ENTRUSTED MANAGEMENT AGREEMENT BETWEEN YAO GUO YUN MENG CHUN DE
Exhibit 10.35
BETWEEN
XXX XXX XXX
XXXX XXXX DE
TAIYUAN HONGXING CARBON BLACK CO., LTD.
AND
JIN XXXXX XX XX XXX SI CARBON (TAIYUAN) CO., LTD
Taiyuan, CHINA
This Entrusted Management Agreement (the “Agreement”) is entered into as of 【 】in Taiyuan by:
Party A
1. Xxx Xxx Yun, a citizen of PRC with ID Card number of 140121196211149047, owns 91% shares of Taiyuan Hongxing Carbon Black Co., Ltd;
2. Xxxx Xxxx De, a citizen of PRC with ID Card number of 140121196303089010, owns 9% shares of Taiyuan Hongxing Carbon Black Co., Ltd;
3. Taiyuan Hongxing Carbon Black Co., Ltd is an enterprise incorporated and existing within the territory of China in accordance with the law of the People’s Republic of China. The registration number of its legal and valid Business License is 140121200005084 and the legal registered address is Xigu Village, Xigu Country of Qingxu County, Taiyuan of Shanxi Province.
and
Party B
4. Jin Xxxxx Xx Xx Xxx Si Carbon (Taiyuan) Co., Ltd is a wholly-foreign owned enterprise registered in Taiyuan, and the registration number of its legal and valid Business License is 140100400002251 and its legal address is 1-1-705, Beimei New World Garden, No.116 of Changfeng Street, Taiyuan of Shanxi Province.
Whereas,
1. Party A constitutes Taiyuan Hongxing Carbon Black Co., Ltd (hereinafter referred to as “Taiyuan Hongxing”) and all of its shareholders hold all issued and outstanding shares of Taiyuan Hongxing. Under this Agreement, Taiyuan Hongxing, Xxx Xxx Yun , Xxxx Xxxx De have acted collectively as one party to this Agreement;
2. Jin Xxxxx Xx Xx Xxx Si Carbon (Taiyuan) Co., Ltd (hereinafter referred to as “Party B”) is a wholly-foreign owned enterprise incorporated and existing within the territory of China in accordance with the law of the People’s Republic of China, the registration number of its legal and valid Business License is 140100400002251, and the legal registered address is 1-1-705, Beimei New World Garden, No.116 of Changfeng Street, Taiyuan of Shanxi Province. Party A desires to entrust Party B to manage and operate Taiyuan Hongxing;
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3. Party B agrees to accept such entrustment and to manage Taiyuan Hongxing on behalf of Party A.
Therefore, in accordance with laws and regulations of the People’s Republic of China, the Parties agree as follows after friendly consultation based on the principle of equality and mutual benefit.
Article 1 Entrusted Management
1.1 Party A agrees to entrust the management of Taiyuan Hongxing to Party B pursuant to the terms and conditions of this Agreement. Party B agrees to manage Taiyuan Hongxing in accordance with the terms and conditions of this Agreement.
1.2 The term of this Entrusted Management Agreement (the “Entrusted Period”) shall be from the effective date of this Agreement to the earlier of the following:
(a) the winding up of Taiyuan Hongxing, or
(b) the termination date of this Entrusted Management Agreement to be determined by the Parties hereto, or
(c) the date on which Party B completes the acquisition of Taiyuan Hongxing.
1.3 During the Entrusted Period, Party B shall be fully and exclusively responsible for the management of Taiyuan Hongxing. The management service includes without limitation the following:
(a) Party B shall be fully and exclusively responsible for the operation of Taiyuan Hongxing, which includes the right to appoint and terminate members of directors and the right to hire managerial and administrative personnel etc. Party A or its voting proxy shall make shareholder’s resolution and directors’ resolution based on the decision of Party B.
(b) Party B has the full and exclusive right to manage and control all cash flow and assets of Party A. Taiyuan Hongxing shall open an entrusted account or designate an existing account as an entrusted account. Party B has the full and exclusive right to decide the use of the funds in the entrusted account. The authorized signature of the account shall be appointed or confirmed by Party B. All of the funds of Taiyuan Hongxing shall be kept in this account, including but not limited to its existing working capital and purchase price received from selling its production equipment, inventory, raw materials and accounts receivable to Party B (if any), all payments of funds shall be disbursed through this entrusted account, including but not limited to the payment of all existing accounts payable and operating expenses, payment of employees salaries and purchase of assets, and all revenues from its operation shall be kept in this account.
(c) Party B shall have the full and exclusive right to control and administrate the financial affairs and daily operation of Taiyuan Hongxing, such as entering into and performance of contracts, and payment of taxes etc.
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1.4 In consideration of the services provided by Party B hereunder, Party A shall pay the entrusted management fee to Party B which shall be equal to the earnings before tax (if any) of Taiyuan Hongxing. The entrusted management fee shall be as follows: during the term of this agreement, the entrusted management fee shall be equal to Taiyuan Hongxing’s estimated earnings before tax, being the monthly revenues after deduction of operating costs, expenses and taxes other than income tax. If the earnings before tax is zero, Taiyuan Hongxing is not required to pay the entrusted management fee; if Taiyuan Hongxing sustains losses, all such losses will be carried over to next month and deducted from next month’s entrusted management fee. Both Parties shall calculate, and Party A shall pay, the monthly entrusted management fee within 20 days of the following month. The above monthly payment shall be adjusted after the end of each quarter but before the filing of tax return for such quarter (the “Quarterly Adjustment”), so as to make the after-tax profit of Taiyuan Hongxing of that quarter is zero. In addition, the above monthly payment shall be adjusted after the end of each fiscal year but before the filing for the yearly tax return (the “Annual Adjustment”), so as to make the after-tax profit of Taiyuan Hongxing of that fiscal year is zero.
1.5 Party B shall assume all operation risks out of the entrusted management of Taiyuan Hongxing and bear all losses of Taiyuan Hongxing. If Taiyuan Hongxing has no sufficient funds to repay its debts, Party B is responsible for paying off these debts on behalf of Taiyuan Hongxing; if Taiyuan Hongxing’s net assets are lower than its registered capital, Party B is responsible for funding the deficit.
Article 2 Rights and Obligations of the Parties
2.1 During the term of this Agreement, Party A’s rights and obligations include:
(a) to hand over Taiyuan Hongxing to Party B for entrusted management as of the effectiveness date of this Agreement and to hand over all of business materials together with Business License and corporate seal of Taiyuan Hongxing to Party B;
(b) Party A has no right to make any decision regarding Taiyuan Hongxing’s operations without the prior written consent of Party B;
(c) to have the right to know the business conditions of Taiyuan Hongxing at any time and provide proposals;
(d) to assist Party B in carrying out the entrusted management in accordance with Party B’s requirement;
(e) to perform its obligations pursuant to the Shareholders’ Voting Rights Proxy Agreement, signed by and between Xxx Xxx Yun, Xxxx Xxxx De and Party B on【 】in Taiyuan, and not to violate the said agreement;
(f) not to intervene Party B’s management over Taiyuan Hongxing in any form by making use of shareholder’s power;
(g) not to entrust or grant their shareholders’ rights in Taiyuan Hongxing to a third party other than Party B without Party B’s consent;
(h) not to otherwise entrust other third party other than Party B to manage Taiyuan Hongxing in any form without Party B’s prior written consent;
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(i) not to terminate this Agreement unilaterally with for any reason whatsoever; or
(j) to enjoy other rights and perform other obligations under the Agreement.
2.2 During the term of this Agreement, Party B’s rights and obligations include:
(a) to enjoy the full and exclusive right to manage Taiyuan Hongxing independently;
(b) to enjoy the full and exclusive right to dispose of all assets of Taiyuan Hongxing;
(c) to enjoy all profits and bear losses arising from Taiyuan Hongxing’s operations during the Entrusted Period;
(d) to appoint all directors of Taiyuan Hongxing;
(e) to appoint the legal representative, general manager, vice general manager, financial manager and other senior managerial personnel of Taiyuan Hongxing;
(f) to convene shareholders’ meetings of Taiyuan Hongxing in accordance with the Shareholders’ Voting Rights Proxy Agreement and sign resolutions of shareholders’ meetings; and
(g) to enjoy other rights and perform other obligations under the Agreement.
Article 3 Representations and Warranties
The Parties hereto hereby make the following representations and warranties to each other as of the date of this Agreement that:
(A) has the right to enter into the Agreement and the ability to perform the same;
(B) the execution and delivery of this Agreement by each party have been duly authorized by all necessary corporate action;
(C) the execution of this Agreement by the officer or representative of each party has been duly authorized；
(D) each party has no other reasons that will prevent this Agreement from becoming a binding and effective agreement between both parties after execution;
(E) the execution and performance of the obligations under this Agreement will not:
(a) violate any provision of the business license, articles of association or other similar documents of its own;
(b) violate any provision of the laws and regulations of PRC or other governmental or regulatory authority or approval;
(c) violate or result in a breach of any contract or agreement to which the party is a party or by which it is bound.
Article 4 Effectiveness
This Agreement shall take effect after it is duly executed by the authorized representatives of the parties hereto with seals affixed.
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Article 5 Liability for Breach of Agreement
During the term of this Agreement, any violation of any provisions herein by either party constitutes breach of contract and the breaching party shall compensate the non-breaching party for the loss incurred as a result of this breach.
Article 6 Force Majeure
The failure of either party to perform all or part of the obligations under the Agreement due to force majeure shall not be deemed as breach of contract. The affected party shall present promptly valid evidence of such force majeure, and the failure of performance shall be settled through consultations between the parties hereto.
Article 7 Governing Law
The conclusion, validity, interpretation, and performance of this Agreement and the settlement of any disputes arising out of this Agreement shall be governed by the laws and regulations of the People’s Republic of China.
Article 8 Settlement of Dispute
Any disputes under the Agreement shall be settled at first through friendly consultation between the parties hereto. In case no settlement can be reached through consultation, each party shall have the right to submit such disputes to China International Economic and Trade Arbitration Commission in accordance with its rules located in Beijing. The arbitration award shall be final and binding on both parties.
Article 9 Confidentiality
9.1 The parties hereto agree to cause its employees or representatives who has access to and knowledge of the terms and conditions of this Agreement to keep strict confidentiality and not to disclose any of these terms and conditions to any third party without the expressive requirements under law or request from judicial authorities or governmental departments or the consent of the other party, otherwise such party or personnel shall assume corresponding legal liabilities.
9.2 The obligations of confidentiality under Section 1 of this Article shall survive after the termination of this Agreement.
Article 10 Severability
10.1 Any provision of this Agreement that is invalid or unenforceable due to the laws and regulations shall be ineffective without affecting in any way the remaining provisions hereof.
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10.2 In the event of the foregoing paragraph, the parties hereto shall prepare supplemental agreement as soon as possible to replace the invalid provision through friendly consultation.
Article 11 Non-waiver of Rights
11.1 Any failure or delay by any party in exercising its rights under this Agreement shall not constitute a waiver of such right.
11.2 Any failure of any party to demand the other party to perform its obligations under this Agreement shall not be deemed as a waiver of its right to demand the other party to perform such obligations later.
11.3 If a party excuses the non-performance by other party of certain provisions under this Agreement, such excuse shall not be deemed to excuse any future non-performance by the other party of the same provision.
Article 12 Non-transferability
Unless otherwise specified under this Agreement, no party can assign or delegate any of the rights or obligations under this Agreement to any third party nor can it provide any guarantee to such third party or carry out other similar activities without the prior written consent from the other party.
Article 13 Miscellaneous
13.1 Any and all taxes arising from execution and performance of this Agreement and during the course of the entrusted management and operation shall be borne by the Parties respectively pursuant to the provisions of laws and regulations.
13.2 Any amendment entered into by the parties hereto after the effectiveness of this Agreement shall be an integral part of this Agreement and have the same legal effect as part of this Agreement. In case of any discrepancy between the amendment and this Agreement, the amendment shall prevail. In case of several amendments, the amendment with the latest date shall prevail.
13.3 This Agreement is executed by Chinese and English in duplicate and both the English version and Chinese version shall have the same effect. Each of the original Chinese and English versions of this Agreement shall be executed in four copies. Each party shall hold one original for each version.
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IN WITNESS HEREOF, the Parties hereof have caused this Agreement to be executed by their duly authorized representatives as of the date first written above.
Party A:
Xxx Xxx Yun
(Signature):
Xxxx Xxxx De
(Signature):
Taiyuan Hongxing Carbon Black Co., Ltd.
(Seal)
Legal Representative/Authorized Representative
(Signature):
PARTY B:
Jin Xxxxx Xx Xx Xxx Si Carbon (Taiyuan) Co., Ltd
(Seal)
Legal Representative/Authorized Representative
(Signature):
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