Business Operations Agreement By and between Yuanwei Xie Xin WANG Zhilian Wangpin (Beijing) Technology Co., Ltd And Beijing Zhilian Sanke Human Resources Service Co., Ltd May 2, 2014
Exhibit 10.12
By and between
Xxxxxxx Xxx
Xxx XXXX
Zhilian Wangpin (Beijing) Technology Co., Ltd
And
Beijing Zhilian Sanke Human Resources Service Co., Ltd
May 2, 2014
This Business Operations Agreement (this “Agreement”) is entered into as of May 2, 2014 in Beijing, People’s Republic of China (“PRC”) by and among:
Party A: Zhilian Wangpin (Beijing) Technology Co., Ltd
Address: Xxxx 000, Xxxxxxxxx Xxxxxxxx, Xx. 00 Xxxxxxx Xxxx, Xxxxxxx Xxxxxxxx, Xxxxxxx;
Legal representative: Xxxxx Xxx
Party B: Beijing Zhilian Sanke Human Resources Service Co., Ltd
Address: Xxxx 000, 0/X, Xxxxx Xxxxxxxxxxxxx Xxxxxx, 000 Xxxxxxxx Xxxxx Xxxx, Xxxxxxxx Xxxxxxxx, Xxxxxxx
Legal representative: Xx Xxxx
Party C: Xxxxxxx Xxx
Residence: Xxxx 000, Xx. 00 Xxxxxxxxxxxx, Xxxxx Xxxxxxxx, Xxxxxxxx
ID card No.: ***
Party D: Xxx XXXX
Residence: Xxxx 000, Xxxxxxxx 00, Xx. 00 Xxxxxxxxxxxx, Xxxxxx District, Nanjing
ID Card No.: ***
Whereas,
| 1. | Party A is a wholly foreign-owned enterprise duly incorporated and existing under the PRC laws, having technical expertise and practical experience in the development and design of computer software, as well as rich experience and professionals in information technology and services; |
| 2. | Party B is a limited liability company duly incorporated and existing under the PRC laws, having the due right to be engaged in the registration and recommendation of full-time or part-time job seekers, training, information consulting, job recommendation and Internet information services, designing, producing and publishing advertisement, advertising agency services and computer graphic designing; |
| 3. | Party C and Party D are both PRC citizens and shareholders of Party B, each of whom holds 50% of the equity interest of Party B; |
| 4. | Party A has established a business relationship with Party B by entering into an Exclusive Consulting and Service Agreement (“Service Agreement”); Party B, pursuant to such agreement, is liable to pay a certain amount of money to Party A. Therefore, both parties are aware that the daily operation of Party B will have a material effect on its capacity to pay such payable amount to Party A; |
| 5. | The Parties hereby agree to further clarify, through the terms of this Agreement, the matters in connection with Party B’s operation. |
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NOW, THEREFORE, in order to set forth the respective rights and obligations of the Parties, the Parties hereby agree as follows through friendly negotiations:
| 1. | On the premises that Party B complies with the relevant provisions hereinafter, Party A agrees to act as Party B’s guarantor in the contracts, agreements or transactions concluded by and between Party B and any other third party in connection with Party B’s business operations to provide full guarantee on Party B’s performance of such contracts, agreements or transactions. Party B agrees to pledge the accounts receivable in its business operation and all of its assets to Party A as counter-guarantee. According to such performance guarantee arrangement, Party A is willing to sign, whenever necessary, a written guarantee contract with each of Party B’s contractors to undertake its responsibility as guarantor; to this end, Parties B and C will take any necessary action (including but not limited to signing the relevant documents and handling relevant applicable registration formalities) to execute the counter-guarantee arrangement toward Party A. |
| 2. | In consideration of the above Article 1 and with an aim to assure the performance of the various operation agreements between Party A and Party B and the payment of the accounts payable by Party B to Party A, Party B together with its shareholders, Party C and Party D, hereby jointly agree that Party B shall not conduct any transaction which may materially affect its assets, obligations, rights or the company’s operation (excluding the business contracts, agreements, sale or purchase of assets during Party B’s normal course of business and the lien thus obtained by relevant counter parties due to such transactions) unless a prior written consent has been obtained from Party A. such transaction shall include but not be limited to: |
2.1 to 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 a security interest for any third party with its assets or intellectual property rights;
2.4 to assign to any third party its business agreements.
| 3. | Party C and Party D, as Party B’s shareholders, further covenant to Party A that: |
3.1 not to sell, transfer, pledge or otherwise dispose of the legitimate or other beneficial interest in their equity interests of Party B, nor to allow other security interests to be created on it without Party A’s prior written consent, except for the benefit of Party A and/or its designated person;
3.2 not to approve the shareholders’ resolution which may result in Party B’s merger or combination with, purchase of or investment in, or Party B’s purchase by, any other person (other than by Party A or its designated person) without Party A’s prior written consent;
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3.3 not to commit any act and/or omission that may materially affect the assets, business and liabilities of Party B without Party A’s prior written consent; not to sell, transfer, pledge or otherwise dispose of the legitimate or other beneficial interests in any of Party B’s assets, business or income, nor to allow other security interests to be created on it without Party A’s prior written consent, at any time since the date of execution of this Agreement;
3.4 not to request Party B or approve at shareholder’s meeting to distribute dividends or profits to shareholders without Party A’s written consent;
3.5 not to supplement, amend or modify Party B’s articles of association, or to increase or decrease its registered capital, or to change the capital structure of Party B in any way without Party A’s written consent; and
3.6 to agree to execute the Power of Attorney attached hereto as requested by Party A on the day of execution of this Agreement.
| 4. | In order to ensure the performance of the Service Agreement 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 and Party D, hereby jointly agree to accept, the corporate policy advice and guidance provided by Party A at any time in connection with the employment and dismissal of Party B’s employees, daily operation, financial management and so on. |
| 5. | Party B together with its shareholders, Party C and Party D, hereby jointly agree that Party C and Party D shall appoint the person recommended by Party A as the directors of Party B, and Party B shall appoint the senior officers employed by Party A or its affiliates as recommended by Party A to act as Party B’s General Manager, financial controller and other senior officers. If any of the above senior officers either leaves or is dismissed by Party A or its affiliates, he or she will lose the qualification to take any position in Party B and Party B shall appoint other senior officers employed by Party A or its affiliates as recommended by Party A to assume such position. In this circumstance, the person recommended by Party A should comply with the stipulation on the statutory qualifications of directors, General Manager, financial controller, and other senior officers pursuant to applicable law. |
| 6. | Party B together with its shareholders, Party C and Party D, hereby jointly agree and confirm that Party B shall first seek the guarantee from Party A if it needs any guarantee for its performance of any contract or working capital loans in the course of operation. In such case, Party A shall have the right but no obligation to provide the appropriate guarantee to Party B at its own discretion. If Party A decides not to provide such guarantee, Party A shall issue a written notice to Party B in a timely manner and Party B may seek a guarantee from a third party accepted by Party A in writing. |
| 7. | In the event that the Service Agreement or other agreements between Party A and Party B terminates or expires, Party A shall have the right but no obligation to terminate all the agreements between Party A and Party B. |
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| 8. | Any amendment and supplement to this Agreement shall be made in writing. Any agreements on such amendment and supplement duly executed by all the parties shall be deemed as a part of this Agreement and shall have the same legal effect as this Agreement. |
| 9. | If any article hereof is judged as invalid or non-enforceable due to its inconsistency with the relevant laws, such article shall be deemed invalid only within the applicable area of such laws without affecting the legal effect of other articles hereof in any way. |
| 10. | 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 at the occurrence of such transfer, and no further consent from Party B will be required. |
| 11. | This Agreement (including the Power of Attorney attached hereto) shall be binding upon the respective successors or inheritors of Party C and Party D. |
| 12. | 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 Party A. 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 10 hereof. |
| 13. | This Agreement shall be terminated on the expiring date unless it is renewed in accordance with the relevant provisions herein. During the valid term of this Agreement, Party B shall not terminate or rescind this Agreement. Notwithstanding the above stipulation, Party A shall have the right to terminate this Agreement at any time by issuing a written notice to Party B. |
| 14. | All parties acknowledge and confirm that any oral or written materials exchanged by and between the Parties in connection with this Agreement are confidential. 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 will be known by the public (excluding the receiving party discloses such documents to the public without authorization); (b) any documents required to be disclosed in accordance with applicable laws or rules or regulations of stock exchange; or (c) if any documents are required to be disclosed by any Party to its legal counsel or financial consultant for the purpose of the transaction of this Agreement, such legal counsel or financial consultant shall also comply with the confidentiality obligation similar to that 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 even if this Agreement is judged as void, amended, cancelled, terminated or unable to perform for any reason whatsoever. |
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| 15. | The formation, validity, performance and interpretation of this Agreement as well as the resolution of any disputes thereon shall be governed by the PRC laws. |
| 16. | The parties hereto shall strive to settle any dispute arising from the interpretation or performance of the terms under this Agreement (including the Power of Attorney attached hereto) through friendly consultation in good faith. In case no settlement can be reached through consultation within thirty (30) days after such dispute occurs, any Party can submit such matter to Beijing Arbitration Commission for arbitration in accordance with its then effective rules. The arbitration shall take place in Beijing. The arbitration award shall be final and binding upon all the Parties. If any dispute occurs and is in process of arbitration, other than the matters in dispute, the Parties shall perform the other rights and obligation pursuant to this Agreement. |
| 17. | This Agreement shall be executed by each of the Parties itself or a duly authorized representative of each party as of and effective from the date first written above. |
| 18. | This Agreement shall, upon its effectiveness, constitute the entire agreement and common understanding of the parties with respect to the subject matters herein and fully supersedes all prior verbal and written agreements and understandings with respect to the subject matters herein. |
| 19. | The original of this Agreement is in four (4) copies, each party holds one and all originals are equally valid. |
[No text below]
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[Signature Page of Business Operations Agreement]
IN WITNESS THEREOF, each Party hereto have caused this Agreement duly executed by itself or their respective legal representative or a duly authorized representative on its behalf as of the date first written above.
Zhilian Wangpin (Beijing) Technology Co., Ltd
(seal)
/s/ Zhilian Wangpin (Beijing) Technology Co., Ltd
Name:
Position:
Beijing Zhilian Sanke Human Resources Service Co., Ltd
(seal)
/s/ Beijing Zhilian Sanke Human Resources Service Co., Ltd
Name:
Position:
Xxxxxxx Xxx
/s/ Xxxxxxx Xxx
Xxx Xxxx
/s/ Xxx XXXX
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Appendix: Powers of Attorney
Power of Attorney
I, Xxxxxxx Xxx, citizen of the People’s Republic of China (the “PRC”) with ID No. of ***, is the shareholder of Beijing Zhilian Sanke Human Resources Service Co., Ltd. (“Zhilian Sanke”) holding 50% equity interest of Zhilian Sanke, hereby irrevocably authorize the person designated by Zhilian Wangpin (Beijing) Technology Co., Ltd (“Zhilian Wangpin”) with the following powers and rights during the period of validity of this Power of Attorney:
I hereby authorize the person appointed by Zhilian Wangpin to exercise, on my behalf, all my rights as shareholder in accordance with PRC laws and Zhilian Sanke’s Articles of Association at the shareholders’ meetings of Zhilian Sanke, including but not limited to the right to call the shareholder’s meeting, accept the notice regarding the shareholder’s meeting and its discussion procedures, attend the shareholder’s meeting and exercise all voting rights represented by the 50% of Zhilian Sanke’s equity interest (including acting as my authorized representative to elect, designate or appoint the director, general manager, financial controller or other senior management personnel, to decide such matters as distribution of dividend), and to sell or transfer any or all of my equity interest held in Zhilian Sanke.
Such authorization and appointment are based upon the precondition that such person designated by Zhilian Wangpin is acting as an employee of Zhilian Wangpin or its affiliates and Zhilian Wangpin consents to such authorization and appointment in writing. Once such person designated by Zhilian Wangpin ceases to act as an employee of Zhilian Wangpin or its affiliates or Zhilian Wangpin notifies me to terminate such authorization and appointment, I shall withdraw such authorization and appointment granted hereby immediately and designate and authorize another individual nominated by Zhilian Wangpin to exercise the full aforesaid rights on my behalf at the shareholders’ meetings of Zhilian Sanke. If I die, I agree that my rights and obligations hereunder shall be immediately succeeded by the person designated by Zhilian Wangpin.
During the period when Zhilian Sanke is validly existing, unless the Business Operation Agreement jointly signed by and between Zhilian Wangpin and Zhilian Sanke is terminated for any reason whatsoever, this Power of Attorney will remain valid for an initial period of ten (10) years starting from the date when this Power of Attorney was executed. At the expiry hereof and upon the request of Zhilian Wangpin, I will extend the period of validity hereof as requested by Zhilian Wangpin. This Power of Attorney shall not be modified or terminated throughout its period of validity unless otherwise agreed by Zhilian Wangpin in writing.
| Xxxxxxx Xxx | ||||||||
| , 2014 |
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Power of Attorney
I, Xxx XXXX, citizen of the People’s Republic of China (the “PRC”) with ID No. of , is the shareholder of Beijing Zhilian Sanke Human Resources Service Co., Ltd. (“Zhilian Sanke”) holding 50% equity interest of Zhilian Sanke, hereby irrevocably authorize the person designated by Zhilian Wangpin (Beijing) Technology Co., Ltd (“Zhilian Wangpin”) with the following powers and rights during the period of validity of this Power of Attorney:
I hereby authorize the person appointed by Zhilian Wangpin to exercise, on my behalf, all my rights as shareholder in accordance with PRC laws and Zhilian Sanke’s Articles of Association at the shareholders’ meetings of Zhilian Sanke, including but not limited to the right to call the shareholder’s meeting, accept the notice regarding the shareholder’s meeting and its discussion procedures, attend the shareholder’s meeting and exercise all voting rights represented by the 50% of Zhilian Sanke’s equity interest (including acting as my authorized representative to elect, designate or appoint the director, general manager, financial controller or other senior management personnel, to decide such matters as distribution of dividend), and to sell or transfer any or all of my equity interest held in Zhilian Sanke.
Such authorization and appointment are based upon the precondition that such person designated by Zhilian Wangpin is acting as an employee of Zhilian Wangpin or its affiliates and Zhilian Wangpin consents to such authorization and appointment in writing. Once such person designated by Zhilian Wangpin ceases to act as an employee of Zhilian Wangpin or its affiliates or Zhilian Wangpin notifies me to terminate such authorization and appointment, I shall withdraw such authorization and appointment granted hereby immediately and designate and authorize another individual nominated by Zhilian Wangpin to exercise the full aforesaid rights on my behalf at the shareholders’ meetings of Zhilian Sanke. If I die, I agree that my rights and obligations hereunder shall be immediately succeeded by the person designated by Zhilian Wangpin.
During the period when Zhilian Sanke is validly existing, unless the Business Operation Agreement jointly signed by and between Zhilian Wangpin and Zhilian Sanke is terminated for any reason whatsoever, this Power of Attorney will remain valid for an initial period of ten (10) years starting from the date when this Power of Attorney was executed. At the expiry hereof and upon the request of Zhilian Wangpin, I will extend the period of validity hereof as requested by Zhilian Wangpin. This Power of Attorney shall not be modified or terminated throughout its period of validity unless otherwise agreed by Zhilian Wangpin in writing.
| Xxx Xxxx | ||||||||
| , 2014 |
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