EXHIBIT 4.32
[Translated from Chinese Original]
OPERATION AGREEMENT
between
FORTUNE SOFTWARE (BEIJING) CO., LTD.
and
BEIJING GLORY CO., LTD.
September, 2007
BEIJING, CHINA
OPERATION AGREEMENT
This Operation Agreement ("this Agreement") is entered into in Beijing, People's
Republic of China (the "PRC") on this September 10, 2007 between:
Party A: Fortune Software (Beijing) Co., Ltd
Address: Xxxx 000, Beijing Hangtian Jingmi Mansion, Xx. 00 Xxxxxxx Xxxx Xxxx,
Xxxxxxx Xxxxxxxx, Xxxxxxx
Legal Representative: Xxxx Xxxxxx
Tel: 000-00000000
Party B: Beijing Glory Co., Ltd.
Address: Xxxx 000, Beijing Hangtian Jingmi Mansion, Xx. 00 Xxxxxxx Xxxx Xxxx,
Xxxxxxx Xxxxxxxx, Xxxxxxx
Legal Representative: Xxxx Xxxxxx
Tel: 000-00000000
WHEREAS,
(1) Party A is a wholly foreign owned enterprise duly organized and validly
existing under the laws of PRC, and has expertise and resources in developing
and manufacturing computer hardware and software, system software, and
application software; Party A desires to provide to Party B operational services
in connection with developing and manufacturing computer hardware and software,
system software, and application software.
(2) Party B is a company with limited liability duly organized and validly
existing under the laws of PRC; and to expand its business operation in the
aspects of developing and manufacturing computer hardware, software, system
software, and application software, Party B engages Party A to provide the
operational services in connection with the foregoing.
(3) Party A has entered into a technical support agreement and strategic
consulting service agreement with Party B (collectively the "Binding
Agreements"), and hence the Parties have established certain business
relationship.
NOW AND THEREFORE, in accordance with the principle of sincere cooperation,
mutual benefit and joint development and after friendly negotiations, the
Parties hereby enter into the following agreements pursuant to the provisions of
relevant laws and regulations of the PRC.
ARTICLE 1. DEFINITIONS
The terms used in this Agreement shall have the meanings set forth below:
1.1 "This Agreement" means this Operation Agreement and all appendices thereto,
including written instruments as originally executed and as may from time to
time be amended or supplemented by the Parties hereto through written
agreements.
1.2 "The PRC" means, for the purpose of this Agreement, the People's Republic of
China, excluding Hong Kong, Taiwan and Macao.
1.3 "Date" means the year, month and day. In this Agreement, "within" or "no
later than", when used before a year, month or day, shall always include the
relevant year, month or day.
ARTICLE 2. OPERATIONAL SUPPORT
2.1 Party A agrees, according to the operational needs of Party B, to act as the
guarantor of Party B in the contracts, agreements, or transactions entered into
between Party B and third parties, in order to fully guarantee the performance
by Party B of such contracts, agreements, and transactions.
2.2 Party A agrees, according to the operational needs Party B, to recommend
directors and senior management to Party B and Party B agrees to appoint the
such personnel recommended by Party A to be its directors and senior management.
The relevant personnel recommended by Party A pursuant to this Article shall
meet the qualification requirements for directors and senior management under
applicable laws.
2.3 To ensure the performance of this Agreement, Party A agrees to provide to
Party B cooperative policy advice and guidance, which is consistent with the
daily operation and financial management and the employment policy of Party B.
ARTICLE 3. OBLIGATIONS OF PARTY B
3.1 Party B agrees not to conduct the following business which may materially
affect its assts, rights, obligations and operation (except for the sales or
purchase of assets, and contracts and agreements entered into during the
ordinary course of business of Party B, and the lien imposed by the contracting
parties pursuant to the above contracts), without the prior written consent of
Party A, including but not limited to:
3.1.1 borrowing loans from any third party or bearing any debt liability;
3.1.2 selling to or obtaining any asset or rights from any third party; and
3.1.3 using its own assets to secure any real obligation of any third party.
3.2 Without the written consent of Party A, Party B shall not transfer its
rights and obligations hereunder to any third party. Party B agrees, Party A may
transfer its rights and obligations hereunder as it finds necessary, and Party A
only needs to give a
written notice to Party B after such transfer, without the necessity to obtain
any consent from Party B.
ARTICLE 4. CONSIDERATION FOR PROVIDING OPERATIONAL SUPPORT
4.1 In consideration of the above operational support provided by Party A, Party
B shall pay to Party A certain fees as specified in Exhibit 1 attached hereto.
ARTICLE 5. REPRESENTATIONS AND WARRANTIES
5.1 Each Party hereby represents to the other Party that:
5.1.1 It has all the necessary rights, powers and authorizations to enter into
this Agreement and to perform its duties and obligations hereunder; and
5.1.2 The execution or performance of this Agreement does not violate any
significant contract or agreement to which it is a party or any contract of
agreement that binds it or its assets.
ARTICLE 6. CONFIDENTIALITY
6.1 Each Party shall keep confidential all the content of this Agreement.
Without the prior consent of all Parties, no Party shall disclose any content of
this Agreement to any other party or make any public announcements with respect
to any content of this Agreement. Notwithstanding the forgoing provisions of
this Article 6, the following disclosure shall be permitted: (i) disclosure made
pursuant to any applicable laws or any rules of any stock exchange of the United
States, the PRC or other relevant jurisdictions; (ii) disclosure of information
which has become public information other than due to any breach by the
disclosing party; or (iii) disclosure to any Party's shareholders, legal
counsel, accountants, financial advisors or other professional advisors who bear
the obligation of confidentiality to such Party.
6.2 The Parties agree this Article 6 will survive any invalidity, modification,
cancellation or termination of this Agreement, if applicable.
ARTICLE 7. GOVERNING LAW AND OBLIGATIONS UPON DEFAULT
7.1 The execution, effectiveness, interpretation, performance and dispute
resolution of this Agreement shall be governed by the laws of the PRC.
7.2 Any violation of any provision hereof, incomplete performance of any
obligation provided hereunder, any misrepresentation made hereunder, material
concealment or omission of any material fact or failure to perform any covenants
provided hereunder by any Party shall constitute an event of default. The
defaulting Party shall assume all the legal liabilities pursuant to the
applicable laws.
ARTICLE 8. DISPUTE RESOLUTION
8.1 Any dispute arising from the performance of this Agreement shall be first
subject to the Parties' friendly consultations. If the parties fail to make an
written agreement within thirty days after consultation, such dispute will be
submitted to the China International Economic and Trade Arbitration Commission
("CIETAC") in accordance with its arbitration rules/procedures. The arbitration
tribunal will be composed of three (3) arbitrators, two of which shall be
appointed by both Parties hereto, and the third one shall be appointed by the
chairman of CIETAC.
8.2 The arbitration shall be administered by the Beijing branch of CIETAC in
accordance with the then effective arbitration rules of the Commission in
Beijing.
8.3 The arbitration award shall be final and binding on the Parties. The costs
of the arbitration (including but not limited to arbitration fee and attorney
fee) shall be borne by the losing party, unless the arbitration award stipulates
otherwise.
ARTICLE 9. EFFECTIVENESS
9.1 This Agreement shall be effective upon the execution hereof by both Parties
hereto.
9.2 The term of this Agreement shall be ten (10) years. Party B shall not
terminate this Agreement during this term.
9.3 Unless Party A notifies Party B of no renewal of this Agreement by giving a
thirty (30) days prior notice. This Agreement will be renewed for one year
automatically after the expiry of the term hereof. This provision will apply to
all the subsequent renewal.
ARTICLE 10. NO SUBSEQUENT OBLIGATION
10.1 Once this Agreement is terminated, Party A will not have any obligation to
provide to Party B any operational support hereunder.
ARTICLE 11. AMENDMENT
11.1 All Parties hereto shall fulfill their respective obligations hereunder. No
amendment to this Agreement shall be effective unless such amendment has been
made in written form, and agreed by both Parties and both Parties have obtained
necessary authorization and approvals with respect to such amendment. Any
modification and supplementary to this Agreement after signed by both Parties,
become an integral part of this Agreement, and has the same legal force with
this Agreement.
ARTICLE 12. COUNTERPARTS
12.1 This Agreement is executed in duplicate, and are equally authentic. Party A
and Party B shall each hold one counterpart.
ARTICLE 13. MISCELLANEOUS
13.1 The title and headings contained in this Agreement are for convenience of
reference only and shall not in any way affect the meaning or interpretation of
any provision of this Agreement.
13.2 The Parties may enter into supplementary agreements to address any issue
not covered by this Agreement. The supplementary agreements so entered shall be
an appendix hereto and shall have the same legal effect as this Agreement.
[The remaining of this page is intentionally left blank]
Exhibit 1 Consideration for Operation Guarantee
The annual fees in consideration of provision of the operational support by
Party A ("Consideration") shall be 40% of the "profits" of Party B in such year.
The "profits" of Party B in such year should be equal to (gross revenue of Party
B in such year) minus (the sales tax, sales expenses, management fees, financial
expenses and other expenses resulting from the daily operation and outside daily
operation of Party B), and such "profit" shall be the profit before paying for
other service fees as specified by the Binding Agreements. Such expenses shall
be determined by both Parties every quarter in written form, and shall be paid
by Party B within three (3) months after the accounting date.
[execution page only]
This Agreement is executed by the following Parties as of the date listed first
above.
Party A: Fortune Software (Beijing) Co., Ltd.
Seal:
Authorized Representative (Signature): [ ]
Party B: Beijing Glory Co., Ltd.
Seal:
Authorized Representative (Signature): [ ]
