AMENDED AND RESTATED BUSINESS OPERATION AGREEMENT
Exhibit
4.13
AMENDED
AND RESTATED BUSINESS OPERATION AGREEMENT
This
Amended and Restated Business Operation Agreement (“Agreement”) is entered into
on the day of October 16, 2006 (the “Effective Date”), in Beijing by and among
the following parties:
PARTY
A: KONGZHONG INFORMATION TECHNOLOGIES (BEIJING) CO., LTD.
PARTY
B: BEIJING AIRINBOX INFORMATION TECHNOLOGIES CO., LTD
PARTY
C: XXXXXX XXXX
PARTY
D: XXXXXXX XXXX
PARTY
E: XXXX XXXXX
PARTY
F: LINGUANG WU
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 under this agreement refers to Kongzhong AirInbox Information
Technologies Co., Ltd. (Kongzhong AirInbox) and its subsidiaries
which are
specified in appendix. Party B is a wholly domestic−owned company
registered in the PRC;
|
| 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 Kongzhong AirInbox owning 10% equity in Kongzhong
AirInbox; Party D is a shareholder of Kongzhong AirInbox owning 42%
equity
in Kongzhong AirInbox; Party E is a shareholder of Kongzhong AirInbox
owning 3% equity in Kongzhong AirInbox and Party F is a shareholder
of
Kongzhong AirInbox owning 45% equity of Kongzhong AirInbox. Party
A, Party
B, Party C, Party D, Party E and Party F 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, Party C, Party D, Party E
and
Party F 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, 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
| 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
by laws;
|
| 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 , Party C, Party D, Party E and Party F 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 , Party C, Party D, Party E and Party F hereby jointly agree
that Party
B, Party C, Party D, Party E and Party F 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
Chief Director 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, Party D, Party E and Party F 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, Party D, Party E
and Party F shall take all the necessary inside and outside procedures
to
accomplish the above dismissal and
engagement.
|
| 2.5 |
Party
C, Party D, Party E and Party F hereby agree to sign Powers of Attorneys
meanwhile according to which Party C, Party D, Party E and Party
F 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, Party D, Party E and Party F 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.
|
2
| 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 established
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,
Party D, Party E and Party F 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 Kongzhong AirInbox as shareholders of Kongzhong AirInbox at
the time
such payables occur.
|
| 4. |
THE
AGREEMENT AND
MODIFICATIONS
|
| 4.1 |
This
Agreement and all the agreements and/or documents referenced or
specifically included herein constitute the entire agreement among
the
Parties in respect of the subject matter hereof and supersede all
prior
oral or written agreements, contracts, understanding and correspondence
among them, including (1) the Business Operation Agreement among
Party A,
Beijing AirInbox, Party D, Party E, Xxxxxx Xxxx and Xxxx Cha dated
May 10,
2004; and (2) the Business Operation Agreement among Party A, Beijing
Boya
Wuji Technologies Co., Ltd., Xxxxxx Xxxx and Xxxx Xxxxx dated March
31,
2004.
|
| 4.2 |
Any
amendment and supplement 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, effect, performance and the resolution of disputes of this Agreement
shall be governed by and construed in accordance with the PRC law.
| 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.
|
3
| 7. |
NOTICE
|
| 7.1 |
Any
notice that is given by the party/parties hereto for the purpose
of
performing the rights, duties 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: 35
F,
Tengda Xxxxx, Xx.000 Xxxxx Xxxxxx, Xxxxxxx Xxxxxxxx, Xxxxxxx, XXX
Fax: (86)10−00000000
Tele: (86)10−88576000
Addressee: Xxxxxx
Xxxx
PARTY
B: BEIJING
AIRINBOX INFORMATION TECHNOLOGIES CO., LTD.
Address: 33
F,
Tengda Xxxxx, Xx.000 Xxxxx Xxxxxx, Xxxxxxx Xxxxxxxx, Xxxxxxx, XXX
Fax: (86)10−00000000
Tele: (
86)10−88576000
Addressee: Xxxxxx
Xxxx
PARTY
C: XXXXXX
XXXX
Address: 35
F,
Tengda Xxxxx, Xx.000 Xxxxx Xxxxxx, Xxxxxxx Xxxxxxxx, Xxxxxxx, XXX
Fax: (86)10−00000000
Tele: (
86)10−88576000
Addressee: Xxxxxx
Xxxx
PARTY
D: XXXXXXX
XXXX
Address: 35
F,
Tengda Xxxxx, Xx.000 Xxxxx Xxxxxx, Xxxxxxx Xxxxxxxx, Xxxxxxx, XXX
Fax: (86)10−00000000
Tele: (
86)10−88576000
Addressee: Xxxxxxx
Xxxx
PARTY
E: XXXX
XXXXX
Address: 35
F,
Tengda Xxxxx, Xx.000 Xxxxx Xxxxxx, Xxxxxxx Xxxxxxxx, Xxxxxxx, XXX
Fax: (86)10−00000000
Tele: (
86)10−88576000
Addressee: Xxxx
Xxxxx
4
PARTY
E: LINGUANG
WU
Address: 35
F,
Tengda Xxxxx, Xx.000 Xxxxx Xxxxxx, Xxxxxxx Xxxxxxxx, Xxxxxxx, XXX
Fax: (86)10−00000000
Tele: (
86)10−88576000
Addressee: Linguang
Wu
| 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, Party D, Party E and Party F 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, Party
D,
Party E and Party F thirty 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.
|
| 8.5 |
The
appendix to this Agreement is entire and integral part of this Agreement.
|
IN
WITNESS WHEREOF the parties hereto have caused this Agreement to be duly
executed on their behalf by a duly authorized representative as of the Effective
Date first written above.
5
(No
text
on this page)
PARTY
A:
KONGZHONG INFORMATION TECHNOLOGIES (BEIJING) CO., LTD.
Authorized
Representative: /s/
PARTY
B:
BEIJING AIRINBOX INFORMATION TECHNOLOGIES CO., LTD.
Authorized
Representative: /s/
PARTY
C:
XXXXXX XXXX
Signature:
/s/ Xxxxxx Xxxx
PARTY
D:
XXXXXXX XXXX
Signature:
/s/ Xxxxxxx Xxxx
PARTY
E:
XXXX XXXXX
Signature:
/s/ Xxxx Xxxxx
PARTY
F:
LINGUANG WU
Signature:
/s/ Linguang Wu
6
Appendix
The
subsidiary companies of Kongzhong AirInbox Information Technologies Co.,
Ltd.:
(1)
Beijing Boya Wuji Technologies Co., Ltd.
(2)
Tianjin Mammoth Technologies Co., Ltd.
7
