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EXHIBIT 10.21
AGREEMENT ON THE CONFIRMATION OF THE TRANSFER OF PERSONNEL, FINANCES
AND ASSETS AND THE RELATED RIGHTS AND OBLIGATIONS
This Agreement on the Confirmation of the Transfer of Personnel,
Finances and Assets and the Related Rights and Obligations (the "Agreement") is
executed by the following two parties on August 30, 2000 in Shanghai:
1. SHANGHAI MOBILE COMMUNICATION COMPANY LIMITED, a limited liability
company duly established and existing under the laws of People's
Republic of China ("PRC"), with its legal address at 000, Xxxxxxx Xxxx
Xx, Xxxxxxxx, XXX ("Xxxxxxxx Mobile") ; and
2. SHANGHAI MOBILE COMMUNICATION COMPANY, a state-owned enterprise duly
established and existing under the laws of PRC, with its legal address
at 0000, Xxx'xx Xxxx Xx, Xxxxxxxx, XXX ("xxx Service Company"). The
Service Company is going through name changing procedures to change
its name into "Shanghai Communication Service Company".
WHEREAS:
1. Shanghai Mobile and the Service Company entered into the Capital
Contribution Agreement ( "Agreement One" ) with China Mobile Group on
August 30, 2000.
2. Shanghai Mobile and the Service Company entered into the Agreement
Regarding the Transfer of Personnel, Finances and Assets Not Directly
Related to Mobile Communications Services ( "Agreement Two" ) with
China Mobile Group on August 30, 2000.
In order to confirm the ownership of the interests, assets,
liabilities, personnel and businesses under Agreement One and Agreement Two,
the Parties have reached the following agreement:
1. Each Party hereby confirms to the other Party that all the Related
Interests and Assets, Related Liabilities, Related Personnel and
Related Services under Agreement One shall be owned or assumed by
Shanghai Mobile; accordingly, the Service Company enjoys no rights,
undertakes no liability and bears no expense with regard to the same
(unless otherwise agreed upon in this Agreement).
2. Each Party hereby confirms to the other Party that all the Properties,
Non-Mobile Assets, the Related Personnel, the Non-Mobile Long-term
Investments and the Non-Mobile Liabilities under Agreement Two shall be
owned or assumed by the Service Company; accordingly, Shanghai Mobile
enjoys no rights, undertakes no liability and bears no expense with
regard to the same.
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3. Each Party hereby confirms to the other Party that all the contracts
in relation to the Related Interests and Assets, the Related
Liabilities, the Related Personnel and the Related Services under
Agreement One shall be transferred to Shanghai Mobile. However, due to
the time limit and the enormous amount involved, the transfer of
certain contracts may have not been approved by the other
party/parties thereto (the "Non-Transferred Contracts"). For such
Non-Transferred Contracts, the Parties hereby agree and confirm as
follows:
(1) As of the Effective Date (as defined in Agreement One), the
rights and liabilities, as well as the gains and losses of
the Service Company generated from the Non-Transferred
Contracts shall be owned or assumed by Shanghai Mobile
(unless otherwise stipulated in this Agreement ),
notwithstanding the fact that such Non-Transferred Contracts
are still held by and performed in the name of the Service
Company. The Service Company agrees to act as the trustee of
Shanghai Mobile to receive or hold any interests generated
from the Non-Transferred Contracts (including but not limited
to certain goods and loans) on behalf of Shanghai Mobile, and
that such interests are owned by Shanghai Mobile. Upon
demand, the Service Company shall deliver such interests to
Shanghai Mobile;
(2) The Service Company shall exercise or perform the rights and
liabilities under the Non-Transferred Contracts strictly in
accordance with the instructions given by Shanghai Mobile
from time to time, and shall not amend any terms of the
Non-Transferred Contracts or terminate the same without
Shanghai Mobile's prior written consent thereto;
(3) The reasonable expenses incurred by the Service Company for
the purpose of performing the obligations under paragraph 3(1)
above shall be reimbursed by Shanghai Mobile, except expenses
incurred as a result of negligence or fault on the part of, or
other reasons caused by, the Service Company;
(4) If, as a result of the Service Company's negligence, fault or
other reasons caused by the Service Company in connection
with its holding or performing the Non-Transferred Contracts
in its name and on behalf of Shanghai Mobile under this
Agreement, Shanghai Mobile sustains any losses therefrom
(including but not limited to legal action expenses and
damages ), the Service Company shall sufficiently compensate
Shanghai Mobile for such losses in a timely manner; and
(5) If there arises such a need that the rights of Shanghai
Mobile under the Non-Transferred Contracts (including the
rights to initiate legal proceedings or arbitration, or to
take other necessary actions) be exercised by the Service
Company in its name, the Service Company shall assist
Shanghai Mobile by exercising such rights in the Service
Company's name.
4. The Agreement shall be governed by and interpreted in accordance with
the laws of PRC.
5. The Agreement shall be executed in Chinese.
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6. The Agreement shall come into effect upon the execution by the
authorized representative of the Parties.
SHANGHAI MOBILE COMMUNICATION COMPANY LIMITED
By: s/Xxxx Xxxxxx
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Authorized representative
SHANGHAI MOBILE COMMUNICATION COMPANY (SHANGHAI COMMUNICATION SERVICE COMPANY)
By: s/Cai Guibao
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Authorized representative
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