Exhibit 10.1
MANAGEMENT CONSULTING SERVICES
AGREEMENT
This Management Consulting Services
Agreement (the “ Agreement ”) is entered into on
this 1 st day of August, 2009 by and among Suzhou
EZTripMart Business Services Co., Ltd., a wholly foreign-owned
enterprise established in the People’s Republic of China
(“ China ” or “ PRC ”) with
its registered office at Suite 201, 1 Venture House, Modern
Industrial Square Phase II, 333 Xing Pu Road, Suzhou Industrial
Park, Suzhou, China (“ EZT ”); and Shanghai
Junli Air Service Co., Ltd., a limited liability company
incorporated in China with its registered office at Suite 503,
394-8 Yan’an Road West, Shanghai, China (“ Junli
”). (Each of EZT and Junli is herein referred to as a “
Party ” and collective as the “ Parties
”).
WHEREAS:
1.
EZT engages, among other things, in
the provision of management consulting services as set forth in
more detail in its business license.
2.
Junli engages, among other things,
in the business of international and domestic airline ticket sales
and domestic cargo agency as set forth in more detail in its
business license (the “ Business ”), and holds
tier-one and tier-two air transport sales agency licenses issued by
China Air Transport Association.
3.
Junli wishes to engage EZT
exclusively to provide, and EZT wishes to be so engaged by Junli to
provide, certain management consulting and other related services
with respect to the Business in accordance with this
Agreement.
4.
In connection with this Agreement,
EZT has acquired from Junli at fair value substantially all of
Junli’s information technology assets utilized in the
Business.
NOW THEREFORE, in consideration of
the covenants and agreements contained herein, the Parties hereby
agree as follows:
1.
CERTAIN DEFINITIONS
In this Agreement:
“ Affiliate ”
means, with respect to any Person, any other Person that directly
or indirectly owns a Controlling interest in, or exercises Control
over, such Person, or in or over which such Person directly or
indirectly owns a Controlling interest or exercises Control, or
that is otherwise directly or indirectly under common ownership or
Control with such Person.
“ Agreement ” has
the meaning given to such term in the preamble.
“ Business ” has
the meaning given to such term in Recital 2.
“ Business Day ”
means any day when commercial banks are generally open for business
in Shanghai, China.
“ CIETAC ” has
the meaning given to such term in Section 10(b).
“ Confidential
Information ” has the meaning given to such term in
Section 9(b).
“ Control ” means
having the power to direct or appoint the management of a company
and “Controlled” or “Controlling” shall
have correlative meanings.
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“ Dispute ” has
the meaning given to such term in Section 10.
“ Dispute Notice
” has the meaning given to such term in Section
10(a).
“ EZT ” has the
meaning given to such term in the preamble.
“ Force Majeure ”
means any event that is beyond the Party’s reasonable control
and cannot be prevented with reasonable care, including but not
limited to acts of governments, acts of nature, fire, explosion,
typhoon, flood, earthquake, lightning, war, epidemic, strikes or
riot. However, any shortage of credit, capital or finance shall not
be regarded as an event of Force Majeure.
“ Group ” has the
meaning given to such term in Section 9(b).
“ Governmental
Authority ” means any domestic or foreign court or other
governmental or regulatory authority, agency or other body with
jurisdiction over any of the assets or properties of any of the
Parties.
“ Intellectual Property
” has the meaning given to such term in Section
9(a).
“ Junli ” has the
meaning given to such term in the preamble.
“ Party ” or
“ Parties ” has the meaning given to such term
in the preamble.
“ Person ” means
an individual, corporation, joint venture, partnership, enterprise,
trust, unincorporated association, limited liability company,
government or any department or agency thereof, or any other
entity.
“ PRC ” or
“ China ” has the meaning given to such term in
the preamble.
“ Representative
” has the meaning given to such term in Section
9(b).
“ RMB ” means
Renminbi, the lawful currency of China.
“ Services ” has
the meaning given to such term in Section 2(a).
“ Services Fee ”
has the meaning given to such term in Section 3(a).
“ US ” means the
United States of America.
2.
SERVICES
(a)
Exclusive Services
Provider .
During the term of this Agreement, Junli hereby appoints EZT,
and EZT hereby accepts Junli’s appointment, as the exclusive
provider (except as to any Affiliate of EZT) of certain management
consulting and other services required by Junli in the conduct of
its Business, which services are more fully described in Section
2(b) below (the “ Services ”), pursuant and
subject to the terms and conditions of this Agreement. During the
term hereof, Junli shall not seek or accept identical or similar
services from other providers (except any Affiliate of EZT) without
the prior written approval from EZT. For the avoidance of doubt,
however, during the term hereof, EZT shall have the right to
provide identical or similar services to third parties, and Junli
may seek or accept identical or similar services from any Affiliate
of EZT.
(b)
Scope of
Services . To the extent permitted by
the applicable PRC laws and regulations, the Services provided
under this Agreement shall include, without limitation:
(i)
Management consultancy services in
respect of the Business, including, without limitation, advice and
assistance relating to e-commerce applications;
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(ii)
Advice and assistance relating to
the development of technology and provision of consultancy
services;
(iii)
Advice in relation to the staffing
in respect of the operation of the Business, including advice on
the recruitment, employment and selection of management personnel,
administrative personnel and staff of Junli in respect of the
Business;
(iv)
Training of management, staff,
technical and administrative personnel Junli in respect of the
Business;
(v)
Assistance in the collection and
analysis of technical and business information about the Business
with a view to improving Junli’s operation performance and
the quality of Services provided hereunder;
(vi)
Sharing of resources for, and
assistance in the source for and manage existing and potential
business partners for marketing of Junli’s products and
services; and
(vii)
Such other advice and assistance as
may be agreed upon by the Parties.
(c)
Advances . From time to time and at the
request of Junli, EZT may in its sole discretion, in such a manner
as permitted by applicable laws and regulations advance to Junli
amounts for the purpose of providing working capital to Junli,
funding for Junli’s acquisition of operating assets, or for
any other purposes as may be acceptable to EZT, in which case EZT
may request Junli to provide security in form and substance
satisfactory to EZT.
(d)
License . EZT hereby grants to Junli a
royalty-free, non-exclusive, non-transferable, revocable, limited
license to use in China the names “Junli” and
“
军利 ” (and related designs and
logos) in the Business.
3.
FEES
(a)
Fees . In consideration of the
Services provided by EZT hereunder, Junli shall pay to EZT during
the term of this Agreement (i) a fee (the “ Services
Fee ”) at such monthly rate as the Parties shall from
time to time agree, payable on a semi-monthly basis, and (ii) such
other fees as EZT and Junli shall from time to time agree on an
ad hoc basis. The Parties agree to periodically review the
rate of the Services Fee with a view to adjust the Services Fee
based on the historic, present and prospective Business volume as
appropriate.
(b)
Payment . Any payment required to be
made under this Section 3 shall be paid in RMB by wire transfer to
the account as may be timely specified in writing from time to time
by EZT. EZT shall timely provide Junli with proper tax invoice for
the payment hereunder.
(c)
No Set-off and Deduction
. Notwithstanding
anything to the contrary herein, Junli shall not set off any amount
it may claim is owed to it by EZT against any Services Fee payable
by Junli to EZT unless Junli first obtains EZT’s written
consent. All payments to be made by Junli hereunder shall be made
free and clear of and without deduction for or on account of any
tax, unless Junli is required by applicable PRC law to deduct or
withhold applicable tax from such payments, in which case, Junli
shall promptly provide EZT with official receipt of payment of such
tax.
(d)
Late Payment . Should Junli fail to pay to
EZT all or any part of the Services Fee due in RMB under this
Section 3 within the time limits stipulated herein, Junli shall pay
to EZT interest in RMB in arrears on the amount overdue based on
the 3-month RMB lending rate as of the relevant due date announced
by the People’s Bank of China.
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4.
REPRESENTATIONS AND WARRANTIES;
MUTUAL COVENANTS
(a)
Representations and Warranties of
the Parties . Each Party hereby
represents, warrants and undertakes to the other Party
that:
(i)
It is a limited liability
company duly organized and validly existing under PRC laws and is
qualified to do business and is in good standing in all
jurisdictions in which the nature of the business currently
conducted or proposed to be conducted by it or its ownership of
property makes such qualification necessary.
(ii)
It has all requisite corporate and
other power and authority to execute, deliver, and perform all of
its obligations under, this Agreement and to consummate the
transactions contemplated by this Agreement.
(iii)
It has all licenses, certificates,
permits, authorizations, concessions, approvals, franchises and
other rights from, and has made all declarations and filings with,
all applicable Governmental Authorities necessary to engage in the
business conducted by it.
(iv)
This Agreement has been duly and
validly authorized, executed and delivered by it and constitutes
its valid and binding obligations enforceable against it in
accordance with its terms, except as such enforceability may be
limited by bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and other laws of general applicability
relating to or affecting creditors’ rights and by general
equity principles (regardless of whether considered in a proceeding
in equity or at law), including (1) the possible unavailability of
specific performance, injunctive relief or any other equitable
remedy; and (2) concepts of materiality, reasonableness, good
faith and fair dealing.
(b)
Certain Mutual Covenants
. The Parties
covenant and agree with each other as follows:
(i)
To observe all relevant legal
restrictions, including the preservation of the confidentiality of
non-public information pursuant to Section 9 hereof.
(ii)
To execute such documents and other
papers and perform such further acts as may be reasonably required
to carry out the provisions hereof and the transactions
contemplated by this Agreement.
(iii)
To be responsible for its own costs
(including direct travel expenses and legal fees) relating to the
negotiation, preparation, execution and performance by it of this
Agreement.
(iv)
To do or cause to be done, all
things necessary or appropriate to preserve and keep in full force
and effect its existence and its material rights, authorizations,
concessions, approvals, franchises and licenses.
5.
AFFIRMATIVE COVENANTS OF
JUNLI
Junli hereby covenants and agrees
that, during the term of this Agreement, it will perform and
observe the following covenants and provisions:
(a)
Notice of Litigation
. Provide to EZT
promptly, and in any event within 1 Business Day after an officer
of Junli obtains knowledge thereof, notice of (i) any litigation,
arbitration or mediation or gove
