Transfer Agreement of The Operator-based Comprehensive Services Agreement
Exhibit 4.32
(English Translation)
Transfer Agreement of
The Operator-based Comprehensive
Services Agreement
Between
China United Telecommunications Corporation Limited
And
China Unicom Corporation Limited
Unicom New World Telecommunications Corporation Limited
March 24, 2005
This Agreement was signed in Beijing, People’s Republic of China (“China”), on March 24, 2005, by the representatives of the following parties:
(1) The Transferor:
China United Telecommunications Corporation
Limited ( “A Share Company”)
Location: F40th, Jinmao Xxxxxxxx, Xx.00 XxxXx Xxxxxx, Xxxxxxxx
Legal Representative: Xxxxx Xxxxxxxx
(2) The Transferee:
China Unicom Corporation Limited (“CUCL”)
Location: F12 of No. 1 Building, Xxxxxxxxx Center, Xx.00, XxxxXxxXxx Xxx
Xxxxxx, Xxxxxxx
Legal Representative: Xxxxx Xxxxxxxx
Unicom New World Telecommunications
Corporation Limited (“Unicom New World”)
Location: Xxxx 0000, F10th of Xx. 0 Xxxxxxxx, Xx. 00, XxxxXxxXxx Xxx Xxxxxx,
XxxxXxxxx District, Beijing
Legal Representative: Xxxxx Xxxxxxxx
In this Agreement, CUCL and Unicom New World are separately or collectively referred to as the Transferee.
Whereas,
(1) CUCL is a foreign invested enterprise established and survived in compliance with the Chinese law, with 100% of its shares being held by China Unicom Limited (“Red-chip Company”). A Share Company is a limited holding company established and survived in compliance with the Chinese law, listed in Shanghai Stock Exchange (SSE) on October 9, 2002, with 69.3224% of its shares being held by China United Telecommunications Corporation (“Unicom Group”);
1
(2) On August 12, 2002, Unicom Group and A Share Company signed a memorandum of understanding on the transactions to be conducted after the listing of the shares of A Share Company (“Connected Transactions MoU”) between Unicom Group or its subsidiaries (excluding A Share Company and the subsidiaries held by A Share Company) and Red-chip Company indirectly held by A Share Company and its subsidiaries. According to the understanding reached in the Connected Transactions MoU, in the event that the transactions to be conducted between Red-chip Company itself or its subsidiaries and Unicom Group or any of its subsidiaries (excluding A Share Company and the subsidiaries held by A Share Company) require approval of the minority shareholders of A Share Company under the Rules Governing the Listing of Shares on Shanghai Stock Exchange (“Rules of SSE”) applicable from time to time, which are deemed at the same time as connected transactions that require approval of the minority shareholders of Red-chip Company under the Rules Governing the Listing of Securities on the Stock Exchange of Hong Kong Limited (“Rules of SEHK”) applicable from time to time, the above connected transactions shall be conducted in a 2-step approach: (1) Unicom Group or any of its subsidiaries enters into an agreement on the intended transaction with A Share Company or China Unicom (BVI) Limited (“Unicom BVI”), identifying the rights and obligations of the 2 parties involved in the transaction under the agreement (including, but not limited to, approval of Unicom Group of the transfer of the rights and obligations of A Share Company or Unicom BVI under the agreement to Red-chip Company or any of its subsidiaries); (2) A Share Company or Unicom BVI transfers its rights and obligations under the above mentioned agreement to Red-chip Company or any of its subsidiaries;
2
(3) Pursuant to the arrangements made in the above mentioned Connected Transactions MoU, Unicom Group, Unicom New Guoxin Telecommunications Corporation Limited (“Unicom New Guoxin”) and A Share Company singed the Operator-based Comprehensive Services agreement (“Old Operator Services Agreement”). On the same day, A Share Company signed the Agreement on Transfer of the old Operator Services Agreement with CUCL, Unicom New World Telecommunications Corporation Limited (“Unicom New World”) and Unicom New Century Telecommunications Corporation Limited (“Unicom New Century”) to transfer all its rights and obligations under the old Operator Services Agreement to Unicom New Century, Unicom New World and CUCL. Under such arrangement, Unicom Group and Guoxin offer Agency Services, Cellular subscriber value-added services and 10010/10011 Customer service to CUCL, Unicom New Century and Unicom New World;
(4) CUCL assimilated and merged with Unicom New Century on July 30, 2004, and the rights and obligations of Unicom New World under the old Operator Services Agreement have been inherited by CUCL. The Ministry of Commence has approved, pursuant to MOC’S Approval of the Merging between China Unicom Corporation Limited and Unicom New World Telecommunications Co. Ltd.(MOC [2005]No.258), of the merging between CUCL and Unicom New World. At present, CUCL is going through the rest of the legal procedures necessary for its merging with Unicom New World, upon completion of which Red-chip Company would have CUCL as its sole operating entity in China;
(5) Unicom New Guoxin is a limited corporating company established and survived in compliance with the established Chinese law. Unicom New Guoxin and A Share Company signed the Operator-based Comprehensive Services Agreement (“Agreement”) on March 24, 2005.
3
Considering of the implementation and amendment of the old Comprehensive Operator Service Agreement, with common studies and consultations, the Parties to this Agreement, in the principle of equality and mutual benefit, have agreed as follows:
1. If the conditions of entry into force described in Article 6 of this Agreement were met, the Transferor agrees to transfer all its rights and obligations under the Agreement and its attachments to the Transferee. The Transferee hereupon agrees to acquire the rights and obligations of the Transferor under the Agreement.
2. Once the Transferor transferred its rights and obligations under the Agreement to the Transferee, the Transferee would immediately succeed to all the rights and obligations of the Transferor under the Agreement. And the Transferor should terminate all the relevant rights and obligations succeeded by the Transferee under the Agreement.
3. The Transferor acknowledges that, in accordance with Article 6 of the Agreement, Unicom New Guoxin have irrepealably agreed that the Transferor may transfer its rights and obligations under the Agreement to the Transferee, and no further consent from the Unicom New Guoxin for such transfer is required.
4. The Parties to this Agreement should ensure that they have the rights, power and capability to sign and implement this Agreement. This Agreement shall constitute the lawful, effective and binding obligations of the Parties immediately upon its signing.
5. The Transferee agrees to undertake the rights and obligations in the past and future under the Agreement in compliance with the terms and conditions defined in the Agreement in its period of validity.
4
6. Come into Effect
This Agreement comes into effect together with the Agreement, with the following conditions being satisfied.
6.1 The shareholders’ meeting of Red-chip Company approves in accordance with its applicable laws, regulations and listing rules, the transfer of the Transferor’s rights and obligations under the Agreement to the Transferee;
6.2 The shareholders’ meeting of the Transferor approves in accordance with its applicable laws, regulations, and listing rules, the signing and implementation of the Agreement.
7. Further Arrangement
The Ministry of Commerce has approved the merger of Unicom New World by CUCL, and the relevant legal procedures are going to be completed. Therefore the Parties to this Agreement now agree and acknowledge that, after the completion of the legal procedures to merge Unicom New World by CUCL, all the rights and obligations of Unicom New World under this Agreement will be succeeded by CUCL. And CUCL may succeed the rights and obligations of Unicom New World under this Agreement without any other approval or consent from A Share Company.
5
8. Force Majeure
Any party who fails to carry out the relevant obligations under this Agreement in accordance with the agreed conditions due to any events of Force Majeure which could not be predicted, and the occurrence or results of which could not be avoided or overcome, the party should inform other parties of its occurrence as soon as possible and thereafter provide detailed information and a valid document for evidence explaining the reason of its inability to execute or delay the execution of all or part of the obligations under this Agreement and its attachments within 15 days. The Parties shall, through consultations, decide whether to suspend, partially exempt or delay the execution of such obligations according to the effects of the events of Force Majeure on the performance of the obligation.
9. Confidentiality
Unless otherwise defined or required by law or the relevant regulatory authority, or for the purpose of information disclosure by the Transferor to SEC, or by Red-chip Company to Stock Exchange of Hong Kong Limited (SEHK), either party shall not provide or disclose any data or information related to the business of other parties to any company, enterprise, organization or personnel without the written permission of the relevant party.
10. No waiver
Unless otherwise stipulated by law, the failure or delay of execution of the rights, power or privileges under this Agreement by any party shall not be construed as a waiver of such rights, power or privileges. And the partial execution of such rights, power and privileges shall not obstruct the future execution of such rights, power and privileges.
6
11. Notice
Any notice related to this Agreement shall be made in writing, and delivered in person by one party to other parties, or sent by facsimile or by mail. Such notices shall be deemed delivered upon receipt when delivered in person; or upon confirmation of delivery displayed in the fax machine of the addresser if transmitted by facsimile; or within three working days (automatically extended when falls on legal holidays) after being delivered by mail. Any notice shall come into effect upon delivery.
The communication addresses of the Parties to
this Agreement are as follows:
|
China United |
|
China
Unicom |
|
Unicom
New World |
|
|
|
|
|
|
|
Addressee: Xxxx Xxxxx |
|
Addressee: Xxxx Xxxxxxx |
|
Addressee: Xxxx Xxxxxxx |
|
|
|
|
|
|
|
Address: F40th, Jinmao |
|
Address: Room 1029, |
|
Address: Room 1029, |
|
|
|
|
|
|
|
Postal Code: 200121 |
|
Postal Code: 100032 |
|
Postal Code: 100032 |
12. Applicable Law
This Agreement shall be governed by the laws of the People’s Republic of China, and be construed and executed in accordance with the laws of China.
7
13. Settlement of Disputes
All disputes arising from the effectiveness, interpretation or performance of this Agreement shall be settled through friendly negotiation. Should no settlement be reached through negotiation within 30 days after the arising of the disputes, any party shall be entitled to proceed to the People’s Court with proper jurisdiction.
14. Miscellaneous
14.1 Each party may make revisions or supplements to this Agreement under consultations with other Parties. All the revisions and supplements shall be effective when signed and sealed by the legal representatives of the Parties or their authorized representatives.
14.2 This Agreement is severable. If any provisions of this Agreement is held to be against the law or unenforceable, the effectiveness and implementation of the remaining provisions shall not be affected.
14.3 This Agreement was done in six original copies, two for each Party, being equally authenticated.
8
(No text on this page)
China United Telecommunications Corporation Ltd. (Stamp)
|
Legal representative or his authorized representative: |
/s/ Sun Qian |
|
China Unicom Corporation Limited (Stamp)
|
Legal representative or his authorized representative: |
/s/ Xxxx Xxxx |
|
Unicom New World Telecommunications Corporation Limited (Stamp)
|
Legal representative or his authorized representative: |
/s/ Xxxx Xxxx |
|
9
