4)
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to
delineate the organizational structure of the Fujian Xing Gang and employ
any technical personnel required for the business of Fujian
Xing Gang.
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5.1(5)
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establish
Fujian Xing Gang’s employer-employee arrangements including but not
limited to, rewards and punishment, dismissal, wages, all in accordance
with the relevant laws and administrative rules and regulations, with
approval by the board of directors of Fujian Xing Gang and all its
subsidiaries.
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5.1(6)
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take
a loan directly or cause Fujian Xing Gang or its affiliates to borrow
funds, with prior notice to Wonder Dredging, , provided that
the loan shall be used for the operation and management of Fujian Xing
Gang.
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5.1(7)
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receive
100% of the Net Profits of Fujian Xing
Gang.
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5.1(8)
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exercise
all other customary powers and duties associated with the management
authority and responsibilities contemplated
hereby.
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5.2
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The
WOFE’s Obligations
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5.2(1)
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The
WOFE shall operate the business of Fujian Xing Gang as contractor
according to this
Agreement.
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7
This
document has been translated for information purposes only; the Chinese text is
the only valid document.
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5.2(2)
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The
WOFE will operate and manage the business and assets of Fujian Xing Gang
in accordance and compliance with applicable laws and
regulations.
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5.2(3)
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The
WOFE shall repair, maintain, renovate and purchase new assets to ensure
that Fujian Xing Gang’s business is operated and managed in good status.
The cost for such repair, maintenance, renovation and purchase will be
borne by Fujian Xing Gang.
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.6.
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Wonder Dredging and Fujian Xing
Gang’s Obligations
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6.1(1)
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Wonder
Dredging and Fujian Xing Gang shall assist the WOFE in carrying out the
contracted management in accordance with the terms of this
Agreement. Wonder Dredging agrees to execute a Power of
Attorney granting the WOFE certain rights, including full voting power
over its equity interest in Fujian Xing
Gang.
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6.1(2)
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Without
the WOFE’s written consent, Wonder Dredging and Fujian Xing Gang
shall not directly or indirectly dispose of the assets of
Fujian Xing Gang by mortgage, pledge, assignment or any other
methods.
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6.1(3)
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Wonder
Dredging and Fujian Xing Gang shall not interfere with the WOFE’s control
and management of the operations of Fujian Xing
Gang..
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6.
2(4)
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Each
of Wonder Dredging and Fujian Xing Gang agrees that Wonder Dredging will
continue to maintain the legal ownership of the equity interest in Fujian
Xing Gang until such equity interest has been purchased by the WOFE or the
Designated Person in accordance with the terms of the Purchase
Agreement.
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8
This
document has been translated for information purposes only; the Chinese text is
the only valid document.
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7.
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Representation,
Warranties and Promises
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7.1
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Representation,
Warranties and Promises by The WOFE hereby represents and warrants
that
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7.1(1)
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It
has the right and ability to sign and perform this Agreement. The
Agreement is binding on the WOFE in accordance with its
terms.
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7.1(2)
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It
has taken such appropriate and necessary action to authorize the
appropriate persons to sign and execute and perform the obligations under
this Agreement and obtained any necessary approvals and
authorizations.
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7.1(3)
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Its
execution and performance of this Agreement does not violate any laws or
administrative rules and regulations, or any agreements or any covenants
with a third party.
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7.1(4)
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All
the materials provided by it and its legal representatives and all other
authorized persons are authentic and
accurate.
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7.2
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Representation, Warranties and
Promises by Wonder Dredging and Fujian Xing Gang. Each of
Wonder Dredging and Fujian Xing Gang represent and warrants
that
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7.2(1)
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They
are limited liability companies duly incorporated and validly existing
under the laws of PRC. They have the rights and abilities to sign and
execute and perform this Agreement. This Agreement is binding on them in
accordance with its
terms.
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9
This
document has been translated for information purposes only; the Chinese text is
the only valid document.
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7.2(2)
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They
have authorized the appropriate persons to sign and execute and perform
the obligations under this Agreement and obtained any necessary approvals
and authorizations.
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7.2(3)
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Their
execution and performance of this Agreement does not violate any laws or
administrative rules and regulations, which is binding upon it, nor does
such execution and performance violate any agreement to which it is a
party, or any covenant with any third
party.
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7.2(4)
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All
the materials provided by them and their legal representatives and all
other authorized persons are authentic and
accurate..
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7.2(5)
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Wonder
Dredging has full authority to enter into this Agreement to engage the
services of the WOFE for the management of the business operations of
Fujian Xing Gang.
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7.2(6)
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Prior
to (including) the Effective Date, the assets of Fujian Xing Gang are in
good working condition.
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8.
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Modification and
Assignment
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8.1
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Any
modifications to this Agreement must be in writing signed by the Parties
after negotiation.
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10
This
document has been translated for information purposes only; the Chinese text is
the only valid document.
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8.2
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Wonder
Dredging and Fujian Xing Gang irrevocably agree and promise that the WOFE
is entitled, in its sole discretion, to assign or partly assign all the
rights and obligations under this Agreement to any other party designated
by the WOFE, without the consent, of any other Party and agrees to notify
the other Parties of such assignment,
..
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8.3
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Each
of Wonder Dredging and Fujian Xing Gang irrevocably agrees and
promises that the WOFE is entitled to, in its sole discretion, dissolve
this Agreement by notifying them without their
consent.
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9.
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Liabilities
for Breach of the Agreement and the Termination of the
Agreement
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9.1
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Unless
otherwise stipulated under this Agreement, in case of any loss sustained
by one Party hereto due to any breach of this Agreement by the other
Party(s), the breaching Party shall bear legal liabilities according to
the law and be liable for all losses sustained by the non-defaulting
party(s) due to such breach.
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9.2
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The
Parties agree that the liabilities for breach of the Agreement are
compensatory and shall not exceed the losses sustained by the
non-defaulting party(s)
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9.3
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This
Agreement may be terminated in the occurrence of any of the following
events:
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(1)
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this
Agreement is terminated in accordance with its terms;
or
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(2)
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pursuant
to Section 8.3 hereof.
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9.4
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According
to Section 8.3, the WOFE has the right to terminate this Agreement by
delivering written notice to Wonder Dredging and Fujian Xing Gang. In such
event, this Agreement will terminate without penalty upon the delivery of
the written notice to Wonder Dredging and Fujian Xing
Gang.
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11
This
document has been translated for information purposes only; the Chinese text is
the only valid document.
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9.5
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Excepted
as set forth in Section 8.3 in this Agreement, no Party shall dissolve
this Agreement in its sole discretion, nor shall any party interfere with
the normal execution and performance of this Agreement by the other
party(s).
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10.
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Force
Majeure
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10.1
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No
party shall be liable if it is delayed or prevented from performing its
obligations under this Agreement by Force Majeure. Force Majeure means
acts of nature, fire, earthquake, war and political turmoil, and any other
event that is beyond the party’s reasonable control and cannot be
prevented with reasonable
care.
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10.2
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When
the event of Force Majeure arises, the affected party shall inform the
other Parties within 15 business days. The affected party which does not
perform the obligations under this Agreement shall be responsible for any
damage caused by failure of informing other parties. After the event of
Force Majeure is removed, the affected party shall resume performance of
this Agreement with its best
efforts.
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11.
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Governing
Laws and Settlement of the
Disputes
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11.1
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The
execution, validity, performance, interpretation and settlement of
disputes shall be governed by PRC
laws.
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11.2
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If
any disputes arise out of performance of this Agreement, the Parties shall
first settle such disputes through friendly negotiations. Should such
disputes fail to be settled through negotiation within 20 days after the
disputes arises, each Party may submit such disputes to the court with
jurisdiction.
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12
This
document has been translated for information purposes only; the Chinese text is
the only valid document.
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12.
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Miscellaneous
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12.1
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The
parties to the Agreement agree that all the business materials relating to
the performance of the Agreement are confidential and shall not be
disclosed to a third party unless the disclosure of materials is required
by the laws or administration rules and regulations of PRC or by
supervising authority. Notwithstanding the foregoing, the
Parties acknowledge that this Agreement can be filed with the Securities
and Exchange Commission in the United
States.
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12.2
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Notices
or other communications required to be given by any party pursuant to this
Agreement shall be written. Any party should inform the other parties if
his address, contact number or fax number have been changed. If a Party
fails to inform the other Parties of its contact information, the notice
will deemed to be duly served when it is delivered to the prior address or
fax number known by other
Parties.
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12.3
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Should
all or any part of any provision hereof be held void by the court with
jurisdiction or the relevant authority, then such part of the provision
shall be deemed to have been deleted; provided that, such deletion shall
in no way affect the legal force of any other part of the provisions or
any other provision hereof.
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12.4
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The
amendments (if any) duly executed by the Parties shall be part of this
Agreement and shall have the same legal effect as this
Agreement.
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12.5
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This
Agreement is made in six (6) originals in Chinese, of which each Party
shall hold two. Each original has the same
validity.
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13
This
document has been translated for information purposes only; the Chinese text is
the only valid document.
[Blank
below]
[Page for
signatures]
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Fujian
WangGang Dredging Construction
Co.,
Ltd. /seal/
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By
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Name:
/s/ LIN Bin
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Title:
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Wonder
Dredging LLC.
/seal/
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By
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Name:
/s/ XXX Xxxx
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Title:
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14
This
document has been translated for information purposes only; the Chinese text is
the only valid document.
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Fujian
Xing Gang Port Service Co., Ltd.
/seal/
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By
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Name:
/s/ XXX Xxxx
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Title:
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15
