EXHIBIT 4.15
FINDER'S FEE AGREEMENT FOR LICENSING
This Finder's Fee Agreement for Licensing (the "AGREEMENT") is entered into and
effective this 26 day of August, 2004 (the "EXECUTION DATE"), by and between:
Shanghai Linktone Consulting Co., Ltd., a corporation organized and existing
under the laws of People's Republic of China ("PRC") and having its principal
place of business at 0X, Xxxxxxx Xxxxx, 000 Xxxxxxx Xxxx Xxxx, Xxxxxxxx 200001,
PRC ("LINKTONE"); and
Mitsubishi Corporation, a corporation organized and existing under the laws of
Japan and having its principal place of business at 0-0, Xxxxxxxxxx 0-xxxxx,
Xxxxxxx-xx, Xxxxx, Xxxxx ("MC").
RECITALS
WHEREAS, Linktone is a provider of wireless value-added services to mobile
telephone users (collectively, "MOBILE USERS") in the PRC and desires to
distribute certain content including, without limitation, comics, cartoon
characters and graphics (collectively, the "CONTENT") for Mobile Users; and
WHEREAS, MC is willing to introduce to Linktone Japanese companies which own
Content ("CONTENT HOLDERS") on behalf of and at the risk of Linktone, subject to
the terms and conditions set forth below.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants set forth herein the
parties agree as follows:
1. APPOINTMENT
1.1 Subject to the terms and conditions of this Agreement, Linktone hereby
appoints MC as its Preferred Representative in Japan to facilitate the
procurement of Content by Linktone or its affiliates which is suitable for
wireless value-added services to Mobile Users from Content Holders, with the
intention of enabling Linktone or its affiliates to execute agreements with
Content Holders which grant Linktone or its affiliates the right and license to
use, sublicense, distribute and publicly display Content ("LICENSE AGREEMENTS"),
and MC hereby accepts such appointment. As used in this Agreement, the term
"PREFERRED REPRESENTATIVE" shall mean an agent that has the right to provide
Linktone with the Services (as defined in Article 1.2) in Japan.
1.2 MC agrees that, during the term of this Agreement and subject to the
terms and conditions set forth herein, it will use commercially reasonable
efforts to provide the following services (collectively, the "SERVICES"):
(a) Research and study the Japanese market in connection with Content;
Prepare periodic (delivered to Linktone at least once per calendar quarter)
written reports specifying the company name of Content Holders with which MC
makes contact, it being agreed that MC shall obtain Linktone's prior consent
before contacting any Content Holder (each, a "REPORT"); and
(b) Negotiate with Content Holders the terms and conditions of License
Agreements for and on behalf of Linktone or its affiliate, in each case in
accordance with prior instructions by Linktone or its affiliates from time to
time.
1.3 MC shall not provide the Services to any other provider of wireless
value-added services to Mobile Users or carriers in the PRC except for Linktone
during the term of this Agreement; provided, however, that if within one month
of delivering any Report to Linktone, Linktone states in writing (including
e-mail) that it is not interested in distributing Content from any Content
Holder listed in the Report, MC may thereafter provide Services to any other
provider of wireless value-added services to Mobile Users or carriers with
respect to such Content Holder.
2. COMMISSION
2.1 In the event that Linktone or its affiliate enters into and executes
any License Agreement with a Content Holder which is specified in a Report, MC
shall be entitled to a commission equal to five percent (5%) of the Net Revenue
derived from each such License Agreement (the "COMMISSION") from the effective
date of each such License Agreement until the earlier of (i) the two year
anniversary of the launch of commercial services by Linktone or its affiliate
pursuant to such License Agreement, and (ii) the termination of all payment
obligations under such License Agreement. Linktone's obligation to make
Commission payments under this Article 2 shall survive termination of this
Agreement. As used in this Agreement, the term "NET REVENUE" shall mean the
amount that shall be calculated as follows:
Net Revenue = the gross revenue arising out of or in connection with
Linktone's or its affiliate's sale, sub-licensing or other
disposition of any rights related to Content licensed
under each License Agreement, including the gross revenues
of any services provided by Linktone in connection
therewith, carrier fee (including carrier service
fees and network transmission fees charged by the carrier)
business tax.
2.2 Linktone shall make Commission payments to MC quarterly within thirty
(30) days from the date MC issues a written request for payment; provided
however, that in the event that, during any such quarterly period, Linktone or
its affiliate has not received all Net Revenues payable from any person from
whom Linktone or its affiliate is due to receive Net Revenues, Linktone's
obligation to make Commission payments on the Net Revenues from such person
shall be extended until the date that is five (5) days after the day that
Linktone or its affiliate receives all outstanding Net Revenues from such
person.
2.3 The Commission will be paid in United States Dollars or the currency
which is determined at the option of MC; provided, that if MC requests that
payment be made in any currency other than United States Dollars, the costs and
fees of exchanging the Commission into such other currency shall be borne by MC
and MC shall bear the risk of fluctuations in the exchange rate between the
United States Dollar and such other currency.
2.4 All payments due to MC under this Agreement shall be made by bank wire
transfer to the bank account designated by MC. No payment shall be made to any
person, firm or corporation other than MC.
3. LINKTONE CUSTOMER AGREEMENTS. Any agreement between Linktone or its
affiliate and any other person that gives rise to Net Revenues shall be in
writing, signed and executed between Linktone or its affiliate and each such
person. For the avoidance of doubt, MC shall not in any way be liable or
responsible for any obligation and liability under any such agreement, or from
any License Agreements between Linktone or its affiliate and the Content
Holders.
4. EXPENSES. All expenses and disbursements incurred by MC in its
performance of the services as set forth in Article 2 shall be borne by MC.
5. NO LIABILITIES: INDEMNITY. In no event will either party be liable for
any loss of profits, loss of business, or for any indirect, special, incidental
or consequential damages of any kind, even if such party has been advised of the
possibility of such damages; and (b) Linktone's entire liability to MC for
damages concerning performance or nonperformance by Linktone or in any way
related to the subject matter of this Agreement, and regardless of the form of
any claim or action, will not exceed the amount paid to MC hereunder in the
prior 12 month period.
6. EFFECTIVE PERIOD. This Agreement shall be effective for a period of one
(1) year commencing on the date hereof and shall thereafter be automatically
extended for successive one (1) year renewal terms, unless either party gives
the other a notice of termination in writing at least one (1) month prior to the
expiration of the original term or any such extension term of this Agreement.
7. ASSIGNMENT. Neither party to this Agreement may assign or transfer its
rights or obligations hereunder to any other person or enterprise without the
prior written consent of the other party.
8. GOVERNING LAW. This Agreement and the rights and obligations hereunder
and the relations of the parties and all matters arising under or in connection
with this Agreement, including the construction, validity, performance and
termination thereunder, shall be governed, construed and determined in
accordance with the laws of Hong Kong SAR.
9. PROVISION AGAINST WAIVER. No waiver of any terms or provisions of this
Agreement, or of any breach thereof, shall be construed as a waiver of any other
term or provision, or of any other breach of the same terms or provisions. No
waiver of any terms or provisions of this Agreement shall be effective unless
made in writing signed by the party against whom such waiver is sought to be
enforced.
10. ARBITRATION. All disputes, controversies or differences which may
arise between the parties hereto, out of, in relation to or in connection with
this Agreement, or the breach thereof, shall be finally settled by arbitration
in Hong Kong SAR in accordance with the UNCITRAL Arbitration Rules. The award
rendered by arbitrator(s) shall be final and binding upon both parties.
11. EXECUTION AND MODIFICATION.
11.1 This Agreement contains the entire and only agreement between the
parties with respect to the subject matter hereof. Any representations, or terms
and conditions relating to transactions within the scope of this Agreement which
are not incorporated or referenced herein shall not be binding upon either
party. THE PRIOR AGREEMENT BETWEEN MC AND LINKTONE DATED 15 NOVEMBER 2001 IS
HEREBY TERMINATED.
11.2 No amendment, modification, extension, renewal, ratification,
rescission, termination or notice of termination of this Agreement or any of the
provisions hereof nor any representation, promise or condition relating to this
Agreement shall be binding upon either party unless made in writing and signed
by an authorized representative of such party.
11.3 If any provision of this Agreement or the applicability of such
provision shall be held illegal or unenforceable, the remainder of the Agreement
or the application of such provision to other circumstances shall not be
affected thereby.
11.4 This Agreement will not be construed as creating an agency,
partnership, joint venture or any other form of association, for tax purposes or
otherwise, between the parties; the parties will at all times be and remain
independent contractors and
neither party nor its agents have any authority of any kind to bind the other
party in any respect whatsoever.
IN WITNESS WHEREOF, both parties have caused this Agreement to be executed in
duplicate, each of which shall be considered as original, by their respective
officers thereunto duly authorized as of the day and year first above written.
Shanghai Linktone Consulting Co., Ltd.
By: /s/ Xxxxxxx Xxxx Lei
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Name: Xxxxxxx Xxxx Lei
Title: Chief Executive Officer
Mitsubishi Corporation
By: /s/ Xxxxxxx Xxxxxxxx
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Name: Xxxxxxx Xxxxxxxx
Title: General Manager, Consumer Business Development Unit
