English Translation] ASSET INJECTION AGREEMENT
Exhibit 4.3
[English Translation]
This Asset Injection Agreement (the “Agreement”) is executed by the following three parties on April 9, 2004 in Beijing, the People’s Republic of China (“China”):
| (1) | CHINA MOBILE COMMUNICATIONS CORPORATION, a wholly state-owned limited liability company duly established and in valid existence under the laws of China, with its legal address at 00 XxxXxxx Xxxxx, XxXxxxx Xxxxxxxx, Xxxxxxx, Xxxxx (“CMCC”); |
| (2) | BEIJING P&T CONSULTING & DESIGN INSTITUTE, a wholly state-owned enterprise duly established and in valid existence under the laws of China, with its legal address at 000 XxXxxXxxxXxx Xxxxx, XxXxxxx Xxxxxxxx, Xxxxxxx, Xxxxx (the “Zhongjing”); and |
| (3) | BEIJING P&T CONSULTING & DESIGN INSTITUTE COMPANY LIMITED, a limited liability company duly established and in valid existence under the laws of China, with its legal address at 000 XxXxxXxxxXxx Xxxxx, XxXxxxx Xxxxxxxx, Xxxxxxx, Xxxxx (“Jingyi”). |
WHEREAS:
| 1. | Both Jingyi and Zhongjing are legal persons wholly owned by CMCC; |
| 2. | Pursuant to the relevant laws and regulations, the “Articles of Incorporation of CMCC” agreed in principle by the State Council and published by the Ministry of Information Industry and the former State Economy & Trade Commission, and approval of relevant government authorities, CMCC has decided to, in the name of CMCC, inject and contribute the inspection, design, consulting, service businesses of post and telecommunication (and other relevant businesses), operated and managed by Zhongjing, and Related Assets and Related Liabilities into Jingyi, which will be operated and managed by Jingyi. |
NOW, THEREFORE, the three Parties, namely CMCC, Zhongjing and Jingyi, have reached the following agreement:
ARTICLE ONE DEFINITIONS
1.1 Unless the context indicates otherwise, the following terms shall have the meanings as defined below:
“ASSET APPRAISAL REPORT” shall mean the asset appraisal report, with the Base Date being December 31, 2003, prepared by Zhongqihua Asset Appraisal Company Limited and approved by the Commission of the State-owned Assets Supervision and Administration of the State Council with regard to the assets (including its 80% of equity interests in Beijing Bright Golden Bridge Posts & Telecommunications Project-Management Co. Ltd.) and liabilities of the inspection, design, consulting, service businesses of post and telecommunication (and other relevant businesses), operated and managed by Zhongjing (see Appendix A of the Agreement).
“RELATED ASSETS” shall mean all assets (including its 80% of equity interests in Beijing Bright Golden Bridge Posts & Telecommunications Project-Management Co. Ltd.) set out in the Asset Appraisal Report and the contracts, agreements, certificates, business and operational data, documents and files and all rights and interests in relation to the said assets.
“RELATED LIABILITIES” shall mean all liabilities set out in the Asset Appraisal Report and the contracts, agreements, certificates, business and operational data, documents and files in relation to the said liabilities.
“RELATED PERSONNEL” shall mean the 452 employees engaged in its core businesses and employed by Zhongjing.
“RELATED SERVICES” shall mean the inspection, design, consulting, service businesses of post and telecommunication (and other relevant businesses), operated and managed by Zhongjing, and all of its relevant qualifications or licenses or permits held by it.
“EFFECTIVE DATE” shall mean the date when the Agreement is executed.
| 1.2 | Unless the Agreement specifies otherwise, the articles and appendixes mentioned herein shall mean the articles and appendixes of the Agreement. All appendixes constitute an integral part of the Agreement. |
ARTICLE TWO INJECTION OF ASSETS AND SERVICES
| 2.1 | CMCC shall, on the Effective Date, inject all the Related Assets, the Related Liabilities and the Related Services into Jingyi. |
| 2.2 | Upon the Effective Date, Jingyi shall beneficially own the Related Assets and the Related Services, clear and free of any encumbrance, pledge or any other third-party interests, and shall assume the Related Liabilities. |
| 2.3 | Pursuant to the Asset Appraisal Report, the total value of such Related Assets and Related Liabilities is RMB150,232,500. |
| 2.4 | During the period from the Base Date (i.e. December 31, 2003) to the Effective Date, Jingyi shall enjoy and assume any and all assets, interests, rights and liabilities arising from the Related Assets, the Related Liabilities and Related Services. |
| 2.5 | Zhongjing shall, pursuant to the terms of this Agreement, notify the other party to any relevant contract regarding the transfer of the Related Assets, the Related Liabilities and the Related Services to Jingyi, and obtain such party’s consent to such transfer. |
ARTICLE THREE REGISTERED CAPITAL AND EQUITY INTERESTS AFTER ASSETS INJECTION
| 3.1 | After the Effective Date, Jingyi shall handle the relevant registered capital assets injection formalities in a timely fashion. |
| 3.2 | After the assets injection in accordance with the above article, CMCC will still hold 100% of the equity interests in Jingyi. |
ARTICLE FOUR RELATED PERSONNEL
| 4.1 | From the Effective Date, the Related Personnel shall be employed by Jingyi. To avoid any dispute, during the period from the Base Date to the Effective Date, any and all changes of the Related Assets or the Related Liabilities arising from the employment of the Related Personnel shall be handled pursuant to the Agreement Article 2.4. |
ARTICLE FIVE REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS
| 5.1 | Each Party hereto represents, warrants and undertakes to the other Parties that: |
| (1) | it is an independent legal person duly established and in valid existence under the laws of China; |
| (2) | it has all requisite authority, power and authorization to execute the Agreement and perform the responsibilities and obligations under the Agreement; |
| (3) | any and all terms and conditions under the Agreement comply with its Articles of Incorporation, laws and regulations of China, and any agreement entered into with any third party; |
| (4) | the representative to sign the Agreement has been duly authorized. The Agreement, upon execution, will constitute legal, valid, binding and enforceable obligations of each of CMCC, Zhongjing and Jingyi. |
| 5.2 | Each of CMCC and Zhongjing hereby represents and warrants to Jingyi that, as of the Effective Date, Jingyi will own the Related Assets and the Related Services, clear and free of any encumbrance, pledge or any other third-party interests. |
| 5.3 | Jingyi hereby represents and warrants to CMCC and Zhongjing that, as of the Effective Date, Jingyi will undertake the Related Liabilities. |
ARTICLE SIX LIABILITIES ARISING FROM BREACH OF CONTRACT
| 6.1 | In case of any breach of the provisions or representations, warranties and undertakings under the Agreement, the Party that breaches the Agreement shall compensate the other parties to the Agreement or undertake any and all losses, expenses and liabilities arising from the breach of contract of the other parties, including, but not limited to, the relevant litigation or arbitration costs and attorney fees. |
ARTICLE SEVEN CONFIDENTIALITY
| 7.1 | Unless stipulated or required by the law or relevant regulatory body, any party to the Agreement shall not provide or disclose any information in relation to the business and finance of the other parties to any institution or individual without the prior written consent of the other parties. |
ARTICLE EIGHT FORCE MAJEURE
| 8.1 | In any event of force majeure which is unforeseeable, unavoidable and insurmountable to its happening and consequences, resulting in any inability on any Party to perform the related obligations hereunder, the affected Party shall immediately notify the other Parties of such event, and provide the other Parties within fifteen (15) days valid documents of proof evidencing the detailed occurrence of such event, and reasons for its inability or delay to perform all or part of such obligations under the Agreement. Upon 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 matter. |
ARTICLE NINE SETTLEMENT OF DISPUTES
| 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 | The Agreement shall be governed by and interpreted in accordance with Chinese law. |
ARTICLE ELEVEN NO WAIVER
| 11.1 | 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 TWELVE NOTICES
| 12.1 | Any notice to be given under the Agreement shall be made in writing and sent by hand delivery or mail or facsimile to the other Party’s address set out in the front page of the Agreement or to any other address as such Party may designate in writing from time to time. |
| 12.2 | Any notice shall be deemed as having been received at the time of delivery if delivered in person; if delivered by mail, on the second working day of the mailing date as indicated by the postal chop; if transmitted by facsimile, upon delivery. |
ARTICLE THIRTEEN EFFECTIVENESS AND MISCELLANEOUS
| 13.1 | The Agreement shall come into effect upon the date when it is executed by the legal persons or authorized representatives of the Parties. |
| 13.2 | Upon the unanimous agreement of the Parties hereto, the Agreement may be amended or supplemented and any of such amendment or supplementary to the Agreement shall be effective only if they are in writing and executed by the legal persons or authorized representatives of the Parties. |
| 13.3 | The Agreement is severable. Should any provision hereof for any reason at any time be declared invalid or unenforceable by a court of competent jurisdiction, then 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 reach the target of the severed provision. |
| 13.4 | The Agreement is executed in Chinese in four (4) original counterparts, three of which shall be retained by each party hereto, one shall be filed with the government authority administering in industry and commerce. Each counterpart is equally effective. |
PARTY A: CHINA MOBILE COMMUNICATIONS CORPORATION
| By: | /s/ ZHANG Ligui | |
| Legal Person |
PARTY B: BEIJING P&T CONSULTING & DESIGN INSTITUTE
| By: | /s/ ZHANG Xiangli | |
| Authorized Representative |
PARTY C: BEIJING P&T CONSULTING & DESIGN INSTITUTE COMPANY LIMITED
| By: | /s/ ZHANG Xiangli | |
| Authorized Representative |
