Entrusted Management Agreement
Among
Dalian Fushi Enterprise Group Co., Ltd.
Yang Yue
Yang Xishan
Xu Chunyan
Dalian Fushi Bimetallic Manufacturing Co., Ltd
and
Dalian Diversified Product Inspections Bimetallic Cable Co., Ltd.
December 13, 2005
Dalian, China
Entrusted Management Agreement
This Entrusted Management Agreement (the "Agreement") is entered into on
the 13th day of December 2005 in Dalian, China by:
Party A: 1. Dalian Fushi Enterprise Group Co., Ltd., an enterprise registered I
Dalian, PRC with registration number 2102002009195 on its legal and valid
Business License, owns 87.73% shares of Dalian Fushi Bimetallic Manufacturing
Co., Ltd;
2. Yang Yue, a citizen of PRC with ID Card number 210105681115317, owns
10% shares of Dalian Fushi Bimetallic Manufacturing Co., Ltd.,
3. Yang Xishan, a citizen of PRC with ID Card number 211202391010301, owns
1.64% shares of Dalian Fushi Bimetallic Manufacturing Co., Ltd
4. Xu Chunyan, a citizen of PRC with ID Card number 210221571122078, owns
0.63% shares of Dalian Fushi Bimetallic Manufacturing Co., Ltd
5. Dalian Fushi Bimetallic Manufacturing Co., Ltd. is an enterprise
incorporated and existing within the territory of China in accordance with the
law of the People's Republic of China, the registration number of its legal and
valid Business License is 2102131105371, and the legal registered address is No.
999 Wuyi Road, Jinzhou District, Dalian.
and
Party B: Dalian Diversified Product Inspections Bimetallic Cable Co., Ltd., is a
wholly-foreign owned enterprise registered in Dalian, PRC, and the registration
number of its legal and valid Business License is 013282,
Whereas:
1. Party A constitutes Dalian Fushi Bimetallic Manufacturing Co., Ltd.
(hereinafter referred to as Dalian Fushi Company) and all of its shareholders
holding all issued and outstanding shares of Dalian Fushi Company. Under this
Agreement, Dalian Fushi Enterprise Group Co., Ltd., Yang Yue, Yang Xishan and Xu
Chunyan have acted collectively as one party to this Agreement;
2. Dalian Diversified Product Inspections Bimetallic Cable Co., Ltd.
(hereinafter referred to as Party B) is a wholly-foreign owned enterprise
incorporated and existing within the territory of China in accordance with the
law of the People's Republic of China, the registration number of its legal and
valid Business License is 013282, and the legal registered address is No.50
Anshan Road, Shahekou District, Dalian.
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3. According to the Purchase Agreement between Dalian Fushi Company and
Party B pursuant to which Dalian Fushi Company agrees to sell its principal
production assets to Party B, and lease the remaining equipment, manufacturing
plants (except for the building located on 8 Hai La'er Road), and land (except
for the land located on 8 Hai La'er Road) to Party B. As a result, Dalian Fushi
Company will not have any production or manufacturing activities, but will have
certain assets and debts to manage. Accordingly, Party A desires to entrust
Dalian Fushi Company to Party B to manage the remaining assets and debts;
4. Party B agrees to accept such entrustment and to manage Dalian Fushi
Company on behalf of Party A.
Therefore, in accordance with laws and regulations of the People's
Republic of China, the Parties agree as follows after friendly consultation
based on the principle of equality and mutual benefit.
Article 1 Entrusted Management
1.1 Party A agrees to entrust the management of Dalian Fushi Company to
Party B pursuant to the terms and conditions of this Agreement. Party B agrees
to manage Dalian Fushi Company in accordance with the terms and conditions of
this Agreement.
1.2 The term of this Entrusted Management Agreement shall be from the
effective date of this Agreement to the earlier of the following:
(1) the winding up of Dalian Fushi Company, or
(2) the termination date of this Entrusted Management Agreement to be
determined by the Parties hereto, or
(3) the date on which Party B completes the acquisition of Dalian Fushi
Company.
1.3 The goals of the entrusted management are to allow Dalian Fushi
Company, prior to being acquired by Party B through asset or equity purchase, 1)
to repay its borrowings from banks, pay off its existing accounts payable, 2) to
manage its remaining assets prior to being acquired by Party B, 3) to remit all
of Dalian Fushi Company's net profit (if any) to Party B and, 4) to allow Party
B to bear all of Dalian Fushi Company's loss. During the entrusted period, Party
B shall be fully responsible for the management of Dalian Fushi. The management
service includes without limitation the following:
(1) Party B shall be fully responsible for the operation of Dalian
Fushi, which includes the right to appoint and terminate members of
Board of Directors and the right to hire managerial and
administrative personnel etc. Party A or its voting proxy shall make
a shareholder's resolution and a board of directors' resolution
based on the decision of Party B's Board of Directors.
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(2) Party B has the right to manage and control all assets of Party A.
Dalian Fushi shall open an entrusted account or designate an
existing account as an entrusted account. Party B has the full right
to decide the use of the funds in the entrusted account. The signer
of the account shall be appointed or confirmed by Party B. All of
the funds of Dalian Fushi shall be kept in this account, including
but not limited to its existing working capital and purchase price
received from selling its production equipment, inventory, raw
materials and accounts receivable to Party B, all payments of funds
shall be disbursed through this entrusted account, including but not
limited to the payment of all existing accounts payable and
operating expenses, payment of employees salaries and purchase of
assets, and all revenues from its operation shall be kept in this
account.
(3) Party B shall have the full right to control and administrate the
financial affairs and daily operation of Dalian Fushi, such as
entering into and performance of contracts, and payment of taxes
etc.
(4) If Dalian Fushi requires additional funds to maintain its
operations, Party B shall provide such additional funds through a
bank loan or other resources and Party A shall provide necessary
assistance in obtaining these funds.
1.4 In order to perform this Entrusted Management Agreement, Party A shall
pay an entrusted management fee to Party B in order to obtain the net profits
(if any) of Dalian Fushi. The entrusted management fee shall be as follows:
during the term of this agreement, the entrusted management fee shall equal to
Dalian Fushi's net profits, being the monthly revenues after deduction of
operating costs, expenses and taxes. If the net profit is zero, Dalian Fushi is
not required to pay the entrusted management fee; if Dalian Fushi sustains
losses, all such losses will be carried over to next month and deducted from
next month's entrusted management fee. Both Parties shall calculate, and Party A
shall pay, the monthly entrusted management fee within 20 days of the following
month.
1.5 Party B shall assume all operation risks out of the entrusted
management of Dalian Fushi and bear all losses of Dalian Fushi. If Dalian Fushi
has no sufficient funds to repay its debts, Party B is responsible for paying
off these debts on behalf of Dalian Fushi; if Dalian Fushi's net assets are
lower than its registered capital, Party B is responsible for funding the
deficit.
Article 2 Rights and Obligations of the Parties
2.1 During the term of this Agreement, Party A's rights and obligations
include:
(1) to hand over Dalian Fushi Company to Party B for entrusted
management as of the effectiveness date of this Agreement and to
hand over all of business materials together with Business License
and corporate seal of Dalian Fushi Company to Party B;
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(2) Party A has no right to make any decision regarding Dalian Fushi's
operations without the consent of Party B;
(3) to have the right to know the business conditions of Dalian Fushi
Company at any time and provide proposals;
(4) to assist Party B in carrying out the entrusted management according
to Party B's requirement;
(5) to perform its obligations pursuant to the Shareholders' Voting
Rights Proxy Agreement by and between the Parties, and not to
violate the said agreement;
(6) not to intervene Party B's management over Dalian Fushi Company in
any form by making use of shareholder's power;
(7) not to entrust or grant their shareholders' rights in Dalian Fushi
Company to a third party other than Party B without Party B's
consent;
(8) not to otherwise entrust other third party other than Party B to
manage Dalian Fushi Company in any form without Party B's consent;
(9) not to terminate this Agreement unilaterally with any reason; or
(10) to enjoy other rights and perform other obligations under the
Agreement.
2.2 During the term of this Agreement, Party B's rights and obligations include:
(1) to enjoy independent and full right to manage Dalian Fushi Company;
(2) to enjoy the right to dispose of all assets of Dalian Fushi Company;
(3) to enjoy profits and bear losses arising from Dalian Fushi Company's
operations during the period of entrusted management;
(4) to appoint all directors of Dalian Fushi Company;
(5) to appoint general manager, deputy general manager, financial
manager and other senior managerial personnel of Dalian Fushi
Company;
(6) to convene shareholders' meetings of Dalian Fushi Company in
accordance with the Shareholders' voting Rights Proxy Agreement and
sign resolutions of shareholders' meetings; and
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(7) to enjoy other rights and perform other obligations under the
Agreement.
Article 3 Representation and Warranties
The Parties hereto hereby make the following representations and
warranties to each other as of the date of this Agreement that:
(1) has the right to enter into the Agreement and the ability to perform
the same;
(2) the execution and delivery of this Agreement by each party have been
duly authorized by all necessary corporate action;
(3) the execution of this Agreement by the officer or representative of
each party has been duly authorized(pound)>>
(4) each party has no other reasons that will prevent this Agreement
from becoming a binding and effective agreement between both parties
after execution;
(5) the execution and performance of the obligations under this
Agreement will not:
(a) violate any provision of the business license, articles of
association or other similar documents of its own;
(b) violate any provision of the laws and regulations of PRC or
other governmental or regulatory authority or approval;
(c) violate or result in a breach of any contract or agreement to
which the party is a party or by which it is bound.
Article 4 Effectiveness
This Agreement shall take effect after it is duly executed by the
authorized representatives of the parties hereto with seals affixed.
Article 5 Liability for Breach of Agreement
During the term of this Agreement, any violation of any provisions herein
by either party constitutes breach of contract and the breaching party shall
compensate the non-breaching party for the loss incurred as a result of this
breach.
Article 6 Force Majeure
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The failure of either party to perform all or part of the obligations
under the Agreement due to force majeure shall not be deemed as breach of
contract. The affected party shall present promptly valid evidence of such force
majeure, and the failure of performance shall be settled through consultations
between the parties hereto.
Article 7 Governing Law
The conclusion, validity, interpretation, and performance of this
Agreement and the settlement of any disputes arising out of this Agreement shall
be governed by the laws and regulations of the People's Republic of China.
Article 8 Settlement of Dispute
Any disputes under the Agreement shall be settled at first through
friendly consultation between the parties hereto. In case no settlement can be
reached through consultation, each party shall have the right to submit such
disputes to China International Economic and Trade Arbitration Commission. The
Place of arbitration is Beijing. The arbitration award shall be final and
binding on both parties.
Article 9 Confidentiality
9.1 The parties hereto agree to cause its employees or representatives who
has access to and e knowledge of the terms and conditions of this Agreement to
keep strict confidentiality and not to disclose any of these terms and
conditions to any third party without the expressive requirements under law or
request from judicial authorities or governmental departments or the consent of
the other party, otherwise such party or personnel shall assume corresponding
legal liabilities.
9.2 The obligations of confidentiality under Section 1 of this Article
shall survive after the termination of this Agreement.
Article 10 Severability
10.1 Any provision of this Agreement that is invalid or unenforceable due
to the laws and regulations shall be ineffective without affecting in any way
the remaining provisions hereof.
10.2. In the event of the foregoing paragraph, the parties hereto shall
prepare supplemental agreement as soon as possible to replace the invalid
provision through friendly consultation.
Article 11 Non-waiver of Rights
11.1 Any failure or delay by any party in exercising its rights under this
Agreement shall not constitute a waiver of such right.
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11.2 Any failure of any party to demand the other party to perform its
obligations under this Agreement shall not be deemed as a waiver of its right to
demand the other party to perform such obligations later.
11.3 If a party excuses the non-performance by other party of certain
provisions under this Agreement, such excuse shall not be deemed to excuse any
future non-performance by the other party of the same provision.
Article 12 Non-transferability
Unless otherwise specified under this Agreement, no party can assign or
delegate any of the rights or obligations under this Agreement to any third
party nor can it provide any guarantee to such third party or carry out other
similar activities without the prior written from the other party.
Article 13 Miscellaneous
13.1 Any and all taxes arising from execution and performance of this
Agreement and during the course of the entrusted management and operation shall
be borne by the Parties respectively pursuant to the provisions of laws and
regulations.
13.2 Any amendment entered into by the parties hereto after the
effectiveness of this Agreement shall be an integral part of this Agreement and
have the same legal effect as part of this Agreement. In case of any
discrepancy between the amendment and this Agreement, the amendment shall
prevail. In case of several amendments, the amendment with the latest date
shall prevail.
13.3 This Agreement is executed by Chinese and English in duplicate, and
in case of any conflict the Chinese version shall prevail. Each of the original
Chinese and English versions of this Agreement shall be executed in 6 copies.
Each party shall hold two original of each version, and the rest shall be used
for governmental registration or other necessary approval purposes.
13.4 In witness hereof, the Agreement is duly executed by the parties
hereto on the date first written above.
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(Page of signature, no text)
Party A:
Dalian Fushi Enterprise Group Co., Ltd. (official seal)
Authorized representative:
(signature)
Yang Yue(signature)
Yang Xishan(signature)
Xu Chunyan(signature)
Dalian Fushi Bimetallic Manufacturing Co., Ltd. (official seal)
Authorized representative:
(signature)
Party B:
Dalian Diversified Product Inspections Bimetallic Cable Co., Ltd., (official
seal)
Authorized representative:
(signature)
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