Business Operations Agreement
Exhibit 10.5
This Business Operations Agreement (the “Agreement”) is made and entered into by and
between the following parties (the “Parties”) in Beijing on June 5, 2007.
Party A: NetQin Mobile (Beijing) Technology Co., Ltd. (“NetQin Beijing”)
Address: Xxxx 0000-0, Xxxxxxxx 0-X, Xxxxxxxxxx Incubator, Zhongguancun Software Industrial Park, Dongbeiwang, Haidian District, Beijing, China
Legal Representative: Xxx Xx
Party B: Beijing NetQin Technology Co.,Limited (“NetQin Technology” or the
“Company”)
Address: Room 1322, Building 1-C, Enterprise Incubator, Zhongguancun Software Industrial Park, Dongbeiwang, Haidian District, Beijing, China
Legal representative: Xxx Xx
Party C:
Xx. Xxx Yu, ID number: 000000000000000000
Address: Xx. 00, Xxxxxxxxx Xxxx, Xxxxxxx Xxxxxxxx, Xxxxxxx (Postgraduate 98)
Xx. Xxxx Xu, ID number: 110104690310301
Address: Room 1601, Xxxxxxxx 0, Xx.00, Xxxxx Xxxxxxx Xxxx, Haidian
District, Beijing
Xx. Xxx Wenyong, ID number: 000000000000000000
Address: Teaching Staff Dormitory, No. 5, Yiheyuan Road, Haidian District,
Beijing
Whereas:
1. Party A is a wholly foreign-owned enterprise which is registered and established and
continuously exists within the territory of the People’s Republic of China.
2. Party B is a limited-liability company which is registered and established by natural persons
within the territory of the People’s Republic of China.
3. Party A and Party B have established business relations by signing an “Exclusive Technical
Consulting Services Agreement” as well as other relevant agreements. Party B shall, under these
agreements, make payments to Party A, so the daily business operations of Party B will cause a
material effect on its ability to making relevant payments to Party A.
4. Party C are shareholders of Party B (the “Founding Shareholders”). Xx. Xxx Yu holds 52%, Xx.
Xxxx Xu holds 33.25%, and Xx. Xxx Wenyong holds 14.75% of the equity interest of Party B.
Upon the principles of amicable consultation and mutual benefits, all Parties hereby agree to abide
by the following provisions and conditions.
1. Obligations of Abstention (Non-action Obligations)
In order to facilitate Party B to perform such agreements as signed with Party A and to
perform its obligations to Party A, the Founding Shareholders hereby confirm and agree that,
without the prior written consent of Party A or Party A’s representatives, Party B will not engage
in any transaction which may materially affect the its assets, services, personnel, obligations,
rights or operation, including but not limited to:
1.1 Engaging in any activity which exceeds the normal business scope of the Company.
1.2 Borrowing money from any third party or assuming any debt, except for any loan or debt
with single contract amount of less than RMB 150,000 during normal or daily business operation, or
many contracts signed and concluded with a same party within three consecutive months with the
total amount of less than RMB 150,000.
1.3 Changing or removing any director or any executive officer of the Company;
1.4 Selling to or procuring from any third party any assets or rights with an amount of more
than RMB 200,000, including but not limited to any intellectual property right.
1.5 Providing any third party with any warranty or guaranty by the Company’s assets or
intellectual property rights, or attaching any other obligations to the Company’s assets, except
for a warranty which occurs during normal or daily business operation with the prior written
consent of Party A.
1.6 Altering or changing the “Articles of Association” or business scope of the Company.
1.7 Altering or changing any normal business procedure or bylaws or any major internal rules
of the Company.
1.8 Transferring to any third party any right or obligation under this Agreement.
2. Operation management and personnel arrangement
2.1 Party B and the Founding Shareholders hereby agree and accept any proposals provided by
Party A, from time to time, regarding the employee appointment and removal, daily business
operation and financial management of the Company.
2.2 Party B and the Founding Shareholders hereby agree that the Founding Shareholders shall,
pursuant to relevant laws and regulations and the Company’s “Articles of Association”, select such
persons as appointed by Party A to serve as the directors, general manager, chief financial
officer, and other senior managers of the Company.
2.3 In the event that such person as appointed by Party A leaves Party A, whether through
voluntary resignation or being dismissed by Party A, he or she can no longer hold any position in
Party B. Under such circumstance, the Founding Shareholders shall select another person as
appointed by Party A to serve such position.
2.4 For the purpose of the aforesaid Clause 2.3, the Founding Shareholders shall, pursuant to
the stipulations of relevant laws and the Company’s “Articles of Association” and this Agreement,
take and adopt all necessary internal and external measures to complete and finish the aforesaid
removal and selection procedures.
2.5 The Founding Shareholders hereby agree that, upon signing this Agreement, they will sign a
“Power of Attorney” (as Appendix 1 hereto). The Founding Shareholders shall, pursuant to such
“Power of Attorney”, irrevocably authorize such persons as appointed by Party A to exercise all
voting powers and rights that the Founding Shareholders enjoy as shareholders of Party B. The
Founding Shareholders further agree that they will, pursuant to the requirements of Party A,
immediately replace and change such authorized persons who are set out in the aforesaid Power of
Attorney.
3. Other Stipulations
3.1 If and whenever any agreement between Party A and Party B is terminated or expired, both
Parties shall consult whether to terminate all agreements between both Parties, including but not
limited to the “Exclusive Technical Consulting Services Agreement”.
3.2 Whereas Party A and Party B have established business relations by signing an “Exclusive
Technical Consulting Services Agreement” as well as relevant agreements, and the daily business
activities of Party B will cause a material effect on its ability to make relevant payments to
Party A. The Founding Shareholders hereby agree that they shall unconditionally pay or transfer to
Party A any bonus, dividend or any other profit or interest (in any form) which is procured and
obtained from Party B as the shareholders of Party B.
4. Entire Agreement and Alteration
4.1 This Agreement and all of such agreements and/or documents as mentioned or implied herein
shall constitute the entire agreement among the Parties with respect to the subject matter hereof,
and shall supersede all previous and contemporaneous, oral and written agreements, contracts,
negotiations and understandings.
4.2 This Agreement can only be amended or altered by written agreement signed by both
Parities. Such amendment or supplemental agreement properly signed by the Parties shall be deemed
as an integral part hereof, and shall have the same legal effect with this Agreement.
5. Governing Laws
The signing, effectiveness, performance and interpretation hereof, as well as the settling of
disputes, shall be governed by the laws of the People’s Republic of China.
6. Settling of Disputes
6.1 Any dispute as arising from the interpretation or performance of the articles and clauses
hereunder shall be carefully settled through amicable discussions by the Parties. In the event that
no settlement could be reached, either Party may submit the dispute in question for arbitration to
China International Economic and Trade Arbitration Commission. The rules of this Commission shall
be applied. The arbitration shall be conducted in Beijing in mandarin Chinese. The award of the
Arbitration shall be final and binding upon the Parties.
6.2 The Parties shall, at good will, continue to perform their respective obligations
hereunder except for the matters under arbitration.
7. Notices
Any notice to be given by the Parties for performing the rights and obligations hereunder
shall be in writing and shall be sufficiently given by the designated person, fax or registered or
certified mail, postage prepaid, to the following addresses of the Parties.
Party A: NetQin Mobile (Beijing) Technology Co., Ltd. (“NetQin Beijing”)
Address: Xxxx 0000-0, Xxxxxxxx 0-X, Xxxxxxxxxx Incubator, Zhongguancun
Software Industrial Park, Dongbeiwang, Haidian District, Beijing, China
Fax:
Telephone:
Addressee:
Party B: Beijing NetQin Technology Co.,Limited (“NetQin Technology”)
Address: Room 1322, Building 1-C, Enterprise Incubator, Xxxxxxxxxxxx
Xxxxxxxx Xxxxxxxxxx Xxxx, Xxxxxxxxxxx, Xxxxxxx Xxxxxxxx, Xxxxxxx, Xxxxx
Fax: (0000) 00000000
Telephone: (0000) 00000000-000
Addressee:
Party C
Xxx Xx
Address: Xx. 00, Xxxxxxxxx Xxxx, Xxxxxxx Xxxxxxxx, Xxxxxxx (Postgraduate 98)
Fax: (0000) 00000000
Telephone: (0000) 00000000-000
Addressee:
Zhou Xu
Address: Room 1601, Building 1, Xx.00, Xxxxx Xxxxxxx Xxxx, Xxxxxxx
Xxxxxxxx, Xxxxxxx
Fax: (0000) 00000000
Telephone: (0000) 00000000-000
Addressee:
Shi Wenyong,
Address: Teaching Staff Dormitory, Xx.0, Xxxxxxxx Xxxx, Xxxxxxx Xxxxxxxx,
Xxxxxxx
Fax: (0000) 00000000
Telephone: (0000) 00000000-000
Addressee:
8. Agreement Effectiveness, Term and Others
8.1 All written consents, proposals, appointments and other decisions as materially affecting
the daily operation of Party B shall be made by the Board of Directors of Party A.
8.2 This Agreement shall come into effect when it is signed and concluded by the Parties on
the date provided on the front page of this Agreement. This Agreement shall be effective till the
date when Party A is dissolved in accordance with the laws of the People’s Republic of China.
8.3 Within the effective period hereof, neither Party B nor the Founding Shareholders shall
terminate this Agreement in advance. Party A shall have the right to terminate this Agreement by
issuing a notice in writing to Party B and the Founding Shareholders 30 days in advance.
8.4 If and whenever any clause or provision hereof becomes illegal, invalid or unenforceable
in any jurisdiction, such clause shall be deemed as having been deleted herefrom, but the other
clauses and provisions hereof shall remain effective and valid, as if such clause were not included
herein in the first place. The Parties shall, upon amicable negotiations, replace and supersede the
deleted clause with an acceptable and legal and effective clause.
8.5 Failure to exercise any right, power or privilege hereunder by any party shall not be
deemed as waiver. The exercise of any individual right, power or privilege or part of any right,
power or privilege shall not prevent and impair the exercise of any other right, power or
privilege.
In witness whereof, the Parties have caused this Agreement to be executed by their duly
authorized representatives as of the date provided on the front page of this Agreement.
(No text of this agreement below)
(This page is intentionally left blank for the signing of this Agreement)
| Party A: NetQin Mobile (Beijing) Technology Co., Ltd. (official company seal) Authorized Representative: Xxx Xx |
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| /s/ Xxx Xx | ||||
| Party B: Beijing NetQin Technology Co.,Limited (official company seal) Legal representative: Xxx Xx |
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| /s/ Xxx Xx | ||||
| Party C: Xxx Xx |
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| /s/ Xxx Xx | ||||
| Zhou Xu |
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| /s/ Zhou Xu | ||||
| Shi Wenyong |
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| /s/ Shi Wenyong | ||||
Appendix 1:
Power of Attorney
We, shareholders of Beijing NetQin Technology Co., Limited (“NetQin Technology”), Xx. Xxx Yu
(ID number: 000000000000000000), Xx. Xxxx Xu (ID number: 110104690310301) and Xx. Xxx Wenyong (ID
number: 000000000000000000), (collectively, the “Authorizers”), hereby irrevocably authorize
Beijing NetQin Technology Co., Limited (“NetQin Beijing”, or the “Authorizee”) to exercise the
following rights within the effective period of this Power of Attorney.
The Authorizee may duly represent us to enjoy and exercise all shareholders’ rights which are
stipulated by laws and the “Articles of Association” of the Company, including but not limited to:
the right to propose a shareholders’ meeting; the right to
receive any notice on shareholders’ meetings and agendas; the right to attend a shareholders’ meeting and exercise all voting rights
(including serving as our duly authorized representative to appoint and designate the directors,
general manager, chief financial officer, and other executive officer of the Company, and to decide
the bonus of the Company, etc.); the right to sell or transfer all or any of our shares in NetQin
Technology, etc.
The Authorizee shall have the right to appoint such persons as selected by its Board of
Directors (or executive director) to exercise such rights hereunder as authorized by the
Authorizers.
Unless this “Business Operations Agreement” as jointly signed and concluded by NetQin
Technology, NetQin Beijing, Xx. Xxx Yu, Xx. Xxxx Xu and Xx. Xxx Wenyong is terminated in advance by
virtue of any reason, this Power of Attorney shall remain effective from the date it is signed to
the date when NetQin Beijing is dissolved in accordance with the laws of the People’s Republic of
China.
The Authorizer:
|
The Authorizer: | The Authorizer: | ||
/s/ Xxx Xx
|
/s/ Zhou Xu | /s/ Shi Xxxxxxx | ||
Xxx Xx
|
Xxxx Xx | Xxx Wenyong |
Date: June 5, 2007
