[Translation of Chinese original]
EXHIBIT 10.15
BUSINESS OPERATIONS AGREEMENT
This Business Operations Agreement (the "Agreement") is entered into on
the day of March 31, 2004 (the "Effective Date") in Beijing by and among the
following parties:
PARTY A: KONGZHONG INFORMATION TECHNOLOGY (BEIJING) CO., LTD.
PARTY B: BEIJING BOYA WUJI TECHNOLOGIES CO., LTD.
PARTY C: XXXXXX XXXX
PARTY D: XXXX XXXXX
WHEREAS:
1. Party A is a wholly foreign-owned enterprise registered in the People's
Republic of China (the "PRC", excluding Hong Kong Special Administration
District, Macao Special Administration District and Taiwan area, for the
purpose of this "Agreement");
2. Party B is a wholly domestic-owned company registered in the PRC and is
approved by relevant governmental authorities to engage in the business of
Internet information provision services and value-added telecommunication
services;
3. A business relationship has been established between Party A and Party B
by entering into Exclusive Technical Consulting and Services Agreement,
under which Party B shall make all the payments to Party A and so the
daily operation of Party B will bear a material impact on its capacity to
pay the payables to Party A;
4. Party C is a shareholder of Party B who owns 50% equity in Party B; Party
D is a shareholder of Party B who owns 50% equity in Party B.
Party A, Party B, Party C and Party D, through friendly negotiation in the
principle of equality and common interest, hereby jointly agree the following to
abide by:
1. NON-BEHAVIOR OBLIGATION
In order to ensure Party B's performance of the agreements between Party A and
Party B and all its obligations born to Party A, Party B together with its
shareholders Party C, and Party D hereby jointly confirm and agree that Party B
shall not conduct any transaction which may materially affect its assets,
obligations, rights or the company's operation unless a prior written consent
from Party A or another Party appointed by Party A,
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including but not limited to the following contents, has been obtained:
1.1 To conduct any business which is beyond the normal business area;
1.2 To borrow money or incur any debt from any third party;
1.3 To change or dismiss any directors or to dismiss and replace any
high officials;
1.4 To sell to or acquire from any third party any assets or rights
exceeding 200,000RMB, including but not limited to any intellectual
property rights;
1.5 To provide guarantee for any third party with its assets or
intellectual property rights or to provide any other guarantee or to
set any other obligations over its assets;
1.6 To amend the Articles of Association of the company or to change its
business area;
1.7 To change the normal business process or modify any material inside
bylaws;
1.8 To assign rights and obligations under this Agreement herein to any
third party.
2. MANAGEMENT OF OPERATION AND ARRANGEMENTS OF HR
2.1 Party B together with its shareholders Party C and Party D hereby
jointly agree to accept and strictly enforce the proposals in
respect of the employment and dismissal of its employees, the daily
business management and financial management, etc., provided by
Party A from time to time.
2.2 Party B together with its shareholders Party C and Party D hereby
jointly agree that Party B, Party C and Party D shall only appoint
the personnel designated by Party A as the directors of Party B in
accordance with the procedures regulated by laws and regulations and
the Article of Association of the company, and urge the chosen
directors to elect the Chairman of the company according to the
persons designated by Party A, and Party B shall engage Party A's
senior officers as Party B's General Manager, Chief Financial
Officer, and other senior officers.
2.3 If any of the above officers quits or is dismissed by Party A, he or
she will lose the qualification to undertake any positions in Party
B and therefore Party B, Party C and Party D shall appoint other
candidates designated by Party A to assume such position.
2.4 For the purpose of the above-mentioned 2.3, Party B, Party C and
Party D shall take all the necessary inside and outside procedures
to accomplish the above dismissal and engagement in accordance with
relevant laws, the Articles of
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Association of the company and this Agreement.
2.5 Party C and Party D hereby agree to, upon the execution of this
Agreement, simultaneously sign Powers of Attorneys pursuant to which
Party C and Party D shall authorize personnel designated by Party A
to exercise their shareholders' rights and their full voting rights
of shareholders on Party B's shareholders' meetings. Party C and
Party D further agree to replace the authorized person appointed in
the above mentioned Power of Attorney at any moment pursuant to the
requirements of Party A.
3. OTHER AGREEMENTS
3.1 In the event that any of the agreements between Party A and Party B
terminates or expires, Party A shall be entitled to terminate all
agreements between Party A and Party B including but not limited to
Exclusive Technical and Consulting Services Agreement.
3.2 Whereas the business relationship between Party A and Party B has
been establishes through the Exclusive Technical Consulting and
Services Agreement and other agreements and the daily business
activities of Party B shall bear a material impact on its capacity
to pay the payables to Party A, Party C and Party D jointly agree
that they will immediately and unconditionally pay or transfer to
Party A any bonus, dividends or any other incomes or benefits (no
matter what kind of form it is in) obtained from Party B as
shareholders of Party B at the time such payables occur.
4. ENTIRE AGREEMENT AND MODIFICATIONS
4.1 This Agreement together with all the other agreements and/or
documents mentioned or specifically included in this Agreement will
be part of the whole agreements concluded in respect of the object
matters in this Agreement and shall replace all the other prior oral
and written agreements, contracts, understandings and communications
among all the parties involving this object matters.
4.2 Any modification of this Agreement shall take effect only after it
is executed by each Party. The amendment and supplement duly
executed by each Party shall be part of this Agreement and shall
have the same legal effect as this Agreement.
5. GOVERNING LAW
The execution, validity, performance, interpretation and disputes of this
Agreement shall be governed by and construed in accordance with the PRC
law.
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6. DISPUTE RESOLUTION
6.1 The parties shall strive to settle any dispute arising from the
interpretation or performance through negotiation in good faith. In
case no settlement can be reached through consultation, each party
can submit such matter to China International Economic and Trade
Arbitration Commission ("CIETAC") for arbitration in accordance with
the current rules of CIETAC. The arbitration proceedings shall take
place in Beijing and shall be conducted in Chinese. The arbitration
award shall be final and binding upon all the parties.
6.2 Each Party shall continue to perform its obligations in good faith
according to the provisions of this Agreement except for the matters
in dispute.
7. NOTICE
7.1 Any notice that is given by the party/parties hereto for the purpose
of performing the rights and obligations hereunder shall be in
written form. Where such notice is delivered personally, the actual
delivery time is regarded as notice time; where such notice is
transmitted by telex or facsimile, the notice time is the time when
such notice is transmitted. If such notice does not reach the
addressee on business date or reaches the addressee after the
business time, the next business day following such day is the date
of notice. The written form includes facsimile and telex.
7.2 Any notice or other correspondence hereunder provided shall be
delivered to the following addresses in accordance with the above
terms:
PARTY A: KONGZHONG INFORMATION TECHNOLOGY (BEIJING) CO., LTD.
Address: Xxxx 000, Xxxxx X, Xxx Xxx Xxxxxxxx, Xx. 0, Xxx Xxx North Street,
Xi Cheng District, Beijing
Fax: (00) 00-00000000
Tele: (00) 00-00000000
Addressee: Xxxxxx Xxxx
PARTY B: BEIJING BOYA WUJI TECHNOLOGIES CO., LTD.
Address: Xxxx 000, Xxxxx X, Xxx Xxx Xxxxxxxx, Xx. 0, Xxx Xxx North Street,
Xi Cheng District, Beijing
Fax: (00) 00-00000000
Tele: (00) 00-00000000
Addressee: Yang Zha
PARTY C: XXXXXX XXXX
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Address: 13 A, Xx. 0 Xxxxxxxx, Xxxx Xxxxx Xxxxx Xxxxxx, Xx Xxxx, Hai Xxxx
District, Beijing
Fax:
Tele:
Addressee: Xxxxxx Xxxx
PARTY D: XXXX XXXXX
Address: 13 A, Xx. 0 Xxxxxxxx, Xxxx Xxxxx Xxxxx Xxxxxx, Xx Xxxx, Hai Xxxx
District, Beijing
Fax:
Tele:
Addressee: Xxxx Xxxxx
8. EFFECT, TERM AND OTHER ABOUT THIS AGREEMENT
8.1 This Agreement shall be executed by a duly authorized representative
of each party as of the Effective Date first written above and
become effective simultaneously. The term of this agreement is ten
years unless early termination occurs in accordance with the
relevant provisions herein. This Agreement may extend automatically
for another ten years except Party A give notice of no extension in
written three months prior to expiration of the term of this
Agreement.
8.2 Party B, Party C and Party D shall not terminate this Agreement
within the term of this Agreement. Notwithstanding the above
stipulation, Party A shall have the right to terminate this
Agreement at any time by issuing a prior written notice to Party B,
Party C and Party D thirty (30) days before the termination.
8.3 In case any terms and stipulations in this Agreement is regarded as
illegal or can not be performed in accordance with the applicable
law, it shall be deemed to be deleted from this Agreement and lose
its effect and this Agreement shall be treated as without it from
the very beginning. However, the rest stipulations will remain
effective. Each Party shall replace the deleted stipulations with
those lawful and effective ones, which are acceptable to each Party,
through mutual negotiation.
8.4 Any non-exertion of any rights, powers or privileges hereunder shall
not be regarded as the waiver thereof. Any single or partial
exertion of such rights, powers or privileges shall not exclude each
party from exerting any other rights, powers or privileges.
IN WITNESS WHEREOF the parties hereto have caused this Agreement to be
duly executed by a duly authorized representative each on behalf of the party as
of the Effective Date first written above.
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PARTY A: KONGZHONG INFORMATION TECHNOLOGY (BEIJING) CO., LTD.
Authorized Representative: /s/ Xxxx Xxxx
_________________
PARTY B: BEIJING BOYA WUJI TECHNOLOGIES CO., LTD.
Authorized Representative: /s/ Yang Zha
_________________
PARTY C: XXXXXX XXXX
Signature: /s/ Xxxxxx Xxxx
_________________
PARTY D: XXXX XXXXX
Signature: /s/ Xxxx Xxxxx
__________________
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