Operating Agreement
This
Operating Agreement (hereinafter referred to as “this Agreement”) is entered
into in ShenZhen on February 08, 2007 between the following
parties:
Party
A: JingWei HengTong Technology (ShenZhen) Co., Ltd. (经纬恒通科技（深圳）有限公司
)
Registration
Address: Xxxx 0000 X,Xxxxxx Xx-xxxx Xxxxx Xxxxx X,Xxxx An Cyber Park,Futian
District,Shenzhen,China
Party
B:
ShenZhen JingWei Communication Co., Ltd.(深圳经纬通信技术有限公司)
Registration
Address: Tianxiang Building Block A 13th, Tian An Cyber Park, Futian District,
Shenzhen.
PARTY
C:
Mr. JianGuo Du
ID
No.
310104640815041
PARTY
D:
Ms. AiLing Yin
ID
No.
310104660918042
PARTY
E:
Xx. XxxXxxx Yin
ID
No.
410802640601252
WHEREAS:
1.
Party
A
is a wholly foreign-owned enterprise duly incorporated and validly existing
under the People’s Republic of China (the “PRC”) law, which has the technology
expertise and the practical experience on the development and design of computer
software, and rich experience and professional technicians on information
technology and services;
2.
Party
B
is a limited liability company duly incorporated and validly existing under
the
PRC law, which is licensed by relevant government authorities to engage in
the
internet information service value-added telecommunication service;
3.
Party
C,
Party D and Party E are shareholders of Party B, in which Party C owns 90%,
Party D owns 8% and Party E owns 2% equity interests of Party B;
4.
Party
A
has established a business relationship with Party B by entering into the
amended and restated “Exclusive Technology Consulting Services Agreement”
(hereinafter referred to as the “Services Agreement”), Intellectual Property
Agreement;
5.
Pursuant to the above-mentioned agreements between Party A and Party B,
that Party A shall carry the operation cost raised from operating of Party
B,
and Party B shall pay all incomes from main business operations to Party A,
the
relevant payable account has not been paid yet and the daily operation of Party
B will have a material effect on its capacity to pay such payable account to
Party A;
NOW
THEREFORE, all parties of this Agreement hereby agree as follows through mutual
negotiations:
1.
Party
A
agrees, subject to the satisfaction of the relevant provisions by Party B
herein, as the guarantor for Party B in the contracts, agreements or
transactions in connection with Party B’s operation between Party B and any
other third party, to provide full guarantee for the performance of such
contracts, agreements or transactions by Party B. Party B agrees, as the
counter-guarantee, to pledge the receivable account in its operation and the
whole assets of company to Party A. According to the aforesaid guarantee
arrangement, Party A wishes to enter into written guarantee contracts with
Party
B’s counter-parties thereof to assume the guarantee liability as the guarantor
when it needs; therefore, Party B, Party C, Party D and Party E shall take
all
necessary actions (including but not limited to execute relevant documents
and
transact relevant registrations) to carry out the arrangement of
counter-guarantee to Party A.
2.
In
consideration of the requirement of Article 1 herein and assuring the
performance of the various operation agreements between Party A and Party B
and
the payment of the payables accounts by Party B to Party A, Party B together
with its shareholders Party C, Party D and Party E hereby jointly agree that
Party B shall not conduct any transaction which may materially affects its
assets, obligations, rights or the company’s operation (excluding the business
contracts, agreements, sell or purchase assets during Party B’s regular
operation and the lien obtained by relevant counter parties due to such
agreements) unless the obtainment of a prior written consent from Party A,
including but not limited to the following contents:
2.1
borrow
money from any third party or assume any debt;
2.2
To
sell
to or acquire from any third party any asset or right, including but not limited
to any intellectual property right;
2.3
To
provide real guarantee for any third party with its assets or intellectual
property rights;
2.4
To
assign
to any third party its business agreements.
3.
In
order
to ensure the performance of the various operation agreements between Party
A
and Party B and the payment of the various payables by Party B to Party A,
Party
B together with its shareholders Party C, Party D and Party E hereby jointly
agree to accept, from time to time, the corporate policy advise and guidance
provided by Party A in connection with company’s daily operating and financial
management and the employment and dismissal of the company’s
employees.
4.
Party
B
together with its shareholders Party C, Party D and Party E hereby jointly
agree
that Party C, Party D and Party E shall appoint the person recommended by Party
A as the directors of Party B, and Party B shall appoint Party A’s senior
managers as Party B’s General Manager, Chief Financial Officer, and other senior
officers. If any of the above senior officers leaves or is dismissed by Party
A,
he or she will lose the qualification to take any position in Party B and Party
B shall appoint other senior officers of Party A recommended by Party A to
take
such position. The person recommended by Party A in accordance with this Article
herein should comply with the stipulation on the qualifications of directors,
General Manager, Chief Financial Officer, and other senior officers pursuant
to
applicable law.
5.
Party
B
together with its shareholders Party C, Party D and Party E hereby jointly
agree
and confirm that Party B shall seek the guarantee from Party A first if it
needs
any guarantee for its performance of any contract or loan of flow capital in
the
course of operation. In such case, Party A shall have the right but not the
obligation to provide the appropriate guarantee to Party B on its own
discretion. If Party A decides not to provide such guarantee, Party A shall
issue a written notice to Party B immediately and Party B shall seek a guarantee
from other third party.
6.
In
the
event that any of the agreements between Party A and Party B terminates or
expires, Party A shall have the right but not the obligation to terminate all
agreements between Party A and Party B including but not limited to the Services
Agreement.
7.
Any
amendment and supplement of this Agreement shall be made in writing. The
amendment and supplement duly executed by all parties shall be deemed as a
part
of this Agreement and shall have the same legal effect as this
Agreement.
8.
If
any
clause hereof is judged as invalid or non-enforceable according to relevant
laws, such clause shall be deemed invalid only within the applicable area of
the
Laws and without affecting other clauses hereof in any way.
9.
Party
B
shall not assign its rights and obligations under this Agreement to any third
party without the prior written consent of Party A. Party B hereby agrees that
Party A may assign its rights and obligations under this Agreement as it needs
and such transfer shall only be subject to a written notice sent to Party B
by
Party A, and no any further consent from Party B will be required.
10.
All
parties acknowledge and confirm that any oral or written materials communicated
pursuant to this Agreement are confidential documents. All parties shall keep
secret of all such documents and not disclose any such documents to any third
party without prior written consent from other parties unless under the
following conditions: (a) such documents are known or shall be known by the
public (excluding the receiving party discloses such documents to the public
without authorization); (b) any documents disclosed in accordance with
applicable laws or rules or regulations of stock exchange; (c) any documents
required to be disclosed by any party to its legal counsel or financial
consultant for the purpose of the transaction of this Agreement by any party,
and such legal counsel or financial consultant shall also comply with the
confidentiality as stated hereof. Any disclosure by employees or agencies
employed by any party shall be deemed the disclosure of such party and such
party shall assume the liabilities for its breach of contract pursuant to this
Agreement. This Article shall survive whatever this Agreement is void, amended,
cancelled, terminated or unable to perform.
11.
This
Agreement shall be governed by and construed in accordance with the PRC
law.
12.
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 reached through consultation, each party can submit such
matter to China International Economic and Trade Arbitration Commission
(“CIETAC”) for arbitration in accordance with its rules of CIETAC. The
arbitration proceedings shall take place in Beijing and shall be conducted
in
Chinese. The arbitration award shall be final and conclusive and binding upon
all the parties.
13.
This
Agreement shall be executed by a duly authorized representative of each party
as
of the date first written above and become effective simultaneously. Party
A and
Party B’s rights and obligations under the Agreement on Operation Cost shall be
terminated simultaneously upon the effectiveness of this Agreement.
14.
Notwithstanding
Article 13 hereof, the parties confirm that this Agreement shall constitute
the
entire agreement of the Parties with respect to the subject matters therein
and
supersedes and replaces all prior or contemporaneous verbal and written
agreements and understandings.
15.
The
term
of this agreement is ten (10) years unless early termination occurs in
accordance with relevant provisions herein or in any other relevant agreements
reached by all parties. This Agreement may be extended only upon Party A’s
written confirmation prior to the expiration of this Agreement and the extended
term shall be determined by the Parties hereto through mutual consultation.
During the aforesaid term, if Party A or Party B is terminated at expiration
of
the operation term (including any extension of such term) or by any other
reason, this Agreement shall be terminated upon such termination of such party,
unless such party has already assigned its rights and obligations in accordance
with Article 9 hereof.
16.
This
Agreement shall be terminated on the expiring date unless it is renewed in
accordance with the relevant provision herein. During the valid term of this
Agreement, Party B shall not terminate this Agreement. Notwithstanding the
above
stipulation, Party A shall have the right to terminate this Agreement at any
time by issuing a thirty (30) days prior written notice to Party B.
17.
The
original of this Agreement is in five (5) copies, each party holds one and
all
original are equally valid.
IN
WITNESS THEREOF each party hereto have caused this Agreement duly executed
by
itself or a duly authorized representative on its behalf as of the date first
written above.
Party
A: JingWei HengTong Technology (ShenZhen) Co., Ltd.
Authorized
Representative:
Seal:
Party
B:
ShenZhen JingWei Communication Co.,
Ltd.
Authorized
Representative:
Seal:
PARTY
C:
Mr. JianGuo Du
Signature:
PARTY
D:
Ms. AiLing Yin
Signature:
PARTY
E:
Xx. XxxXxxx Yin
Signature:
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