Exhibit 4.19
[English Translation]
AGREEMENT ON THE CONFIRMATION OF RIGHTS AND OBLIGATIONS
This Agreement on the Confirmation of Rights and Obligations (the
"Agreement") is entered into by and between the following two parties on May 15,
2002 in Shaanxi, the People's Republic of China (the "PRC"):
1. SHANNXI MOBILE COMMUNICATION COMPANY LIMITED, a limited liability
company duly established and in good standing under the laws of the
PRC, with its legal address at 5 Nan Er Xxxx Xxxx, Xi'an, Shaanxi
Province, the PRC ("Shaanxi Mobile"); and
2. SHAANXI COMMUNICATION SERVICE COMPANY, a state-owned enterprise duly
established and in good standing under the laws of the PRC, with its
legal address at 5 Nan Er Xxxx Xxxx, Xi'an, Shaanxi Province, the PRC
(the "Service Company").
WHEREAS:
1. Shaanxi Mobile and the Service Company entered into the Assets
Injection Agreement with China Mobile Communications Corporation
("CMCC") on May 15, 2002.
2. In accordance with the Asset Injection Agreement, CMCC will, in the
name of CMCC, inject the mobile communication business and related
assets in Shaanxi Province formerly operated and managed by the Service
Company into Shaanxi Mobile.
THEREFORE, in order to confirm the ownership of the interests, assets,
liabilities, personnel and services under the Asset Injection Agreement, the
parties have reached the following agreement:
ARTICLE ONE CONFIRMATION OF RIGHTS AND OBLIGATIONS RELATED TO THE
ASSETS INJECTION
1.1 Each party hereby confirms to the other party that all the Related
Assets, Related Liabilities, Related Personnel and Related Services
under the Asset Injection Agreement (defined in the Asset Injection
Agreement,) shall be owned or assumed by Shaanxi 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).
1.2 Each party hereby confirms to the other party that, except the Related
Assets, Related Liabilities, Related Personnel and Related Services
under the Asset Injection Agreement, all the other services, assets,
liabilities and personnel (including, but not limited to, all the real
estate, non-mobile assets and personnel, non-mobile communications
long-term investments and non-mobile communications liabilities)
formerly operated and managed by the Service Company shall still be
owned or assumed by the Service Company; and accordingly, Shaanxi
Mobile enjoys no rights, undertakes no liability and bears no expense
with regard to the same.
ARTICLE TWO CONFIRMATION OF RIGHTS AND OBLIGATIONS RELATED TO
CONTRACTS
Each party hereby confirms to the other party that all the contracts in relation
to the Related Assets, the Related Liabilities, the Related Personnel and the
Related Services under the Asset Injection Agreement shall be transferred to
Shaanxi Mobile. However, due to the time limit and the enormous amount involved,
the official transfer of certain contracts to Shaanxi Mobile 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:
2.1 As of the Effective Date (as defined in the Asset Injection Agreement),
the rights and liabilities, as well as the gains and losses of the
Service Company generated from the Non-Transferred Contracts shall
belong to Shaanxi 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 Shaanxi 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 Shaanxi Mobile, and that such interests are owned by Shaanxi
Mobile. Upon demand, the Service Company shall deliver such interests
to Shaanxi Mobile;
2.2 The Service Company shall exercise or perform the rights and
liabilities under the Non-Transferred Contracts strictly in accordance
with the instructions given by Shaanxi Mobile from time to time, and
shall not amend any terms of the Non-Transferred Contracts or terminate
the same without Shaanxi Mobile's prior written consent thereto;
2.3 The reasonable expenses incurred by the Service Company for the purpose
of performing the obligations under the paragraph 2.1 above shall be
reimbursed by Shaanxi Mobile, except expenses incurred as a result of
negligence or misconduct on the part of, or other reasons caused by,
the Service Company;
2.4 If, as a result of the Service Company's negligence, misconduct 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 Shaanxi Mobile under this Agreement, Shaanxi Mobile sustains
any losses therefrom (including but not limited to litigation expenses
and damages), the Service Company shall sufficiently and timely
compensate Shaanxi Mobile for such losses; and
2.5 If there arises such a need that the rights of Shaanxi 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 Shaanxi Mobile by exercising such rights in the Service
Company's name.
ARTICLE THREE REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS
3.1 Each party hereto represents, warrants and undertakes to the other
party that:
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(1) it is an independent legal person duly established and in good
standing under the laws of the PRC;
(2) it has all requisite right, authority and power to execute this
Agreement and perform the responsibilities and obligations under
this Agreement;
(3) Any and all terms and conditions under this Agreement comply with
its incorporated and charter documents, laws and regulations of PRC,
and any agreement entered into with any third party;
(4) The representative to sign this Agreement has been duly authorized.
This Agreement, upon execution, will constitute legal, valid,
binding and enforceable obligations of each party.
ARTICLE FOUR LIABILITIES ARISING FROM BREACH OF CONTRACT
4.1 In case of any breach of the provisions or representations, warranties
and undertakings under this Agreement, the party that breaches this
Agreement shall compensate the other party hereto or undertake any and
all losses, expenses and liabilities arising from the breach of
contract of the other party, including, but not limited to, the
relevant legal proceedings or arbitration fees and attorney fees.
ARTICLE FIVE CONFIDENTIALITY
5.1 Unless stipulated or required by the law or relevant regulatory body,
any party hereto shall not provide or disclose any information in
relation to the business and finance of the other party to any entity
or individual without the prior written consent of the other party.
ARTICLE SIX FORCE MAJEURE
6.1 In any event of force majeure which is unforeseeable, unavoidable and
insurmountable as to its happening and consequences, resulting in any
inability of any party to perform the related obligations hereunder in
accordance with the agreed conditions of this Agreement, the affected
party shall immediately notify the other party of such event, and
provide the other party within fifteen (15) days with valid documents
of proof evidencing the detailed occurrence of such event, and reasons
for its inability or delay in performing all or part of such
obligations under this Agreement. Depending on the extent to which an
event of force majeure affects the performance of such obligations, the
parties hereto shall consult each other so as to work out fair and
reasonable remedies and endeavour to solve the problem.
ARTICLE SEVEN ASSIGNMENT
7.1 Unless agreed otherwise by the parties, any party shall not assign all
or part of its rights and obligation hereunder without the prior
written consent of the other party.
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ARTICLE EIGHT NO WAIVER
8.1 Unless the law states otherwise, any failure to exercise or delay in
exercising its rights or powers by one party hereunder shall not be construed as
a waiver of such rights or powers. Any one time or partial exercise of such
rights or powers by one party shall not affect any further or complete exercise
of such rights or powers.
ARTICLE NINE SETTLEMENT OF DISPUTE
9.1 Any dispute arising from or in connection with the interpretation or
performance of this Agreement shall be settled by the parties through
friendly negotiations conducted among representatives appointed by the
parties for this purpose. In the case that no resolution is reached
through consultations within 60 days after the occurrence of such
dispute, any party may bring an action to a competent people's court
for its judgment.
ARTICLE TEN GOVERNING LAW
10.1 This Agreement shall be governed by and interpreted in accordance with
the laws of the PRC.
ARTICLE ELEVEN NOTICES
11.1 Any notice to be given under this Agreement shall be made in writing
and sent by mail, telex, telegraph or facsimile to the other party's
address set out in the front page of this Agreement or to any other
address as such party may designate in writing from time to time.
11.2 Any notice shall be deemed as having been received at the time of
delivery if delivered in person; on the date of the receipt if
delivered by mail; at the time of taking back the receipt if delivered
by telex; upon delivery if transmitted by facsimile.
ARTICLE TWELVE EFFECTIVENESS AND MISCELLANEOUS
12.1 This Agreement shall come into effect upon the date when it is executed
and stamped by the legal persons or authorized representatives of the
parties.
12.2 Upon the unanimous agreement of the parties hereto, this Agreement may
be amended or supplemented and any of such amendment or supplement to
this Agreement shall be effective only if they are in writing and
executed and stamped by the legal representatives or authorized
representatives of the parties.
12.3 This Agreement is severable. Should any provision hereof for any reason
at any time be declared invalid or unenforceable by a competent court,
the validity and enforceability of the remaining provisions herein
shall remain intact. Under such circumstances, the parties hereto
shall, on the principle of honesty and trust, consult each other to
conclude a replacement provision, so as to materialize the purpose of
the severed provision.
12.4 This Agreement is executed in Chinese in two (2) original counterparts,
each of which shall be retained by each party hereto. Each counterpart
is equally effective.
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SHAANXI MOBILE COMMUNICATION COMPANY LIMITED
By: /s/HUO Zhicheng
-------------------------------------------------
Legal Representative or Authorized Representative
SHAANXI COMMUNICATION SERVICE COMPANY
By: /s/MI Lirong
-------------------------------------------------
Legal Representative or Authorized Representative
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