Exclusive Business Cooperation Agreement
Exhibit 4.11
This Exclusive Business Cooperation Agreement (this “Agreement”) is made and entered into by
and between the following parties on June 23 2008 in Beijing, the People’s Republic of China
(“China” or the “PRC”).
Party A:
|
Ku6 (Beijing) Technology Co., Ltd. | |
Address:
|
Room A402, Great Wall Computer Tower, No. Jia 38,
Xueyuan Road, Haidian District, Beijing |
|
Party B:
|
Ku6 (Beijing) Information Technology Co., Ltd. | |
Address:
|
Room A401, Great Wall Computer Tower, No. Jia
38, Xueyuan Road, Haidian District, Beijing |
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 and consulting services; |
| 2. | Party B is a company with exclusively domestic capital registered in China, engaging in the
value-added telecommunication services as approved by the relevant governmental authorities in
China (collectively, the “Principal Business”); |
| 3. | Party A and Party B entered into an Exclusive Business Cooperation Agreement dated April 11,
2007 (the “Original Exclusive Business Cooperation Agreement”), and the Parties now wish to
amend certain provisions of the Original Exclusive Business Cooperation Agreement by executing
this Agreement, which shall supersede and replace the Original Exclusive Business Cooperation
Agreement upon execution; |
| 4. | Party A is willing to provide Party B with technical support, consulting services and other
commercial services on exclusive basis in relation to the Principal Business during the term
of this Agreement, utilizing its advantages in technology, human resources, 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 technical support, business support and related consulting
services during the term of this Agreement, in accordance with the terms and conditions
of this Agreement, which may include all necessary services within the scope of the
Principal Business as may be determined from time to time by Party A, such as but not
limited to technical services, business consultations, equipment or property usage,
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 directly or indirectly accept the same or any
similar consultations and/or services provided by any third party and shall not
establish similar corporation relationship 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. |
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| 1.3 | Service Providing Methodology |
| 1.3.1 | Party A and Party B agree that during the term of this Agreement,
where necessary, Party B may enter into further technical service agreements or
consulting service agreements with Party A or any other party designated by Party
A, 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, where necessary, Party B may enter into other agreements
with Party A or any other party designated by Party A based on the needs of the
business of Party B. |
| 1.3.3 | Party B hereby grants to Party A an irrevocable and exclusive option
to purchase from Party B, at Party A’s sole discretion, any or all of the assets
of Party B, to the extent permitted under the PRC laws, at the lowest purchase
price permitted by the PRC laws. In this case, the Parties shall enter into a
separate assets transfer agreement, specifying the terms and conditions of the
transfer of the assets. |
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| 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 Party A fees (the “Service Fees”) equal to 100% of the net income of Party B.
The Service Fees shall be due and payable on a monthly basis; upon the prior written
consent by the board of directors of Party A, the rate of Service Fees may be adjusted
pursuant to the operational needs of Party B. 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 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. Party B shall
execute all appropriate documents, take all appropriate actions, submit all filings
and/or applications, render all appropriate assistance and otherwise conduct whatever is
necessary as deemed by Party A in its sole discretion for the purposes of vesting any
ownership, right or interest of any such intellectual property rights in Party A, and/or
perfecting the protections for any such intellectual property rights in Party A. |
| 3.2 | The Parties acknowledge that the existence and the terms of this Agreement and
any oral or written information exchanged between the Parties in connection with the
preparation and performance this Agreement are regarded as confidential information.
Each Party shall maintain confidentiality of all such confidential information, and
without obtaining the written consent of the other Party, it shall not disclose any
relevant confidential information to any third parties, except for the information that:
(a) is or will be in the public domain (other than through the receiving Party’s
unauthorized disclosure); (b) is under the obligation to be disclosed pursuant to the
applicable laws or regulations, rules of any stock exchange, or orders of the court or
other government authorities; or (c) is required to be disclosed by any Party to its
shareholders, investors, legal counsels or financial advisors regarding the transaction
contemplated hereunder, provided that such shareholders, investors, legal counsels or
financial advisors shall be bound by the
confidentiality obligations similar to those set forth 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. |
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| 4. | Representations and Warranties |
| 4.1 | Party A hereby represents and warrants as follows: |
| 4.1.1 | Party A is a wholly owned foreign enterprise legally registered and
validly existing in accordance with the laws of China. |
| 4.1.2 | Party A has taken all necessary corporate actions, obtained all
necessary authorization and the consent and approval from third parties and
government agencies (if any) for the execution and performance of this Agreement.
Party A’s execution and performance of this Agreement do not violate any explicit
requirements under any law or regulation binding 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 and has obtained the relevant permit and license
for engaging in the Principal Business in a timely manner; |
| 4.2.2 | Party B has taken all necessary corporate actions, obtained all
necessary authorization and the consent and approval from third parties and
government agencies (if any) for the execution and performance of this Agreement.
Party B’s execution and performance of this Agreement do not violate any explicit
requirements under any law or regulation binding on Party A. |
| 4.2.3 | This Agreement constitutes Party B’s legal, valid and binding
obligations, and shall be enforceable against it. |
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| 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. |
| 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 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, 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. |
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| 7.2 | In the event of any dispute with respect to the construction and performance of
this Agreement, the Parties shall first resolve the dispute through friendly
negotiations. In the event the Parties fail to reach an
agreement on the dispute within 30 days after either Party’s request to the other
Parties 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 Arbitration Rules. The
arbitration shall be conducted in Beijing, and the language used in arbitration
shall be Chinese. The arbitration award shall be final and binding on all 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 to Party B pursuant this
Agreement, except where such losses, injuries, obligations or expenses arise from the gross
negligence or willful misconduct of Party A.
| 9. | Notices |
| 9.1 | 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: |
| 9.1.1 | 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. |
| 9.1.2 | 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). |
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| 9.2 | For the purpose of notices, the addresses of the Parties are as follows: |
| Party A: | Ku6 (Beijing) Technology Co., Ltd. | |||
| Address: | Room A402, Great Wall Computer Tower, No. Jia 38, Xueyuan Road, Haidian District, Beijing |
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| Attn: | Shanyou Li | |||
| Phone: | 000-00000000 | |||
| Facsimile: | 010- 62368882 | |||
| Party B: | Ku6 (Beijing) Information Technology Co., Ltd. | |||
| Address: | Room A401, Great Wall Computer Tower, No. Jia 38, Xueyuan Road, Haidian District, Beijing |
|||
| Attn: | Shanyou Li | |||
| Phone: | 000-00000000 | |||
| Facsimile: | 010-62682916 |
| 9.3 | 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. |
| 10. | Assignment |
| 10.1 | Without Party A’s prior written consent, Party B shall not assign its rights and
obligations under this Agreement to any third party. |
| 10.2 | 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. |
| 11. | 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.
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| 12. | Entire Agreement |
Except for the amendments, supplements or changes in writing executed after the execution of
this Agreement, this Agreement, together with all the exhibits hereto and thereto, shall
constitute and contain the entire agreement and understanding of the parties with respect to
the subject matter hereof and supersedes any and all prior negotiations, correspondence,
agreements, understandings, duties or obligations between the parties respecting the subject
matter hereof. Without limiting the generality of the foregoing, this Agreement supersedes,
in its entirety, the Original Exclusive Business Cooperation Agreement relating to the
matters set forth herein, which shall be null and void and have no force or effect whatsoever
as of the date of this Agreement.
| 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.
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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: Ku6 (Beijing) Technology Co., Ltd. | ||||
By: |
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| Title: Legal Representative | ||||
| Party C: Ku6 (Beijing) Information Technology Co., Ltd. | ||||
By: |
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| Title: Legal Representative | ||||
