EXHIBIT 4.47
COOPERATION CONTRACT
BETWEEN
SHANGHAI ZHONGBANG CULTURE MEDIA CO., LTD.
AND
LINKTONE CONSULTING LIMITED SHANGHAI
This Cooperation Contract (Contract) was signed by the Parties hereunder in
Shanghai on September 13, 2006 ("Signature Date")
PARTY A: SHANGHAI ZHONGBANG CULTURE MEDIA CO., LTD. (HEREINAFTER REFERRED TO AS
"SHANGHAI ZHONGBANG")
Address: ___________________________________
Legal representative: ______________________
PARTY B: LINKTONE CONSULTING LIMITED SHANGHAI (HEREINAFTER REFERRED TO AS
"LINKTONE")
Address: 0/X, 000 Xxxxxxx Xxxx Xxxx, Xxxxxxx Xxxxxxxx, Xxxxxxxx
Legal representative: Xxx Xx
Whereas
Shanghai Zhongbang is a limited liability company established and registered in
Shanghai Administration of Industry and Commerce, mainly dealing with cultural
transmission, SAT-TV channel operation, operation of film & TV production,
actors & actresses' brokerage and advertisement agency, etc.
Linktone is a limited liability company established and registered in Shanghai
Administration of Industry and Commerce. With its abundant experience in the
field of new media development, its main business covers providing wireless
value-added media for mobile phone users of Chinese mainland as well as charging
services for entertainment and communications.
On the basis of the principle of equality and mutual benefit, giving full play
to both parties and realizing resource integration and complementary advantage,
through friendly consultations, whereas both parties agrees to cooperate on
contribution capital to establish a new company and loan matters concerned, now
this presents witness that is hereby agreed between the parties hereto as
follows:
CHAPTER 1 DEFINITION
In the contract (including whereas article stated above), except where the
context requires
otherwise, the following words and expressions are defined as follows:
THE CONTRACT: means the Cooperation Contract signed on the Signature Date by
both parties, including attachment part.
SIGNATURE DATE: means the date stated in article 1 of the body part in the
contract
NEW COMPANY: a new company which both parties jointly contributes capitals to
establish, and the name of the company is undetermined (hereinafter referred to
as "new company")
YUAN: RMB YUAN.
CONFIDENTIAL INFORMATION: means any information which one party (receiver)
obtains from the other party (disclosure party) and should be maintained secrecy
by disclosure party, except that laws regulate otherwise. However, where any of
such information is of the written form, the word "confidential" shall be marked
on it; where it is of other forms, the disclosure party shall state that the
information is confidential when disclosing, and then have a recordation of the
information in written form or other visible forms and xxxx its confidentiality
on it, and he shall give the receiver a copy of the recordation within 30 days
after disclosure.
INTELLECTUAL PROPERTY RIGHTS: refers to all intangible property rights entrusted
by law or due to performance of laws, including but not limited to patent,
application for patent, creativity and invention (whether it can be granted as
patent or not), affiliated technology, commercial secret, trademark, commercial
name, marks, copyright and privacy information.
CHAPTER 2 BANK LOANS
Linktone agrees to provide a interest-free loan of RMB Y100,000 for Shanghai
Zhongbang, and Shanghai Zhongbang agrees to accept the interest-free loan of RMB
Y100,000 provided by Linktone. Shanghai Zhongbang shall invest the loan of RMB
Y100,000 into the new company as its registered capital contributed to the new
company by Shanghai Zhongbang.
Shanghai Zhongbang agrees and authorizes Linktone or a third party appointed by
Linktone to transfer the loan into a bank account appointed by Shanghai
Zhongbang before capital verification of the new company, and Shanghai Zhongbang
shall launch the loan into the registered capital account of the new company,
while Linktone shall be responsible for arrangement corresponding accountant
office for capital verification and issue relevant certificates.
Linktone or the third party appointed by Linktone shall enter into a Loan
Contract with Shanghai Zhongbang to state clearly the matters involving the loan
described above.
CHAPTER 3 ESTABLISHING A NEW COMPANY
3.1 jointly established new company
Shanghai Zhongbang and Linktone agree to jointly establish a new company with
the registered capital of RMB10 million under the contract. The name of the
company is undetermined.
3.2 subscription of capital
Linktone makes capital contribution in cash and subscribes 99% of registered
capital totaling 9.9 million Yuan; Shanghai Zhongbang makes capital contribution
with the loan regulated in chapter 2, and subscribes 1% of registered capital
totaling 100 thousand Yuan;
After the subscription of capital stated above is completed, the equity
structure of the new company is as follows:
Percentage in Contribution amount
the registered for the registered
shareholders capital capital
------------ -------------- -------------------
Linktone 99% 9.9 million Yuan
Shanghai Zhongbang 1% 100 thousand Yuan
3.3 business scope of the new company
The business scope of the new company is: internet and wireless value-added
services development for interactive TV programs; the development and operation
of new media services such as interactive TV & film supporting industry; provide
consultation services for TV & film related activities, etc. (specific business
scope shall be subject to the approval by the administration of industry and
commerce).
3.4 approval or registration procedure
The two parties herein shall start to deal with the matters involving the
establishment of the new company within 30 days thereafter the contract comes
into force. Where qualification verification of the new company is conducted by
the departments of administration (including but not limited to the State
Administration of Radio, Film and Television or its subordinate department) for
the establishment of the new company, or certificates or approval should be
obtained from these departments, Shanghai Zhongbang shall be responsible for
guarantee obtaining necessary qualification, certificate or approval for the new
company.
3.5 joint venture contract
Shanghai Zhongbang and Linktone also shall enter into Joint Venture Contract,
Articles of Association and related documents in accordance with the regulations
herein and other agreement between the two parties.
CHAPTER 4 COOPERATION CONDITIONS
4.1.1 cooperation conditions of Shanghai Zhongbang
Shanghai Zhongbang shall guarantee that the new company obtains exclusive
operation right of internet and wireless value-added services of programs in
Shandong TV Station and other major
events for Shanghai Zhongbang, with specific business scope including, but not
limited to online games, network audio-visual service, e-magazine as well as all
sorts of value-added services on web, development, operation right and
authorization of wireless and other telecom value-added services. The written
authorization shall be obtained before the establishment of the new company, and
it will be one of the conditions for the new company to be established, and be
used as an attachment to Joint Venture Contract signed by Shanghai Zhongbang and
Linktone.
4.1.2 Shanghai Zhongbang shall guarantee that during the term of operation of
the new company, the foresaid authorization remains effective and unchanged, and
it shall not be changed or terminated due to the change of share constitution,
personnel, and the scope of business in Shanghai Zhongbang, but where the
foresaid obligations fails to be performed due to the factors of force majeure,
such as war, natural disaster, no liability shall not be prosecuted according to
law.
4.1.3 Shanghai Zhongbang shall guarantee that the contents and resources
provided by them, such as videos, audios, texts and pictures, are legal and
lawful, and can be lawfully used in the foresaid businesses by the new company,
without violating any rights and interests of a third party. Where any third
party claims their rights, the new company shall notify Shanghai Zhongbang at
once, and Shanghai Zhongbang shall make an acknowledgement instantly to resolve
the problem and take any necessary measures, including undertaking corresponding
economic and legal liabilities, assuring that the new company shall not suffer
loss thereupon. Shanghai Zhongbang shall be liable where the new company suffers
loss thereupon. The new company shall have the right to appoint a qualified SP
company to carry out related wireless value-added services by utilizing the
foresaid contents and resources. Similarly, where the new company uses the
contents and resources of other parties rather than of Zhongbang, and actual
loss has been make due to Linktone, Shanghai Linktone shall be liable for that.
4.1.4 Within 30 days thereafter the establishment of the new company (the
business license is issued), Zhongbang shall make sure to sign an formal
authorization contract with the new company in order to confirm the foresaid
authorization Zhongbang provides for the new company.
4.2 Liability for breach the contract due to cooperation conditions of Shanghai
Zhongbang being unsatisfied
Shanghai Zhongbang shall guarantee that the foresaid development and operation
rights are lawful and effective and shall be authorized to the new company
completely within 30 days after the establishment of the new company, and the
authorization shall remain exclusive in China for the new company after its
establishment. Where at any time during ten years since the new company's
incorporation, not all the cooperation conditions can be provided in accordance
with the article herein due to Shanghai Zhongbang, Shanghai Zhongbang shall make
compensations to Linktone.
4.3 cooperation conditions of Linktone
4.3.1 Linktone shall carry out cooperation with the new company with its
controlled Shanghai Dawnstars or other qualified companies. Linktone shall
guarantee the qualification of the
company cooperating with the new company is legal, effective, and such company
is qualified as a national network service provider.
4.3.2 Linktone shall guarantee that the company cooperating with the new company
will be responsible for the normal use of the wireless data transmission
channel, technology test and technical maintenance.
4.3.3 Linktone shall guarantee the company cooperating with the new company will
be responsible for client service and secure the service quality.
4.4.4 Linktone shall guarantee that during the term of operation of the new
company, the cooperation conditions stated herein the article remain effective
and unchanged, and they shall not be changed or terminated due to the change of
share constitution, personnel, and the scope of business in Linktone.
4.4 Liability for breach the contract due to the cooperation conditions of
Linktone being unsatisfied
In the event that not all the cooperation conditions can be provided in
accordance with the article herein due to Linktone at any time during ten years
since the new company's incorporation, Linktone shall make compensations to
Shanghai Zhongbang.
CHAPTER 5 GRANT OF LICENSE, SHARE TRANSFER AND RETURN OF THE LOAN
5.1 After the establishment of the new company, the new company will enter into
an Authorization License Agreement with Shanghai Zhongbang. The new company will
buy the exclusive license of Shanghai Zhongbang stated in the article 4.1 herein
with RMB 5 million, and the term of the exclusive license shall be operation
term of the new company.
5.2 After the establishment of the new company, Shanghai Zhongbang will conclude
a Shares Transfer Agreement with Linktone. Shanghai Zhongbang will buy 49% of
shares of the new company held by Linktone with RMB4.9 million. After the shares
are transferred, the equity structure of the new company will be:
Percentage in Contribution amount
the registered for the registered
shareholders capital capital
------------ -------------- -------------------
Shanghai Zhongbang 50% 5 million Yuan
Linktone 50% 5 million Yuan
5.3 The Authorization License Agreement and the Shares Transfer Agreement will
be concluded at the same time. Upon execution of the two agreements, Shanghai
Zhongbang shall instruct the new company to launch the RMB 5 million obtained by
Zhongbang for the grant of license directly into the account appointed by
Linktone from the new company, and the grant of license, shares
transfer and return of the loan will be achieved at the same time. Among the 5
million Yuan, 4.9 million is used for buying the 49% of the shares of the new
company held by Linktone, and RMB 100,000 is used for the return of the loan
stated in the chapter herein the contract.
5.4 The new company shall undertake related taxes and fees arising from the
transactions involving in the article herein.
CHAPTER 6 BOARD OF DIRECTORS, SUPERVISOR AND MANAGEMENT REORGANIZATION
6.1 After the establishment of the new company, the number of the board of
directors will be 5, among whom 2 will be appointed by Shanghai Zhongbang, and 3
by Linktone. The first chairman of the board of the new company will be
appointed by Shanghai Zhongbang and the vice chairman by Linktone. Both shall
serve one year, and upon expiration of the one-year term, the appointment power
for the chairman and vice-chairman shall be rotated between Shanghai Zhongbang
and Linktone automatically; the general manager of the new company will be
appointed by Zhongbang and engaged by the board of directors; the responsible
person in charge of the financial affairs will be appointed by Linktone and
engaged by the board of directors and the general manager shall have the power
to dismiss him/her. The company shall have two supervisors, appointed by
Zhongbang and Linktone separately. The foresaid board of directors, supervisors
and management constitutions shall remain unchanged. The arrangement of foresaid
specific positions shall be decided upon by the two parties in the way of
resolution by shareholders at the first shareholders general meeting. The
members of the board shall serve a term of two years, the term of office of
general managers and the responsible persons in charge of the financial affairs
shall be two years and supervisors shall be three years, and all of them can
serve consecutively if reelected.
6.2 The foresaid management personnel such as members of the board, chairmen of
the board, supervisors, general managers as well as responsible persons in
charge of the financial affairs appointed by the two parities can be decided by
each party on their own, but shall not violate the compulsory regulations by
laws.
6.3 The foresaid board of directors and the management constitution shall be
provided for by the articles of association of the company and in accordance
with related regulations, registration or record-keeping procedures shall be
handled in the company registered institution.
6.4 Except that law otherwise regulates, the agenda of the shareholders' meeting
and the board meeting shall be provided for specifically by articles of
association of the new company.
CHAPTER 7 STATEMENT AND WARRANTY
7.1 Shanghai Zhongbang hereby makes statement and warranty as follows:
7.1.1 Shanghai Zhongbang is a limited liability company established legally in
accordance with Chinese laws and continues to exist effectively and shall have
the right to carry out its operation activities in current way;
7.1.2 Shanghai Zhongbang shall have the right to conclude and fulfill the
contract herein, and it neither has conflict with current business undertaken
under other cooperation contracts, nor will cause violation of the articles of
association of the existing company;
7.1.3 Shanghai Zhongbang will make legal and effective resolutions on the
affairs involving the participation in the establishment of the new company and
the loan in accordance with the articles of association of the existing company
or documents of such kind.
7.2 Linktone hereby makes statement and warranty as follows:
7.2.1 Linktone is a limited liability company established legally in accordance
with Chinese laws and continues to exist effectively and shall have the right to
carry out its operation activities in current way;
7.2.2 Linktone shall have the right to conclude and fulfill the contract herein,
and it neither has conflict with current business undertaken under other
cooperation contracts, nor will cause violation of the articles of association
of the existing company;
7.2.3 Linktone will make legal and effective resolutions on the affairs
involving the participation of this time in the establishment of the new company
in accordance with the articles of association of the existing company or
documents of such kind.
CHAPTER 8 CONFIDENTIALITY
8.1 The parities hereto undertake: shall not, in any way, orally or in writing,
disclose or divulge any information involving the contract and the parties
themselves to the third party; any action contradictory to the commitment shall
be regarded as breach the liability of confidentiality, and the breaching party
shall bear all liabilities caused thereof.
8.2 Where any information involving the contract and the parties themselves has
been transmitted through other channels and known to the public before the
execution of the contract, the information stated herein the article 8.1 shall
not be constituted.
8.3 Where either party hereto has to disclose the information stated herein the
article 8.1 due to the order from the government or judicial organizations that
have jurisdiction right over the party, the disclosure shall not be considered
as breach the liability of confidentiality, but it shall immediately give notice
to the other party.
8.4 The liability of confidentiality stipulated herein this chapter shall not be
released due to without fulfilling the contract, withdrawal from the contract,
breach of the contract by either party or termination of the contract for
fulfilling duties herein, on the contrary, either party hereto shall bear
liabilities of confidentiality until the information stated herein the article
8.1 has been known to the public.
CHAPTER 9 FORCE MAJEURE
9.1 Force majeure events refers to unforeseen and unpreventable objective
conditions beyond control, including but not limited to earthquake, typhoon,
flood, explosion, strike, war and terrorism, etc.
9.2 Where either party fails to implement part or the entire contract, it shall
immediately notify the other party of the situation in writing, and within 20
days after the occurrence of the force majeure, it shall provide effective
certificate issued by the competent authorities, proving it is the force majeure
events which are the direct reason that prevent the party from partly or
entirely performing the obligations under the contract.
9.3 Where either party hereto suffers force majeure events, the parties hereto
shall decide upon the resolution of performing the obligations under this
contract as soon as possible through negotiation, and shall at all times use all
reasonable endeavors to minimize the consequences caused by force majeure
events.
9.4 Within 6 months after the foresaid force majeure occur, where the parties
hereto still fail to find the resolution of fulfilling the contract despite
their endeavors, the new company shall terminate its operation and get into
liquidation process in accordance with law and the stipulation in the article
11.4 herein the contract shall be applicable for this.
CHAPTER 10 TERMINATION OF THE CONTRACT
10.1 Where the new company fails to complete registration with the company
registration authorities within 6 months after the applications for registration
of the new company including this contract as well as the Joint Venture Contract
and Articles of Association are submitted to the competent company registration
authorities, the contract will terminate automatically.
10.2 Where Shanghai Zhongbang fails to acquire relevant authorizations stated in
the article 4.1 herein before the establishment of the new company, the contract
shall terminate.
10.3 Where the parties hereto reach an agreement to terminate the contract after
negotiation before the establishment of the new company, the contract shall
terminate.
10.4 After automatic termination of the contract, all the rights and/or
obligations under the
contract shall terminate automatically, and the rights or obligations involved
that have been conducted or performed shall return to the original situation,
that is, Linktone will directly withdraw the funds in amount of RMB9.9 million
contributed to the new company under the contract, while as for the loan that
Shanghai Zhongbang borrows from Linktone, the new company shall return the loan
and launch it directly into the account of Linktone or a third party account
appointed by Linktone.
CHAPTER 11 TERMINATION AND DISSOLUTION OF THE NEW COMPANY
11.1 Where the statement and warranty made by Shanghai Zhongbang and/or Linktone
are significantly false or misleading, causing significant loss to the interests
of the new company, the new company shall stop operation and come into
liquidation process in accordance with laws.
11.2 The termination, liquidation and dissolution of the new company require
affirmative votes by all shareholders, except for the regulations in Article
11.2.1 and 11.2.2 of this article.
11.2.1 Where the cooperation conditions Linktone shall provide described in the
above Chapter 4 herein the contract fail to satisfy, causing loss to the
interests of the new company, Shanghai Zhongbang shall have the right to decide
unilaterally the new company shall come into liquidation process, and the
shareholders of the new company shall assure the shareholders' meeting and the
board meeting make corresponding shareholders' meeting resolutions and/or board
meeting resolutions according to the foresaid unilateral decision made by
Shanghai Zhongbang.
11.2.2 Where the cooperation conditions Shanghai Zhongbang shall provide
described in the above Chapter 4 herein the contract fail to satisfy, causing
loss to the interests of the new company, Linktone shall have the right to
decide unilaterally the new company shall come into liquidation process, and the
shareholders of the new company shall assure the shareholders' meeting and the
board meeting make corresponding shareholders' meeting resolutions and/or board
meeting resolutions according to the foresaid unilateral decision made by
Linktone
11.3 Where Linktone has not revoked its contributed capital during the course of
operation of the new company when liquidation of the new company is carried out,
Linktone shall have the priority to revoke its contributed capital from the
residual properties of the company. Should the residual properties exceed the
contributed capital, the parties hereto shall distribute them in proportion of
the shareholding; where Linktone has revoked its contributed capital during the
course of operation of the new company, the parties hereto shall distribute the
assets of the new company in proportion of the shareholding; where the new
company has operated for more than two years, the parties hereto shall
distribute the assets in proportion of equity.
CHAPTER 12 APPLICABLE LAW AND SETTLEMENT OF DISPUTES
12.1 This contract shall be governed by the relevant laws of the People's
Republic of China and
interpreted by Chinese laws.
12.2 Any disputes arising from the execution of, or in connection with the
contract shall be settled through friendly consultations between both parties.
In case no settlement can be reached through consultations, both parties agree
the disputes shall be submitted to the court where the new company is
registered. Where the new company is not established for whatever reason, the
disputes shall be submitted to the court where the accused is located.
CHAPTER 13 NOTICES
13.1 All the notices sent to the other for the purpose of fulfilling the
contract shall be delivered by courier on board, EMS, fax or registered mail in
writing to the following addresses:
Party A: Shanghai Zhongbang Culture & Media Co., Ltd.
Address: ________________________________
Tele: ___________________________________
Fax: ____________________________________
Contact person: _________________________
Party B: Shanghai Linktone Consultation Co., Ltd. (hereinafter referred to as
"Linktone")
Address: 0/X, Xxxx Xxx Xxxxxxxx, 000 Xxxxxxx Xxxx Xxxx, Xxxxxxxx
Tele: 000-00000000
Fax: 000-00000000
Contact person: Zenian Song
13.2 Where the notice is sent by courier on board, the time when the notice is
transferred shall be regarded as receipt; where it is sent by fax, the time when
the fax is sent out shall be considered as receipt; where it is in the way of
mail, 7 days after the mail is sent out shall be taken as receipt.
CHAPTER 14 MISCELLANEOUS
14.1 When the conditions of the new company are ripe and for the purpose of
starting IPO, after agreement by the two parties hereto, Shanghai Zhongbang
shall transfer 1% of the stock equity of the new company held by it at the price
of RMB 1 Yuan per share to Linktone or the third party appointed by Linktone,
and Linktone shall agree to acquire the 1% stock equity transferred by Shanghai
Zhongbang at the price of 1 Yuan per share. After the transfer, the stock equity
structure of the new company shall be changed into: Shanghai Zhongbang 49%,
Linktone 51%.
14.2 The contract as well as the rights, obligations or responsibilities under
the contract shall not be assigned or transferred without consent by both
parties hereto.
Unless with consent of both parties hereto and written documents are concluded,
the contract shall not be amended or supplemented, however, any effective
amendment or appendices are integral parts of this contract.
14.3 This contract shall come into force upon signature by authorized
representatives of the parties hereto.
14.4 This agreement shall be held in four copies of the same form. Each party
shall preserve two copies with equal legal effects. This contract shall come
into force and be biding to the parties hereto as from the date when the
authorized representatives sign and stamp the company chop on the contract
14.5 Other concrete details concerning the cooperation under the contract shall
be decided after further negotiations and conclude other relevant contracts.
No main text below.
Agreed and executed by:
Party A: Shanghai Zhongbang Culture Media Co., Ltd.
Authorized representative: [Company Chop]
Party B: Linktone Consulting Limited Shanghai.
Authorized representative: [Company Chop]
