Business Operations Agreement
Exhibit
4.57
This
Business Operations Agreement (this “Agreement”) is entered into on the day of
June 29, 2009 by and among the following parties (“the Parties”):
Party A: Simlife (Beijing) Science
Co., Ltd.
Address:
Rm.416 Xx.00, Xxxx Xxxx Xxxxx Xxxx, Xxxxxxx Economic and Technology Development
Zone, Beijing
Tax:
00000000
Tel:
00000000
Party B: Xiamen Xinreli Scientific and
Technology Co, Ltd.
Address:
14A, No.2. Lianqian West Road, Siming District.
Tax:
00-000-0000000
Tel:
00-000-0000000
Party
C:
Shareholder
I: Xxx Xxx; ID No. : 110105197802109636
Address:
00X, Xxxxxx Xxxxx Xx.000 Xxxxx Xxxxxx Xxxxxxx Xxxxxxxx, Xxxxxxx,
XXX.
Shareholder
II: Chen Xxx Xxxx; ID No. : 350203750427403
Address:
Xx.00, Xx.000, Xxxxx Xxxx Siming, Siming District, Xiamen, Fujian,
PRC.
WHEREAS:
1.
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Party
A is a wholly foreign-owned enterprise registered and validly existing in
the PRC;
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2.
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Party
B, a wholly domestic-owned 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
Technical Consulting and Services Agreement, under which Party B
shall pay all incomes from main business operations to Party A, and
subsequently 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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Shareholder
I and Shareholder II of Party C are shareholders of Party B (the
“Shareholders of Party B”).
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Party A,
Party B and Party C, through friendly negotiation in the principle of equality
and common interest, hereby jointly agree the following:
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 its obligations to Party A and Party C hereby jointly confirm and agree
that Party B will not conduct any transaction which may materially affect its
assets, business, employees, obligations, rights or the company’s operation
unless a prior written consent from Party A or another Party appointed by Party
A, including but not limited to the following contents, has been
obtained:
1.1
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To
conduct any business which is beyond normal business operations, or
operate the company’s business in any way which is general and
inconsistent with past ;
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1.2
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To
borrow money or incur any debt from any third
party;
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1.3
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To
change or dismiss any directors or to dismiss and replace any senior
management officers;
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1.4
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To
sell to or acquire from any third party any assets or rights exceeding RMB
Ten thousand Yuan, including but not limited to any intellectual property
rights;
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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 place its assets
under any other obligations;
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1.6
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To
amend the Articles of Association of the company or to change its scope of
business;
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1.7
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To
change the normal business process or modify any material by
laws;
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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
make material amendments to its business mode, marketing strategy,
operation principles or customer
relationship;
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1.10
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To
distribute bonus and dividend in any
way.
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2
2.
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Management
of Operation and Arrangements of
HR
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2.1
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Party
B together with its shareholders hereby jointly agree to accept and
strictly enforce the proposals in respect of the employment and dismissal
of its employees, the daily business management and financial management,
etc., provided by Party A and the managerial personnel relating to
financial and human resources from time to
time.
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2.2
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Party
B together with the Shareholders of Party B hereby jointly agree that the
Shareholders of Party B shall only appoint candidates designated by Party
A as the directors of Party B in accordance with the procedures regulated
by laws and regulations and the Article of Association of the company, and
cause the chosen directors to elect Party A’s president candidate as
President of the company, and Party B shall engage Party A’s nominees
as Party B’s General
Manager, Chief Financial Officer, and other senior
officers.
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2.3
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If
any of the above officers designated by Party A quits or is dismissed by
Party A, he or she will lose the qualification to undertake any positions
in Party B and therefore the Shareholders of Party B shall promptly
dismiss the above officers who hold any positions in Party B and appoint
other nominees of Party A to assume such
positions.
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2.4
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For
the purpose of 2.3, the Shareholders of Party B shall take all necessary
inside and outside procedures to accomplish the above dismissal and
engagement in accordance with the laws, the Articles of Association of the
company and the provision of this
Agreement..
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2.5
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The
Shareholders of Party B hereby agree, simultaneously with the execution of
this Agreement, to sign Powers of Attorneys as provided in Appendix 1,
according to which the Shareholders of Party B will irrevocably authorize
personnel designated by Party A to exercise their shareholders’ rights and
their full voting rights as shareholders at Party B’s shareholders’
meetings. The Shareholders of Party B further agree to replace the
authorized persons appointed in the above mentioned Power of Attorney at
any time at the request of Party
A.
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3.
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Other
Agreements
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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 is entitled to terminate all agreements
between Party A and Party B including but not limited to the Exclusive
Technical 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 establishes
through the Exclusive Technical Consulting and Services Agreement and
other agreements and the daily business operations of Party B shall bear a
material impact on its capacity to pay the payables to Party A, the
Shareholders of Party B jointly agree that they will immediately and
unconditionally pay or transfer without compensation to Party A any bonus,
dividends or any other incomes or benefits (regardless of the forms)
obtained from Party B as shareholders of Party B at the time such payables
occur, and provide all the documents and take actions for the aforesaid
payment or assignment at the request of Party
A.
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3
4.
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Entire
Agreement and Modifications
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4.1
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This
Agreement together with all the other agreements and/or documents
mentioned or explicitly included in this Agreement will be part of the
whole agreement concluded in respect of the matters in this Agreement and
shall replace all other prior oral and written agreements, contracts,
understandings and communications among all the parties involving this
matters.
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4.2
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Any
amendment to this Agreement shall take effect only after it is executed by
all Parties. The amendment and supplement duly executed shall be part of
this Agreement and shall have the same legal effect as this
Agreement.
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5.
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Governing
Law
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The
execution, effect, performance and the resolution of disputes of this Agreement
shall be governed by and construed in accordance with the PRC laws.
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 through negotiation in good faith. 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 the current rules of CIETAC. The
arbitration proceedings shall take place in Beijing and shall be conducted
in Chinese. The arbitration award shall be final and binding upon all
parties.
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6.2
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Each
Party shall continue to perform its obligations in good faith according to
the provisions of this Agreement except for the matters in
dispute.
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7.
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Notice
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7.1
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Notices
for the purpose of exercising the rights and performing the obligations
hereunder shall be in writing and be delivered by personal delivery,
registered or mail or postage prepaid mail, recognized courier service or
by facsimile transmission to the address of the relevant party or parties
set forth below.
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Party A:
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Simlife
(Beijing) Science Co., Ltd.
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Address:
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Rm.416
Xx.00, Xxxx Xxxx Xxxxx Xxxx, Xxxxxxx Economic and Technology Development
Zone, Beijing
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4
Fax:
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00000000
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Tele:
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85805125
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Addressee:
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Xxxx
XxxXxxx
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Party B:
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Xiamen
Xinreli Scientific and Technology Co,
Ltd.
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Address:
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00X,
Xx.0. Xxxxxxxx Xxxx Xxxx, Xxxxxx
Xxxxxxxx.
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Fax:
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00-000-0000000
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Tele:
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00-000-0000000
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Addressee:
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Xxxx
XxxXxxx
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Party
C:
Shareholder
I, Xxx Xxx
Address:
00X, Xxxxxx Xxxxx Xx.000 Xxxxx Xxxxxx Xxxxxxx Xxxxxxxx, Xxxxxxx,
XXX.
Fax:
00000000
Tel:
00000000
Addressee:
Xxxx XxxXxxx
Shareholder
II, Xxxx XxxXxxx
Address:
Xx.00, Xx.000, Xxxxx Xxxx Siming, Siming District, Xiamen, Fujian,
PRC
Fax:
00-000-0000000
Tel:
00-000-0000000
Addressee:
Xxxx XxxXxxx
8.
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Effect,
Term and Other About This Agreement
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8.1
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Any
written consent, suggestion, appointment or other decisions which have
material effects on Party B’s daily business operations involved in this
Agreement shall adopted by the board of directors of Party
A.
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8.2
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This
Agreement will take effect upon execution by duly authorized
representatives of all parties and the
term of this Agreement will last for a period of ten (10) years from the
Effective Date unless earlier terminated by Party A. Prior to the
termination of this agreement. Upon the request from Party A, the term of
this Agreement shall renewed, or separate Business Operation Agreement
shall be entered into by the Parties at the request of Party
A.
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8.3
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Party
B and the Shareholders of Party B shall not terminate this Agreement
within the term of this Agreement while Party A is entitled to terminate
this Agreement any time by issuing a written notice to Party B and the
Shareholders of Party B 30 days prior to the
termination.
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5
8.4
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The
parties agree and confirm this fair and equitable Agreement is executed on
the basis of equality and mutual benefit. In
case any term or provision in this Agreement is regarded as illegal or can
not be performed in accordance with the applicable law, it shall be deemed
to be deleted from this Agreement and be null and void, and this Agreement
shall be treated as without it from the very beginning. However, the rest
of the provisions will remain effective. The parties shall replace the
deleted provisions with lawful, effective and mutually acceptable ones
through negotiations.
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8.5
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Any
non-exercise of any rights, powers or privileges hereunder shall not be
deemed as a waiver thereof. Any single or partial exercise of such rights,
powers or privileges shall not exclude one party from exercising any other
rights, powers or privileges.
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8.6
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The
shareholders of Party C undertake that with any alternation in proportion
of the equity interest held by Party C, this Agreement shall be binding
upon Party C. And all the equity interests in Party C on the occasion
shall be bound by this
Agreement.
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8.7
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Party
A may transfer all its rights and obligations to any third party without
Party B’s prior consent, provided that Party A shall inform Party B by
issuing a written notice.
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IN WITNESS WHEREOF the parties
hereto have caused this Agreement to be duly executed on their behalf by duly
authorized representatives as of the Effective Date first written
above.
6
(No text
on this page. Only for signature)
Party
A:
Simlife
(Beijing) Science Co., Ltd.
(Seal)
Party
B:
Xiamen
Xinreli Scientific and Technology Co, Ltd.
(Seal)
Party
C:
Shareholder
I
/s/ Xxx
Xxx
Shareholder
II
/s/ Chen
Xxx Xxxx
7