AMENDED AND RESTATED OPTION AGREEMENT
Exhibit
4.15
THIS
AMENDED AND RESTATED OPTION AGREEMENT
(this
"Agreement") is made on this 16th
day of
October, 2006 in Beijing, People’s Republic of China (“PRC”)
among
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(1)
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Kongzhong
Information Technologies (Beijing) Co., Ltd. [Chinese Characters],
with
its registered address at 35 F, Tengda Plaza, No.168 Xiwai Street,
Haidian
District, Beijing, PRC ("Kongzhong Beijing")
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|
(2)
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Wang
Guijun, a PRC citizen whose PRC identification number is 110108197604075411,
and whose residential address is
Xx. 00, Xxxxxx Xxxxx Xxxxxx Xxx, Xxxx Xxxxxxxx,
Xxxxxxx, PRC ("Wang")
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(3)
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Xxxx,
Xxxxxxx, a PRC citizen whose PRC identification number is 410105490701051,
and whose residential address is 00X, Xx. 0 Xxxxxxxx, Xxxxx Xxxxx
Xxxxx
Xxxxxx, Xx Xxxx, Beijing , PRC
("Yang")
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|
(4)
|
Xxxxx,
Xxxx, a PRC citizen whose PRC identification number is 610104780219162
and
whose residential address is, 00X, Xx. 0 Xxxxxxxx, Xxxxx Xxxxx
Xxxxx
Xxxxxx, Xx Xxxx, Beijing , RC ("Xxxxx")
and
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|
(5)
|
Linguang
Wu, a PRC citizen whose PRC identification number is 340104197202233015
,
and whose residential address is Xx.
000-000, Xxxxx Xxxx Xx. 0, Xxxxxxx Xxxxxxxx, Xxxxx,
XXX ("Xx")
|
(Each
of
Wang, Yang, Xxxxx and Wu is hereinafter referred to as a "Grantor" and
collectively the "Grantors")
WHEREAS
|
A.
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Kongzhong
Beijing is a wholly foreign owned enterprise, duly established and
registered in Beijing under the laws of the
PRC.
|
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X.
|
Xxxx,
Xxxx, Xxxxx and Wu together hold 100% of the registered capital
of Beijing
AirInBox Information Technologies Co., Ltd. (“ Beijing AirInbox”), a
limited liability company, with a registered capital of RMB 10,000,000
(the "Equity Interests") and respectively, Wang holds 10%, Yang
holds 42%,
Xxxxx holds 3%, and Wu holds
45%.
|
|
C.
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Grantors
have agreed to grant exclusively to Kongzhong Beijing an option to
purchase the Equity Interests, subject to the terms and conditions
set
forth below.
|
THE
PARTIES THEREFORE AGREE AS FOLLOWS:
ARTICLE
1
GRANT
OF THE OPTION
| 1.1 |
Purchase
Option
|
Each
of
Wang, Yang, Xxxxx and Wu hereby grants to Kongzhong Beijing an option (each
as
"Option" and collectively the "Options") to purchase their respective Equity
Interests at the purchase price of RMB one hundred thousand (100,000) per one
(1) percent of the registered capital of Beijing AirInBox, each of such option
shall become vested as of the date of this Agreement.
| 1.2 |
Term
|
This
Agreement shall take effect as of the date of signing by the parties hereto
and
shall remain in full force and effect until the earlier of (1) the date on
which
all of the Equity Interests have been purchased by Kongzhong Beijing and (2)
the
tenth anniversary of the date hereof.
ARTICLE
2
EXERCISE
OF THE OPTION AND ITS CLOSING
| 2.1 |
Timing
of Exercise
|
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2.1.1
|
Each
of the Grantors agrees that Kongzhong Beijing in its sole discretion
may
at any time, and from time to time after the date hereof, exercise
the
Options, in whole or in part, to acquire all or any portion of their
respective Equity Interests, subject only to applicable laws of the
PRC,
including any restrictions on foreign
investment.
|
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2.1.2
|
For
the avoidance of doubt, each of the Grantors hereby agrees that Kongzhong
Beijing shall be entitled to exercise the Option for an unlimited
number
of times, until all of the Equity Interests have been acquired by
Kongzhong Beijing.
|
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2.1.3
|
The
Grantors agree that Kongzhong Beijing may designate in its sole discretion
any third party to exercise the Options on its behalf, in which case
Kongzhong Beijing shall provide written notice to the Grantor at
the time
the Option granted by such Grantor is
exercised.
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| 2.2 |
Transfer
|
The
Grantors agree that the Option shall be freely transferable, in whole or in
part, by Kongzhong Beijing to any third party, and that, upon such transfer,
the
Option may be exercised by such third party upon the terms and conditions set
forth herein, as if such third party was a party to this Agreement, and that
such third party shall assume the rights and obligations of Kongzhong Beijing
hereunder.
| 2.3 |
Notice
Requirement
|
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2.3.1
|
To
exercise an Option, Kongzhong Beijing shall send an written notice
to the
Grantor such Option is to be exercised by no later than ten (10)
days
prior to each Closing Date (as defined below), specifying therein:
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2.3.1.1
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The
date of the effective closing of such purchase (a "Closing
Date");
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2
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2.3.1.2
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The
name of the person in which the Equity Interests shall be
registered;
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2.3.1.3
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The
amount of Equity Interests to be purchased from such
Grantor;
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2.3.1.4
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The
type of payment; and
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2.3.1.5
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A
letter of authorization, where a third party has been designated
to
exercise the Option.
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2.3.2
|
For
the avoidance of doubt, it is expressly agreed among the parties
that
Kongzhong Beijing shall have the right to exercise the Options and
elect
to register the Equity Interests in the name of another person as
it may
designates from time to time.
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| 2.4 |
Closing
|
On
each
Closing Date, Kongzhong Beijing shall pay to the relevant Grantor the applicable
purchase price for the Equity Interests to be purchased on such Closing Date
as
provided in Article 1 above.
ARTICLE
3
COMPLETION
| 3.1 |
Assignment
Agreement
|
Concurrently
with the execution and delivery of this Agreement, and from time to time upon
the request of Kongzhong Beijing, each of the Grantors shall execute and deliver
one or more assignments, each in the form and content substantially satisfactory
to Kongzhong Beijing (each an "Assignment"), together with any other documents
necessary to give effect to the transfer to Kongzhong Beijing or its designated
party of all or any part of the Equity Interests upon an exercise of an Option
by KongZhong Beijing (the " Ancillary Documents"). Each Assignment and the
Ancillary Documents are to be held in Kongzhong Beijing.
| 3.2 |
Board
Resolution
|
Notwithstanding
Section 3.1 above, concurrently with the execution and delivery of this
Agreement, and from time to time upon the request of Kongzhong Beijing, each
of
Grantors shall execute and deliver one or more resolutions of the board of
directors and/or shareholders of Beijing AirInBox, approving the following:
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3.2.1
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The
transfer by the Grantor of all or part of the Equity Interests to
Kongzhong Beijing or its designated party;
and
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3.2.2
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Any
other matters as Kongzhong Beijing may reasonably request. Each Resolution
is to be held in Kongzhong Beijing.
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3
ARTICLE
4
REPRESENTATIONS
AND WARRANTIES
| 4.1 |
Representations
and Warranties
|
Each
of
Grantors severally represents and warrants to Kongzhong Beijing
that:
|
4.1.1
|
It
has the full power and authority to enter into, and perform under
this
Agreement;
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4.1.2
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Its
signing of this Agreement or fulfilling of any its obligations hereunder
does not violate any laws, regulations and contracts to which it
is bound,
or require any government authorization or
approval;
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4.1.3
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There
is no lawsuit, arbitration or other legal or government procedures
pending
which, based on its knowledge, shall materially and adversely affect
this
Agreement and the performance
thereof;
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4.1.4
|
It
has disclosed to Kongzhong Beijing all documents issued by any government
department that might cause a material adverse effect on the performance
of its obligations under this
Agreement;
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4.1.5
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It
has not been declared bankrupt by a count of competent
jurisdiction;
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4.1.6
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Its
equity shareholding in Beijing AirInBox is free and clear from all
liens,
encumbrances and third party
rights;
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4.1.7
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It
will not transfer, donate, pledge, or otherwise dispose of its equity
shareholdings in any way unless otherwise agreed by KongZhong
Beijing;
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4.1.8
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The
Option granted to Kongzhong Beijing shall be exclusive, and neither
Grantor shall grant the Option or any similar rights to a third party
by
any means whatsoever; and
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4.1.9
|
Wang
further represents and warrants to Kongzhong Beijing that he owns
10% of
the Equity Interests of Beijing AirInBox, Yang further represents
and
warrants to Kongzhong Beijing that he owns 42% of the Equity Interests
of
Beijing AirInBox, Xxxxx further represents and warrants to Kongzhong
Beijing that he owns 3% of the Equity Interests of Beijing AirInBox,
and
Wu further represents and warrants to Kongzhong Beijing that he owns
45%
of the Equity Interests of Beijing AirInBox. The Parties hereby agree
that
representations and warranties set forth in Sections 4.1.1, 4.1.2,
4.1.3,
4.1.4, 4.1.5,4.1.6, 4.1.7 and 4.1.8 shall be deemed to be repeated
as of
each Closing Date as if such representations and warrants were make
on and
as of such Closing Date.
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| 4.2 |
Covenants
and Undertaking
|
Each
of
the Grantors covenants and undertakes to Kongzhong Beijing that:
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4.2.1
|
He
will bear all costs arising from executing each Assignment, the Ancillary
Documents and any other relevant documents required therefore, and
will
complete all such formalities as are necessary to make Kongzhong
Beijing
or its designated party a full and proper shareholder of Beijing
AirInBox.
Such formalities include, but are not limited to, assisting Kongzhong
Beijing with the obtaining of necessary approvals of the equity transfer
from relevant government authorities (if any), the submission of
the
Assignment to the relevant administrative department of industry
and
commerce for the purpose of amending the Articles of Association,
changing
the list of shareholders and undertaking any other
changes.
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4
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4.2.2
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He
will, upon request by Kongzhong Beijing, establish a domestic entity
to
hold the interests in Beijing AirInBox as a Chinese party in case
Beijing
AirInBox is restructured to an FIE.
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ARTICLE
5
TAXES
Each
of
the Parties undertakes to pay its portion of any taxes and duties that might
arise from the execution and performance of this Agreement.
ARTICLE
6
BREACH
In
the
event of a breach by any Party of its respective representations, warranties,
covenants or obligations under this Agreement, the breaching Party shall
compensate the non−breaching Parties for any actual losses arising
therefore.
ARTICLE
7
GOVERNING
LAW AND DISPUTE SETTLEMENT
| 7.1 |
Governing
Law
|
The
execution, effectiveness, interpretation and performance of this Agreement
shall
be governed by the laws of the PRC.
| 7.2 |
Friendly
Consultation
|
If
a
dispute arises in connection with the interpretation or performance of this
Agreement, the Parties shall attempt to resolve such dispute through friendly
consultations between them or mediation by a neutral third party. If the dispute
cannot be resolved in the aforesaid manner within thirty (30) days after the
commencement of such discussions, either Party may submit the dispute to
arbitration.
| 7.3 |
Arbitration
|
Any
dispute arising in connection with this Agreement shall be submitted to the
China International Economic and Trade Arbitration Commission in Beijing for
arbitration in accordance with its rules. The arbitration award shall be final
and binding on all Parties to this Agreement.
5
ARTICLE
8
CONFIDENTIALITY
| 8.1 |
Confidential
Information
|
The
contents of this Agreement and the Annexes hereof shall be kept confidential.
No
Party shall disclose any such information to any third party (except for the
purpose described in Article 2.2 and by a prior written agreement among the
Parties). Each Party's obligations under this clause shall survive after the
termination of this Agreement.
| 8.2 |
Exceptions
|
If
a
disclosure is explicitly required by law, any courts, arbitration tribunals,
or
administrative authorities, such a disclosure by any Party shall not be deemed
a
violation of Article 8.1 above.
ARTICLE
9
MISCELLANEOUS
| 9.1 |
Extension
|
The
Parties may enter into discussions regarding any extension of this Agreement
one
(1) month prior to its expiration.
| 9.2 |
Entire
Agreement
|
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9.2.1
|
This
Agreement constitutes the entire agreement and understanding among
the
Parties in respect of the subject matter hereof and supersedes all
prior
discussions, negotiations and agreements among them, including the
Exclusive Share Option Agreement among Kongzhong Beijing, Yang Cha,
Xxxxxxx Xxxx, Xxxxxx Xxxx and Xxxx Xxxxx dated on May 10, 2004.
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9.2.2
|
This
Agreement shall only be amended by a written instrument signed by
all the
Parties.
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9.2.3
|
The
Annexes attached hereto shall constitute an integral part of this
Agreement and shall have the same legal effect as this
Agreement.
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| 9.3 |
Notices
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9.3.1
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Unless
otherwise designate by the other Party, any notices or other
correspondences among the Parties in connection with the Performance
of
this Agreement shall be delivered in person, by express mail, e−mail,
facsimile or registered mail to the following correspondence addresses
and
fax numbers:
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Kongzhong
Beijing: Kongzhong Beijing Information Technologies Co.,
Ltd.
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Address:
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35
F, Tengda Plaza, No.168 Xiwai Street, Haidian District,
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Beijing,
PRC
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Zip
code:
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100044
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Telephone:
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(00
00) 00000000
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Fax:
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(00
00) 00000000
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Contact
person:
|
Chief
Executive Officer
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6
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Wang,
Guijun: Wang, Guijun
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Address:
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35
F, Tengda Plaza, No.168 Xiwai Street, Haidian District,
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Beijing,
PRC
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Zip
code:
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100044
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Telephone:
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(00
00) 00000000
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Fax:
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(00
00) 00000000
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Xxxx,
Xxxxxxx: Xxxx, Xxxxxxx
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Address:
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35
F, Tengda Plaza, No.168 Xiwai Street, Haidian District,
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Beijing,
PRC
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Zip
code:
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100044
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Telephone:
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(00
00) 00000000
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Fax:
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(00
00) 00000000
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Xxxxx,
Xxxx: Xxxxx, Xxxx
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Address:
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35
F, Tengda Xxxxx, Xx.000 Xxxxx Xxxxxx, Xxxxxxx Xxxxxxxx,
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Xxxxxxx,
PRC
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Zip
Code:
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100044
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Telephone:
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(00
00) 00000000
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Fax:
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(00
00) 00000000
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Wu,
Linguang: Wu, Linguang
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Address:
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35
F, Tengda Plaza, No.168 Xiwai Street, Haidian District,
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Beijing,
PRC
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Zip
Code:
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100044
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Telephone:
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(00
00) 00000000
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Fax:
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(00
00) 00000000
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9.3.2
|
Notices
and correspondences shall be deemed to have been effectively
delivered:
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9.3.2.1
|
At
the exact tine displayed in the corresponding transmission record,
if
delivered by facsimile, unless such facsimile is sent after 5:00
pm or on
a non−business day in the place where it is received, in which case the
date of receipt shall be deemed to be the following business
day;
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9.3.2.2
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On
the date that the receiving Party signs for the document, if delivered
in
person (including express mail);
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9.3.2.3
|
On
the fifteenth (15th) day after the date shown on the registered mail
receipt, if sent by registered
mail;
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9.3.2.4
|
On
the successful printing by the sender of a transmission report evidencing
the delivery of the relevant e−mail, if sent by
e−mail.
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7
| 9.4 |
Binding
Effect
|
This
Agreement shall be binding on the Parties and their successors and
assigns.
| 9.5 |
Language
and Counterparts
|
This
Agreement shall be executed in five (5) originals in English, with one (1)
original for Kongzhong Beijing, one (1) original each for Grantors.
| 9.6 |
Days
and Business Day
|
A
reference to a day herein is to a calendar day. A reference to a business day
herein is to a day on which commercial banks are open for business in the
PRC.
| 9.7 |
Headings
|
The
headings contained herein are inserted for reference purposes only and shall
not
affect the meaning or interpretation of any part of this Agreement.
| 9.8 |
Singular
and Plural
|
Where
appropriate, the plural includes the singular and vice versa.
| 9.9 |
Unspecified
Matter
|
Any
matter not specified in this Agreement shall be handled through discussions
among the Parties and resolved in accordance with PRC law.
| 9.10 |
Survival
of Representations, Warranties, Covenants and
Obligations
|
The
respective representations, warranties, covenants and obligations of the
Parties, as set forth in this Agreement or made by or on behalf of them,
respectively, pursuant to this Agreement, shall remain in full force and effect,
regardless of any investigation (or any statement as to the results thereof)
made by or on behalf of any Party, and shall survive the delivery and payment
for the Equity Interests.
This
Agreement has been signed by the Parties or their duly authorized
representatives on the date first specified above.
8
(No
text
on this page)
KONGZHONG
INFORMATION TECHNOLOGIES (BEIJING) CO., LTD.
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By:
/s/
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Signature: Seal:
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WANG,
GUIJUN
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Signature:
/s/ Xxxxxx Xxxx
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XXXX,
XXXXXXX
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Signature:
/s/ Xxxxxxx Xxxx
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XXXXX,
XXXX
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Signature:
/s/ Xxxx Xxxxx
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WU,
LINGUANG
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Signature:
/s/ Linguang
Wu
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9
