EXCLUSIVE BUSINESS CONSULTANCY SERVICE AGREEMENT Between T2CN INFORMATION TECHNOLOGY (SHANGHAI) CO., LTD. And SHANGHAI JINJIE INTERNET TECHNOLOGY CO., LTD. Dated: 26 November, 2007
Exhibit 4.27
TRANSLATION
Confidential
Between
T2CN INFORMATION TECHNOLOGY (SHANGHAI) CO., LTD.
And
SHANGHAI JINJIE INTERNET TECHNOLOGY CO., LTD.
Dated: 26 November, 2007
This exclusive business consultancy service agreement (“Agreement”) is made on 26 November, 2007 in
Shanghai, People’s Republic of China (“PRC”), by and between:
| (1) | T2CN Information Technology (Shanghai) Co., Ltd., a wholly foreign-owned enterprise
established pursuant to PRC law, located at 12F, ▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, with Deng
Run-Ze as the legal representative (hereinafter called “T2CN”) |
| (2) | Shanghai Jinjie Internet Technology Co., Ltd. (legal name is to be changed to “Shanghai
Jinyou Internet Technology Co., Ltd.”), a limited liability company established pursuant to
PRC law, located at ▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇ ▇, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ New Area, Shanghai,
with ▇▇▇ ▇▇▇ Jun as the legal representative (hereinafter called “JINJIE”). |
(T2CN and JINJIE are hereinafter referred to individually as “Party” and collectively as
“Parties”.)
WHEREAS:
| (1) | The main business of T2CN includes design, development, manufacturing of computer software,
sale of self-made products, and design, development, and provision of relevant technical
consultancy and services for computer hardware. T2CN is providing business consultancy
services as well. |
| (2) | The main business of JINJIE includes the development and design of internet technology and
sale of products. |
| (3) | For the expansion of its business, JINJIE intends to retain T2CN, and T2CN agrees, to provide
business consultancy services. |
2
The parties hereby agree as follows:
| 1. | Definitions |
| 1.1 | In this Agreement, the following terms have the following meanings unless otherwise required
by the context: |
|
“JINJIE’s Business” means any and all business operated and developed by JINJIE currently
or at any time during the term of this Agreement. |
||
“Consultancy Services” means the business consultancy services supplied by T2CN to JINJIE
in relation to JINJIE’s Business, including but not limited to: |
| (1) | assistance with collection of business information, and conduct of market
research, by JINJIE in relation to JINJIE’s Business; |
| (2) | acting as an intermediary to introduce customers to JINJIE and to assist
JINJIE with building up business cooperation relations between them; |
| (3) | assistance with the setting-up by JINJIE of the database of customers and
other business information, and daily management, maintenance and update of such
database; |
| (4) | supply of advice or comments on the development and enhancement of the
corporate structure, management system and department establishment of JINJIE in order
to enhance its internal management system; and |
| (5) | such other business consultancy services as required by JINJIE from time to
time, to the extent permitted by PRC laws. |
“Service Team” means the team organised by T2CN for the purpose of providing services under
this Agreement. The team consists of T2CN’s employees and other third party professional
consultants or manpower retained by T2CN.
“Consultancy Service Fee” means all fees and expenses payable by JINJIE to T2CN for the Consultancy Services supplied by T2CN pursuant to Clause 3 of this
Agreement.
3
“Year” means a calendar year from January 1 to December 31.
“Operating Income” means the revenues generated from JINJIE’s Business as recorded under
the item of “main business revenues” on JINJIE’s balance sheets according to PRC accounting
principles in any calendar year throughout the duration of this Agreement.
| 1.2 | In this Agreement, reference to any of the laws and regulations (“Laws”) shall be deemed as
including: |
| (1) | any amendment, modification, supplement or replacement of the referenced PRC
Law, irrespective of whether it becomes effective prior to or subsequent to the date of
this Agreement; and |
| (2) | any other rulings, notices or statutory rules made in accordance with, or
otherwise effected by virtue of, the referenced PRC Law. |
| 1.3 | In this Agreement, reference to the number of the Clauses, Sub-clauses, Paragraphs, or
Sub-paragraphs shall denote the corresponding text, unless otherwise required by the context. |
|
| 2. | T2CN’s Services |
| 2.1 | In order to meet the requirements of premium Consultancy Services to be supplied hereunder,
T2CN shall make adequate allocation of human resources and other resources. T2CN may, in its
discretion, replace any member of the Service Team or adjust the specific responsibilities of
a member of the Service Team from time to time. Such replacement or adjustment shall not have
any materially adverse impact on JINJIE’s daily operation. |
| 2.2 | T2CN shall timely supply the Consultancy Services, communicate, and exchange with JINJIE any
information relating to the business and/or customers of JINJIE. |
4
| 3. | Consultancy Service Fee |
| 3.1 | JINJIE agrees to pay the Consultancy Service Fee to T2CN for the Consultancy Services
supplied by T2CN under this Agreement. For the period from 26 November 2007 to 31 December,
2008, the Consultancy Service Fee will be an amount equal to 20% of JINJIE’s Operating Income
in aggregate. Thereafter, the Parties shall adjust and confirm in writing the rate(s) for the
Consultancy Service Fee. |
|
| 3.2 | It is agreed that JINJIE shall pay the Consultancy Service Fee as follows: |
| (1) | The Consultancy Service Fee is to be settled every quarter. By 10 January,
10 April, 10 July and 10 October of each year, JINJIE shall pay T2CN the Consultancy
Service Fee for the preceding 3 months. |
| (2) | The Parties shall, after the end of JINJIE’s fiscal year, conduct the
computation of the Consultancy Service Fee payable by JINJIE on the basis of total
Operating Income for the previous Year as certified by the audit report issued by the
PRC CPA acknowledged by both Parties, and shall, within 15 days after the issue of the
audit report, make the adjustment (refund of any surplus payment or additional payment
for deficiency). JINJIE undertakes to T2CN that it will provide the PRC CPA concerned
all necessary information and assistance, and cause it to issue the audit report for
the previous Year to JINJIE and T2CN within 30 working days after the end of each
Year. |
| 3.3 | JINJIE shall pay all the Consultancy Service Fee, in accordance with this Clause 3, to the
bank account designated by T2CN by telegraphic transfer. T2CN shall issue written notice to
JINJIE 7 working days in advance of any change to the bank account. |
| 3.4 | It is agreed that the Parties shall execute a supplementary agreement (in the same form as
set out in Appendix 1) every year since 2008, to confirm specifically the calculation formula
of the amount of the Consultancy Service Fee payable by JINJIE for that Year to T2CN
under Clause 3.1 of this Agreement. The Parties shall negotiate and conclude the
supplementary agreement 1 month before the beginning of the Year in question. |
5
| 3.5 | If, throughout the duration of this Agreement, T2CN provides services not covered by this
Agreement at JINJIE’s request, the Parties agree to handle this matter by cooperation in a
manner stipulated in this Agreement or, failing which, a manner most akin to a manner
stipulated in this Agreement. The Parties shall, in such a case, make corresponding
adjustment in writing to the calculation of the Consultancy Service Fee under Clause 3.1 of
this Agreement. |
|
| 4. | JINJIE’s Obligations |
| 4.1 | The services to be supplied by T2CN under this Agreement are of an exclusive nature.
Throughout the duration of this Agreement, JINJIE shall not, without prior written consent
from T2CN, enter into any agreement with a third party for the supply by that third party of
any services identical or similar to the services supplied by T2CN under this Agreement. |
| 4.2 | JINJIE shall, at T2CN’s request, provide information precisely and punctually, as required by
T2CN to facilitate its supply of the Services. |
| 4.3 | JINJIE shall pay T2CN the Consultancy Service Fee in full on time pursuant to Clause 3 of
this Agreement. |
| 4.4 | JINJIE shall maintain its goodwill, aggressively promote its business, and maximize the
revenues. |
| 4.5 | It is acknowledged that the registered shareholders of JINJIE as of the date of this
Agreement (“Existing Shareholders”) have entered into the Agreement for Pledge of Shares with
T2CN dated 26 November 2007, whereby each of the Existing Shareholders has pledged its shares
in JINJIE in favour of T2CN, as security for the performance of the obligations under this
Agreement by JINJIE. |
6
| 5. | Intellectual Property Rights |
| 5.1 | T2CN acquires the ownership of any intellectual property rights of the work created or
developed during the course of the supply of the Services by T2CN. |
| 5.2 | JINJIE may, according to this Agreement, use any work derived from the course of the supply
by T2CN of the Consultancy Services under this Agreement, for the purposes of the performance
of this Agreement. This Agreement does not license JINJIE to use any such work in any manner
for any other purposes. |
|
| 6. | Confidentiality |
| 6.1 | Throughout the duration of this Agreement, the Parties co-own any and all customer data and
other information in respect to JINJIE’s Business or the Services (“Customer Data”). |
| 6.2 | Irrespective of whether this Agreement is terminated, the Parties shall keep in strict
confidence the trade secrets or proprietary information of the other party obtained through
the performance of this Agreement, the co-shared Customer Data, and any non-public information
of the other party (“Confidential Information"). The Party which receives the Confidential
Information (“Receiving Party") shall not disclose the same or any part of it to a third
party, except where it obtains prior written consent from the other Party, or it is required
to do so by the Laws, regulations or the rules of the related stock exchange. The Receiving
Party shall not use directly or indirectly the Confidential Information or any part thereof
otherwise than for the performance of the Agreement. |
|
| 6.3 | The following information is not considered Confidential Information: |
| (a) | information previously known by the Receiving Party as demonstrated by
written proof; |
| (b) | information that comes to the public domain through no fault on the part of
the Receiving Party, or becomes publicly known for other reasons; or |
||
| (c) | information acquired by the Receiving Party through other legitimate means. |
7
| 6.4 | The Receiving Party may disclose the Confidential Information to its relevant employees,
agents or professional personnel it retains, and shall ensure that the persons listed above
are bound by this Agreement so as to maintain the confidential state of the Confidential
Information, and the use of the Confidential Information solely for the purposes of the
performance of this Agreement. |
|
| 7. | Representation and Warranty |
|
| 7.1 | T2CN hereby represents and warrants as follows: |
| 7.1.1 | It was duly incorporated and is legally existing as a limited liability company
under the laws of the place where it was registered, is an independent juristic person,
and has complete and independent legal status and legal capacity to enter into, deliver
and perform this Agreement, and may act independently as a party to legal proceedings. |
| 7.1.2 | It possesses full powers and authorization to enter into and deliver this
Agreement, and any other documents it is to sign in relation to the transaction
contemplated under this Agreement, and to execute the transaction contemplated under
this Agreement. This Agreement is duly signed and delivered and constitutes a legal and
binding commitment by JINJIE, which may be enforced through compulsory execution
proceedings. |
| 7.2 | JINJIE hereby represents, warrants and undertakes as follows: |
| 7.2.1 | It was duly incorporated and is legally existing as a limited liability
company under the laws of the place where it was registered, is an independent
juristic person, and has complete and independent legal status and legal capacity to
enter into, deliver and perform this Agreement, and may act independently as a party
to legal proceedings. |
8
| 7.2.2 | It possesses full powers and authorization to enter into and deliver this
Agreement, and any other documents it is to sign in relation to the transaction
contemplated under this Agreement, and to execute the transaction contemplated under
this Agreement. This Agreement is duly signed and delivered and constitutes a legal
and binding commitment by T2CN, which may be enforced through compulsory execution
proceedings. |
| 7.2.3 | It shall timely notify T2CN of its involvement in any legal proceedings and
other adverse circumstances, and mitigate the losses with its best endeavours. |
| 7.2.4 | It shall not, without written consent from T2CN, dispose any of its material
assets in any manner, nor shall it change its current shareholders structure. |
| 7.2.5 | It shall not cause conclusion of any transaction which may materially affect
its assets, responsibilities, business operation, shareholders structure, shareholding
in third party companies, or any other legitimate claims (except for those concluded
in the normal course of business, or already disclosed to T2CN with T2CN’s written
approval). |
| 8. | Term |
| 8.1 | The Parties hereby acknowledge that this Agreement is formed after duly execution by both
Parties. The Parties agree that this Agreement’s effectiveness is dependent on a condition
precedent: JINJIE’s receiving Internet Content Provider’s License (“ICP License”) from related
government department of PRC; i.e. this Agreement shall become effective from the date JINJIE
receives the abovementioned ICP License. The term of this Agreement shall expire on 21
November, 2024, unless terminated earlier through written agreement by the Parties. JINJIE
shall not pay any Consultancy Service Fee to T2CN before this Agreement becomes effective. |
| 8.2 | The Parties shall adhere to their obligations under Clause 6 of this Agreement after the termination of this Agreement. The termination of this Agreement will
not discharge JINJIE from its obligation to pay any outstanding amount of the Consultancy
Service Fee under Clause 3 of this Agreement. |
9
| 9. | Notices |
| 9.1 | Any notices, requests, demands or other communications required by or issued pursuant to this
Agreement shall be delivered in writing to the Party concerned. |
| 9.2 | All notices or other communications given hereunder shall be considered to be given and
received at the time of: dispatch when sent by facsimile transmission; hand-over when hand
delivered; or 5 days after deposit in the mails when sent by post. |
|
| 10. | Default |
| 10.1 | The Parties agree and acknowledge that any material breach of, or material failure to
perform, an obligation under this Agreement by a Party (“Defaulting Party”) will constitute an
event of default (“Event of Default”), and that the other Party (“Non-defaulting Party”) may
require the Defaulting Party to rectify the same or to take remedial measures. Where the
Defaulting Party fails to do so within a reasonable period of time or 10 days after receipt of
written notice and demand for rectification from the Non-defaulting Party, the Non-defaulting
Party may choose to: |
| (1) | terminate this Agreement and claim damages in full from the Defaulting Party; or |
||
| (2) | require the Defaulting Party to continue performing its obligations under this
Agreement and claim damages in full from it. |
| 10.2 | Notwithstanding any other provisions of this Agreement, the validity of this Clause 10 shall
survive the expiry or termination of this Agreement. |
10
| 11. | Force Majeure |
Where a Party cannot perform any provisions under this Agreement or cannot perform the same
according to the agreed terms or conditions, due to an event of force majeure, such as earthquake,
typhoon, flood, fire, war, computer viruses, defect of operation software, hacker attack, a change
to the policy or laws, or any other event which is unforeseen or the consequence of which is not
preventable or is unavoidable, it shall within 30 days inform the other Party via fax immediately
and provide the details of the force majeure event, together with documentation to substantiate its
claim that this Agreement cannot be performed or is performance should be postponed. The
supporting documentation mentioned above shall be issued by a notary public in the region where the
event of force majeure occurs. The Parties shall negotiate and determine if the performance of this
Agreement is to be partially waived or postponed in light of the impact the event of force majeure
has caused. Neither Party shall be liable for any economic losses caused by an event of force
majeure.
| 12. | Miscellaneous |
| 12.1 | This Agreement is made in Chinese and executed in duplicate copies, with one copy to be held
by each Party. |
| 12.2 | The formation, effectiveness, performance, amendment, interpretation, and termination of this
Agreement shall be governed by the PRC Laws. |
| 12.3 | Any dispute arising out of or in connection with this Agreement shall be resolved through
negotiation by the Parties. Where the Parties fail to reach consensus within 30 days after
the dispute arises, the dispute shall be referred to the Shanghai Sub-commission of China
International Economic and Trade Arbitration Commission (“CIETAC”), for arbitration to be
conducted in Shanghai in accordance with CIETAC arbitration rules. The arbitral award will be
final and binding on the Parties. |
| 12.4 | Any right, privilege, or remedy granted hereunder to a Party does not preclude the other
rights, privileges or remedies the Party may be entitled to under the laws or other provisions
of this Agreement. The exercise of a right, privilege or remedy does not bar the Party from
exercising any other rights, privileges or remedies the Party may be entitled to. |
11
| 12.5 | Failure or delay by a Party in the exercise of a right, privilege or remedy it may have under
the laws or this Agreement (“Rights”) shall not be construed as a waiver. Any waiver of one
or more of the Rights does not preclude the exercise of the Rights in another manner or the
exercise of the other Rights. |
|
| 12.6 | The headings in this Agreement are for purposes of convenience and ease of reference only and
shall not be construed to limit or otherwise affect the meaning of any part of this Agreement. |
|
| 12.7 | The Agreement supersedes and replaces any other previous written or oral agreements concluded
by the Parties in respect of the subject matter hereof, and constitutes the entire agreement
between the Parties. |
|
| 12.8 | Under this Agreement, each clause is severable and independent from the others. If any
provision of this Agreement is held to be invalid, unlawful or unenforceable, the validity,
legitimacy and enforceability of the remaining provisions of this Agreement shall remain
intact. |
|
| 12.9 | Any amendment or supplement to this Agreement shall be made in writing, and become effective
only until duly signed by both Parties. |
|
| 12.10 | JINJIE shall not assign its rights and/or obligations under this Agreement to any third
party without prior written consent from T2CN. T2CN may, to the extent permitted by PRC Laws,
assign its rights and/or obligations under this Agreement to any third party with written
notice to JINJIE. |
|
| 12.11 | This Agreement is binding on any lawful successor(s) of each Party. |
|
| 12.12 | Each of the Parties undertakes to file and pay taxes in connection with the transaction
contemplated under this Agreement in accordance with the law. |
(End of Text)
12
IN WITNESS WHEREOF, this Agreement has been duly executed by each of the Parties as of the date and
place first above written.
Signed by:
T2CN Information Technology (Shanghai) Co., Ltd.
By:
Name:
Title: Authorized Representative
Name:
Title: Authorized Representative
Shanghai Jinjie Internet Technology Co., Ltd.
By:
Name:
Title: Authorized Representative
Name:
Title: Authorized Representative
13
APPENDIX 1 — FORM OF SUPPLEMENTARY AGREEMENT
This supplementary agreement (“Supplementary Agreement”) to the Exclusive Business Consultancy
Service Agreement is made on
in
, People’s Republic of China (“PRC”), by and
between:
| (1) | T2CN Information Technology (Shanghai) Co., Ltd., located at 12F, ▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇, with Deng Run-Ze as the legal representative (hereinafter called “T2CN”) |
| (2) | Shanghai Jinjie Internet Technology Co., Ltd., located at ▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇ ▇, ▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ New Area, Shanghai, with ▇▇▇ ▇▇▇ Jun as the legal representative
(hereinafter called “JINJIE”). |
(JINJIE and T2CN are hereinafter referred to individually as “Party” and collectively as
“Parties”.)
Pursuant to the provisions of the Exclusive Business Consultancy Service Agreement made by the
Parties on 26 November 2007, the Parties hereby enter into this Supplementary Agreement as follows:
The Consultancy Service Fee that JINJIE shall pay T2CN for
Year
under Clause 3.1 and Clause
3.2 of the Exclusive Business Consultancy Service Agreement shall be calculated as follows:
| T2CN Information Technology (Shanghai) Co., Ltd. | Shanghai Jinjie Internet Technology Co., Ltd. | |||||
Signed by:
|
Signed by: | |||||
Name:
|
Name: | |||||
Title:
|
Authorised Representative | Title: | Authorised Representative | |||
14