Option Agreement
Exhibit
4.47
THIS OPTION AGREEMENT (this “Agreement”) is
entered into by and among the following parties (the “Parties”) in Beijing,
People’s Republic of China (“PRC”) on February 8, 2009.
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Party
A:
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KongZhong
(China) Co., Ltd.,
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Party
B:
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Xxxx
Xx
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Party
C:
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Xxxxxx
Xxxx
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Party
D:
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Beijing
Xinrui Network Technology Co.,
Ltd.,
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WHEREAS
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1.
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Party
A is a wholly foreign-owned enterprise registered in the
PRC.
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2.
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Party
D is a limited liability company registered in the PRC and licensed by
relevant government authorities to hold a Telecommunications Value-added
Service Operation Permit, which qualifies it to engage in
telecommunications value-added
service.
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3.
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Party
B and Party C (the “Authorizing Parties” or the “Shareholders of Party D”)
are the shareholders of Party D and own 49% and 51% equity interest in
Party D respectively. Party B and Party C have signed Capital Contribution
Transfer Agreements with the original shareholders of Party D who
transferred their respective equity interest in Party D on February 8,
2009. The amount for the transfer of equity interest was paid by Party
A.
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4.
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THE PARTIES THEREFORE AGREE AS
FOLLOWS:
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1.
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GRANT
OF THE OPTION
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1.1
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Grant
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The
authorizing Parties hereby grant to Party A an option to purchase all their
respective equity interests in Party D at the lower price between the lowest
price permitted by PRC laws or the audited net asset value of Party D once or
several times by Party A or its designated third party.
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1.2
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Term
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This
Agreement shall take effect as of the date of execution by the parties hereto
and shall remain in full force and effect until all of the equity interests held
by the Shareholders of Party D in Party D have been purchased by Party A with
the permission of PRC laws.
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2.
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EXERCISE OF THE OPTION AND ITS
CLOSING
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2.1
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Timing
of Exercise
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2.1.1
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The
Authorizing Parties agree unanimously that with the permission of PRC laws
and regulations, Party A may exercise part or full option anytime during
the term of this Agreement.
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2.1.2
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The
Authorizing Parties agree unanimously that there is no limitation on the
times for Party A to exercise its option, unless Party A has purchased all
of the equity interests in Party D.
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2.1.3
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The
Authorizing Parties agree unanimously that Party A may designate in its
sole discretion any third party to exercise the options on its behalf, in
which case Party A shall provide a prior written notice to the Authorizing
Parties.
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1
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2.2
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Presentation
of the amount for the options
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The
Authorizing Parties agree unanimously that Party A will present all the amount
by exercising the options by Party A or its designated third party to Party D
free of charge.
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2.3
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Transfer
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The
Authorizing Parties agree unanimously that the options of Party A under this
Agreement may be transferred to a third party, which shall be deemed as a party
to this Agreement and is entitled to exercise the options under terms of this
Agreement, to enjoy the rights assume the obligations of Party A under this
Agreement.
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2.4
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Notice
Requirement
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To
exercise an Option, Party A shall send an written notice to the Authorizing
Parties of such Option is to be exercised 10 days prior to each closing date (as
defined below), specifying the following:
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2.4.1
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The
date of the effective closing of such purchase (a “Closing
Date”), that is, the date when formally filing an application for
registration of equity interests change with the commercial and industrial
administrative authorities;
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2.4.2
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The
name of the person in which the Equity Interests shall be
registered;
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2.4.3
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The
amount of Equity Interests to be purchased from such Authorizing
Parties;
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2.4.4
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Means
of payment; and
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2.4.5
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A
power of attorney (applicable if a third party has been designated to
exercise the Option)
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The
Authorizing Parties agree unanimously that Party A is entitled to exercise the
Options and elect to register the Equity Interests in the name of a third party
as it may designates from time to time. The Authorizing Parties agree that as
long as Party A or its designated third Party forward the request to exercise
the options, the Authorizing Parties shall execute the equity interests transfer
agreement and other relevant documents in accordance with the notice and this
Agreement within 10 work days upon receipt such notice.
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2.5
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Closing
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On each
Closing Date, Party A shall pay to the relevant Authorizing Parties the
applicable purchase price for the Equity Interests to be purchased on such
Closing Date as provided in Article 1 above. Party A and the Authorizing Parties
shall provide necessary assistance to Party D with respect to the processing the
registration for change of equity interests with the commercial and industrial
administrative authorities.
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3.
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REPRESENTATIONS
AND WARRANTIES
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3.1
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The
Authorizing Parties hereby present and warrant as
follows:
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3.1.1
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They
have the full power and authority to enter into and perform this
Agreement;
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3.1.2
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The
fulfilling of the obligations hereunder does not violate any applicable
laws, regulations and contracts, or require any government authorization
or approval;
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3.1.3
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There
is no lawsuit, arbitration or other legal or administrative procedures
pending which, based on its knowledge, will possibly have material and
adverse affects on the performance of this
Agreement;
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3.1.4
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The
Authorizing Parties will not set pledge, debt or other third party rights
on the equity interests in Party D and will not dispose the same to any
third party by transferring, presenting, pledging or any other
means.
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3.1.5
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There
is no any pledge, debt or other third party right on the equity interests
in Party D held by the Authorizing
Parties.
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3.1.6
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The
options granted to Party A are exclusive, and the Authorizing Parties
shall not grant options or similar right to other parties in any
ways.
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3
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3.2
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Undertaking
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Considering
that Party A or its designated third party will present all the amounts gained
from exercising the options to Party D, Party D hereby undertakes to Party A
that it will bear all costs arising from executing each Assignment, process all
formalities needed for Party A or its designated third party to be the
shareholders of Party D, the Ancillary Documents and any other relevant
documents required therefore, and will complete all such formalities as are
necessary to make Party A or its designated party a full and proper shareholder
of Party D. Such formalities include, but are not limited to, assisting Party A
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.
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TAXES
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All
taxes arising from the performance of this Agreement will be paid by Party
D.
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5.
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BREACH
OF AGREEMENT
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5.1
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Unless
otherwise provided by this Agreement, a party is deemed as in breach of
this Agreement if it fails to fully perform or suspends performing its
obligations under this Agreement, and does not correct its wrongdoings
within 30 days upon receipt of the notice by the other party, or its
representations and warranties are
unreal.
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4
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5.2
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If
one party violates this Agreement of its representations and warranties in
this Agreement, the abiding party may notify the default party in writing
requesting it to correct its wrongdoings within 10 days of receiving the
notice, take corresponding measures to effectively and timely avoid the
damages and to resume performing this Agreement. If there are damages, the
default party shall compensate the abiding party, causing the abiding
party to obtain all receivable rights and interests from the performance
of the Agreement.
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5.3
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If
either party breaches this Agreement, which causes the other party to bear
any expenses, liabilities or suffer any losses (including not limited to
the profit losses of the company), the default party shall compensate the
abiding party with respect to such expenses, liabilities or losses
(including but not limited to the interests lost or paid due to the breach
and attorney fees). The amount of the compensation shall equal the losses
due to the breach. The compensation includes the receivable interests by
the abiding party from performance of this Agreement, but shall not exceed
reasonable expectations of the
Parties.
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5.4
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In
case all Parties breach this Agreement, the amounts of compensation shall
be determined in accordance with the severity of their respective
breaches.
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6.
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GOVERNING
LAW AND DISPUTE SETTLEMENT
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6.1
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Governing
Laws
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This
Agreement shall be governed by the laws of the PRC, including but not limited to
the execution, performance, effect and interpretation of this
Agreement.
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6.2
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Friendly
Consultation
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The
Parties shall settle the dispute regarding the interpretation or performance of
this Agreement through friendly consultation or mediation by a third party. Any
dispute that failing such consultation or mediation shall be submitted to the
arbitration authority for arbitration within 30 days after the commencement of
such discussions.
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6.3
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Arbitration
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Any
dispute in connection with this Agreement shall be submitted to China
International Trade Arbitration Committee for arbitration in accordance with its
arbitration rules. The arbitration award shall be final and binding on all
Parties to this Agreement.
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7
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CONFIDENTIALITY
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7.1
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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
part agreed upon by the Parties with a prior written agreement). Each
Party’s obligations under this clause shall survive after the termination of
this Agreement.
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7.2
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Exceptions
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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 7.1 above.
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8.
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MISCELLANEOUS
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8.1
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Entire
agreement
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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.
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8.2
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This
Agreement shall only be amended by a written instrument signed by all the
Parties.
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6
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8.3
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Notices
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8.3.1
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Any
notices or other correspondences among the Parties in connection with the
Performance of this Agreement shall be in writing and be
delivered in person, by registered mail, prepaid mail, recognized express
mail or facsimile to correspondence addresses of the
parties:
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8.3.2
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Notices
and correspondences shall be deemed to have been effectively
delivered:
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8.3.2.1
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At
the exact time 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;
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8.3.2.2
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On
the date that the receiving Party signs for the document, if delivered in
person (including express mail);
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8.3.2.3
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On
the fifteenth (15th) day after the date shown on the registered mail
receipt, if sent by registered
mail;
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8.4
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Binding
Force
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This
Agreement shall be binding on the Parties.
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8.5
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Language
and Counterparts
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This
Agreement shall be executed in 5 originals in Chinese, with each party holding
one copy.
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8.6
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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 any day from Monday through Friday in a week.
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8.7
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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.
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8.8
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Unspecified
Matters
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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 laws.
Party
A: KongZhong (China) Co., Ltd.,
Authorized
Representative: (Seal)
Party
B: Xxxx Xx
Signature:
/s/ Xxxx Xx
Party
C: Xxxxxx Xxxx
Signature:
/s/ Xxxxxx Xxxx
Party
D: Beijing Xinrui Network Technology Co., Ltd.,
Authorized
Representative: (Seal)
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