EXHIBIT 10.9
AMENDED AND RESTATED OPTION AGREEMENT
THIS AMENDED AND RESTATED OPTION AGREEMENT ("Agreement") is made on this 10th
day of May, 2004 in Beijing, People's Republic of China ("PRC")
among
(1) KONGZHONG INFORMATION TECHNOLOGIES (BEIJING) CO., LTD. [CHINESE
CHARACTERS], with its registered address at Xxxx 0000, XXX Xxxxxxxx, Xx.0
Xxxxx Xxxxxx of Xxxxx Xxxx Cun, Hai Xxxx District, Beijing, PRC ("KongZhong
Beijing")
(2) ZHOU, YUNFAN, a PRC citizen whose PRC identification number is
110102197411102374, and whose residential address is 00X, Xx. 0 Xxxxxxxx,
Xxxxx Xxxxx Xxxxx Xxxxxx, Xx Xxxx, Beijing, PRC("Zhou")
(3) 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")
(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 , PRC("Xxxxx")
and
(5) Cha, Yang, a PRC citizen whose PRC identification number is
110108196401019036, and whose residential address is 00X, Xx. 0 Xxxxxxxx,
Xxxxx Xxxxx Xxxxx Xxxxxx, Xx Xxxx, Beijing , PRC ("Cha")
(Each of Zhou, Yang, Xxxxx and Cha is hereinafter referred to as a "Grantor" and
collectively the "Grantors")
WHEREAS
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A. KongZhong Beijing is a wholly foreign-owned enterprise, duly established
and registered in Beijing under the laws of the PRC.
X. Xxxx, Yang, Xxxxx and Cha 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, Zhou holds 10%, Yang holds 42%,
Xxxxx holds 3%,
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and Cha holds 45%.
C. 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 Zhou, Yang, Xxxxx and Cha hereby grants to KongZhong Beijing an
option (each and "Option" and collectively the "Options") to purchase their
respective Equity Interests at the purchase price of RMB twenty thousand
(20,000) 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
------------------
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.
2.1.2 For the avoidance of doubt, each of the holders 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.
2.1.3 The Grantors agree that KongZhong Beijing may designate in its sole
discretion
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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.
2.2 Transfer
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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 were a party to
this Agreement, and that such third party shall assume the rights and
obligations of KongZhong Beijing hereunder.
2.3 Notice Requirement
------------------
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:
2.3.1.1 The date of the effective closing of such purchase (a "Closing
Date");
2.3.1.2 the name of the person in which the Equity Interests shall be
registered;
2.3.1.3 the amount of Equity Interests to be purchased from such
Grantor;
2.3.1.4 the type of payment; and
2.3.1.5 a letter of authorization, where a third party has been
designated to exercise the Option.
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.
2.4 Closing
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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
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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:
3.2.1 The transfer by the Grantor of all or part of the Equity Interests to
KongZhong Beijing or its designated party; and
3.2.2 any other matters as KongZhong Beijing may reasonably request.
Each Resolution is to be held in KongZhong Beijing.
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 powder and authority to enter into, and perform
under, this Agreement;
4.1.2 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;
4.1.3 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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4.14 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;
4.1.5 it has not been declared bankrupt by a count of competent
jurisdiction;
4.1.6 its equity shareholding in Beijing AirInBox is free and clear from
all liens, encumbrances and third party rights;
4.1.7 it will not transfer, donate, pledge, or otherwise dispose of its
equity shareholdings in any way unless otherwise agreed by KongZhong
Beijing;
4.1.8 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
4.1.9 Zhou 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 Cha 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.
4.2 Covenants and Undertaking
-------------------------
Each of Grantors covenants and undertakes to COTAB that:
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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4.2.2 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.
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
therefrom.
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 arbitral award
shall be final and binding upon the Parties.
ARTICLE 8: CONFIDENTIALITY
8.1 Confidential Information
------------------------
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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
----------------
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. This Agreement shall only be amended by a written instrument
signed by all the Parties.
9.2.2 The Annexes attached hereto shall constitute an integral part of this
Agreement and shall have the same legal effect as this Agreement.
9.3 Notices
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9.3.1 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:
KongZhong Beijing : KongZhong Information Technologies
(Beijing) Co., Ltd.
Address : Xxxx 000, Tower A, Xx. 0 Xxxxxx Xxxxx
Xxxxxx, Xxxxxxx Xxxxxxxx, Xxxxxxx,
Xxxxx
Zip code : 100045
Telephone : (00 00) 00000000
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Facsimile : (00 00) 00000000
Contact : Chief Executive Officer
Person
Zhou, Yunfan : Zhou, Yunfan
Address : 00X, Xx. 0 Xxxxxxxx,
Xxxxx Xxxxx Xxxxx Xxxxxx,Xx Xxxx,
Xxxxxxx, Xxxxx
Zip code : 100088
Telephone : (00 00) 00000000
Facsimile : (00 00) 00000000
Xxxx, Xxxxxxx : Xxxx, Xxxxxxx
Address : 00X, Xx. 0 Xxxxxxxx, Xxxxx Xxxxx Xxxxx
Xxxxxx, Xx Xxxx, Xxxxxxx, Xxxxx
Zip code : 100088
Telephone : (00 00) 00000000
Facsimile : (00 00) 00000000
Xxxxx, Xxxx : Xxxxx, Xxxx
Address : 00X, Xx.0 Xxxxxxxx, Xxxxx Xxxxx Xxxxx
Xxxxxx, Xx Xxxx, Beijing, China
Zip Code : 100088
Telephone : (00 00) 00000000
Facsimile : (00 00) 00000000
Cha, Yang : Cha, Yang
Address : 00X, Xx.0 Xxxxxxxx, Xxxxx Xxxxx Xxxxx
Xxxxxx, Xx Xxxx, Beijing, China
Zip Code : 100088
Telephone : (00 00) 00000000
Facsimile : (00 00) 00000000
9.3.2 Notices and correspondences shall be deemed to have been effectively
delivered:
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;
9.3.2.2 on the date that the receiving Party signs for the document,
if delivered in person (including express mail);
9.3.2.3 on the fifteenth (15th ) day after the date shown on the
registered mail
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receipt, if sent by registered mail;
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.
9.4 Binding Effect
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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
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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
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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
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Where appropriate, the plural includes the singular and vice versa.
9.9 Unspecified Matter
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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.
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KONGZHONG INFORMATION TECHNOLOGIES (BEIJING) CO., LTD.
By: /s/ Xxxx Xxxx
-------------------------------
Signature:
Seal:
ZHOU, YUNFAN
Signature: /s/ Xxxxxx Xxxx
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XXXX, XXXXXXX
Signature: /s/ Xxxxxxx Xxxx
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XXXXX, XXXX
Signature: /s/ Xxxx Xxxxx
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CHA, YANG
Signature: /s/ Yang Cha
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