Business Operations Agreement
THIS BUSINESS OPERATIONS AGREEMENT
(this “Agreement”) is entered into
and among the following parties (the “Parties”) in Jinjiang, Fujian
Province, the People’s Republic of China (the “PRC”) on 18 November,
2010:
Party
A:
AILIBAO
(FUJIAN) MARKETING MANAGEMENT CO.,LTD
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Address:
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Xxxxx
0, Xxxxxxxx 0, Xxxxxxx Xxxxxxxxxx Xxxx
No.118,
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Jiangtou
Village, Chendai Town, Jinjiang City
Legal
Representative: Xxx Xxx Xxxx
Party
B:
Fujian
Jinjiang Chendai Ailibao Shoes & Clothes Co., Ltd
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Address:
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Jiangtou
village, Chendai town, Jinjiang, Fujian
province
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Legal
Representative: Ding Baojian
Party
C:
Ding
Baojian
ID
Number: 35058219650824574
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Address:
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East
Xxxxxx Xxxx Xx.0, Xxxxxxxx village, Chendai Town, Jinjiang City, Fujian
Province
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Ding
Baofu
ID
Number: 350582721015053
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Address:
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Dongmei
Xx.00, Xxxxxxxx xxxxxxx, Xxxxxxx Xxxx, Xxxxxxxx Xxxx, Xxxxxx
Xxxxxxxx
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Ding
Changming
ID
Number: 000000000000000000
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Address:
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East
Xxxxxx Xxxx Xx.0, Xxxxxxxx village, Chendai Town, Jinjiang City, Fujian
Province
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1
WHEREAS:
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1.
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Party
A is a wholly foreign-owned enterprise duly incorporated and existing in
the PRC.
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2.
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Party
B is a limited liability company registered in the
PRC.
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3.
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A
business relationship has been established between Party A and Party B by
entering into Exclusive Business and Consulting Services Agreement and so
on, pursuant to which Party B shall make various kinds of payments to
Party A such that the daily operation of Party B will have a material
impact on its payment capacity to Party
A.
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4.
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Members
of Party C are directly interested in Party B: Ding Baojian owns 33.34%
equity interest in Party B, Ding Baofu owns 33.33% and Ding Changming owns
33.33%.
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The
Parties, through friendly negotiation in the principles of equality and mutual
benefits, hereby agree as follows:
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1.
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Non-action
Obligation
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In order
to ensure Party B’s performance of the agreements between Party A and Party B
and all of its obligations against Party A, Party C hereby jointly acknowledge
and agree that unless otherwise agreed by Party A or other parties designated by
Party A in written form, Party B will not conduct any transaction which may
materially affect its assets, business, personnel, obligations, rights or Party
A’s operation, including but not limited:
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1.1
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to
conduct any business beyond the ordinary course of business of Party B or
conduct business in a way which is inconsistent with the past practices or
in an abnormal way;
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1.2
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to
borrow money from or incur any debt against any third
party;
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1.3
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to
change or remove any director or to dismiss and replace any senior
management;
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1.4
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to
sell to or acquire from any third party or otherwise dispose of any asset
or right exceeding RMB 100,000;
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1.5
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to
provide guarantee for any third party with its assets or intellectual
property rights or to provide any other guarantee or to create any other
encumbrance on its assets;
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2
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1.6
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to
amend the Articles of Association of the company or to change its business
scope;
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1.7
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to
change the ordinary business process or modify any material and internal
regulation and rules of the
company;
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1.8
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to
assign rights and obligations under this Agreement to any third
party;
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1.9
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to
materially adjust the operation model, marketing strategy, operation
guidance or client relationship;
and
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1.10
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to
distribute any bonus or dividend in any
form.
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2.
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Management
of Operation and Arrangements of
Personnel
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2.1
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Party
B and Party C hereby agree to accept and strictly implement the proposals
and directions of Party A, in respect of the employment and dismissal of
the employees, the daily business management and the financial management,
and other decision making regarding the business of Party
B.
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2.2
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Party
B and Party C hereby agree that the Party C shall only appoint candidates
designated by Party A as the directors of Party B in accordance with the
procedures under the applicable laws and regulations and the Article of
Association of Party B, and cause the appointed directors to elect the
chairman of the board as per the candidate recommended by Party A. Party B
shall appoint the person designated by Party A as Party B’s General
Manager, Chief Financial Officer, and other senior
management.
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2.3
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In
case any of the above officers designated by Party A leaves Party A,
voluntarily or involuntarily, he/she shall lose the qualification to take
any position in Party B. In such case, Party B and or C shall dismiss such
person and appoint another person designated by Party A to serve the
remaining service term.
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2.4
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For
the purpose of Section 2.3 above, Party C shall take all necessary
corporate actions internal and external to accomplish the above dismissal
and engagement in accordance with laws, Articles of Association and this
Agreement.
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3
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3.
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Additional
Covenants
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3.1
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In the event that any of the
agreements between Party A and Party B terminates or expires, Party A
shall be entitled to terminate all agreements between Party A and Party B
including but not limited to the Exclusive Business and Consulting
Services Agreement.
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3.2
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Whereas
the business relationship between Party A and Party B has been established
through Exclusive Business
and Consulting Services Agreement and other agreements, the daily
business operations of Party B will have a material impact on its capacity
to pay the payables to Party A. Members of Party C agree to irrevocably
transfer and assign, free of charge, to Party A their rights to receive
any bonus, dividend or any other proceed or benefit (in whatever forms)
obtained from Party B as its shareholders at the time when such payables
occur, and shall provide all the documents or take all actions necessary
for such transfer as required by Party
A.
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4.
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Entire
Agreement and Amendments
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4.1
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This
Agreement together with all of other agreements and/or documents referred
or explicitly indicated in this Agreement will constitute the entire
agreement in respect of the subject matters under this Agreement and shall
supersede all of other prior agreements, contracts, understandings and
communications in oral or written form among all Parties hereto in
relation to this matters.
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4.2
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Any
amendment or supplement to this Agreement shall take effect only after it
is duly executed by all of the Parties. The amendment and supplement duly
executed by each Party shall be integrate part of this Agreement and shall
be equally authentic with this
Agreement.
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5.
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Governing
Law
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The
execution, validly, interpretation and the resolution of disputes of this
Agreement shall be governed by and construed in accordance with the laws of the
PRC.
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6.
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Dispute
Resolution
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6.1
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The
Parties shall strive to settle any dispute arising from the interpretation
or performance of this Agreement through friendly consultation. In case no
settlement can be resolved through such consultation, either Party may
submit such dispute to Xiamen Arbitration Commission for arbitration in
accordance with its then-current and effective arbitration rules. The
arbitration shall be conducted in Chinese. The arbitration award shall be
final and binding upon the Parties. This Section shall survive the
termination or the recession of this
Agreement.
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4
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6.2
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Each
Party shall continue to perform its obligations in good faith in
accordance with this Agreement except for the matters in
dispute.
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7.
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Notice
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Notices
for the purpose of exercising the rights and performing the obligations
hereunder shall be in writing and be delivered in person, by registered mail,
postage prepaid mail, recognized courier service or by facsimile transmission to
the following address of the relevant Party or Parties set forth
below.
Party
A:
AILIBAO
(FUJIAN) MARKETING MANAGEMENT CO.,LTD
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Address:
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Xxxxx
0, Xxxxxxxx 0, Xxxxxxx Xxxxxxxxxx Xxxx
Xx.000,
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Xxxxxxxx
Xxxxxxx, Xxxxxxx Xxxx, Xxxxxxxx Xxxx
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Fax:
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0000-00000000
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Telephone:
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0000-00000000
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Addressee:
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Xxx
Xxx Ying
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Party
B:
Fujian
Jinjiang Chendai Ailibao Shoes & Clothes Co., Ltd
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Address:
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Jiangtou
village, Chendai town, Jinjiang, Fujian
province
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Fax:
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0000-00000000
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Telephone:
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0000-00000000
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Addressee:
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Ding
Baofu
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Party
C:
Ding
Baojian
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Address:
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East
Kaituo Road Xx.0, Xxxxxxxx xxxxxxx, Xxxxxxx Xxxx, Xxxxxxxx Xxxx, Xxxxxx
Xxxxxxxx
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Fax:
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0000-00000000
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Telephone:
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0000-00000000
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5
Ding
Baofu
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Address:
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Dongmei
Xx.00, Xxxxxxxx xxxxxxx, Xxxxxxx Xxxx, Xxxxxxxx Xxxx, Xxxxxx
Xxxxxxxx
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Fax:
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0000-00000000
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Telephone:
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0000-00000000
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Ding
Changming
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Address:
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East
Kaituo Road Xx.0, Xxxxxxxx xxxxxxx, Xxxxxxx Xxxx, Xxxxxxxx Xxxx, Xxxxxx
Xxxxxxxx
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Fax:
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0000-00000000
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Telephone:
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0000-00000000
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8.
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Effectiveness,
Term and Miscellaneous
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8.1
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Any
written consent, suggestion, appointment or other decision which would
have material impact on Party B’s daily business operations in respect of
this Agreement shall be approved by the board of directors of Party
A.
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8.2
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This
Agreement will come into effect upon execution by the duly authorized
representatives of all Parties and this Agreement shall survive until
Party A is dissolved according to the laws of the
PRC.
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8.3
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Neither
Party B nor Party C may terminate this Agreement during the term of this
Agreement. Party A may terminate this Agreement at any time by issuing a
thirty (30) days prior written notice to Party B and
Party.
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8.4
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The
Parties acknowledge that they enter into this Agreement in good faith and
on the basis of equality and mutual benefit. In case any
provision in this Agreement is regarded as illegal or unenforceable under
any applicable law, it shall be deemed to be excluded from this Agreement
and be null and void, as if such provision had never been included in this
Agreement. However, the balance of this Agreement will remain in force and
this Agreement shall be deemed as without such provisions from the
beginning. The Parties shall replace the deemed-deleted provisions with
lawful and valid provisions acceptable to all Parties through amicable
consultations.
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6
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8.5
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Any
non-exercise of any right, power or privilege hereunder shall not be
deemed as a waiver thereof. Any single or partial exercise of such right,
power or privilege shall not exclude one Party from exercising any other
right, power or privilege.
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8.6
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This
Agreement shall be in made in English, with five (5)
originals.
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IN WITNESS THEREOF the Parties
hereto have caused this Agreement to be duly executed by their authorized
representatives as of the date first above written.
7
[Signature
Page to the Business Operation Agreement]
Party
A:
AILIBAO
(FUJIAN) MARKETING MANAGEMENT CO.,LTD
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Authorized
Representative:
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/s/ XXX Xxx Xxxx (林美英)
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Party
B:
Fujian
Jinjiang Chendai Ailibao Shoes & Clothes Co., Ltd
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Authorized
Representative:
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/s/ DING Baojian (丁保健)
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Party
C:
Ding
Baojian(丁保健)
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Signature:
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/s/ DING Baojian
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Ding
Baofu(丁保福)
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Signature:
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/s/ DING Baofu
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Ding
Changming(丁長明)
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Signature:
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/s/ DING Changming
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8
