1
EXHIBIT 10.35
AGREEMENT REGARDING THE TRANSFER OF PERSONNEL, FINANCES AND ASSETS NOT
DIRECTLY RELATED TO MOBILE COMMUNICATION SERVICES
This Agreement Regarding the Transfer of Personnel, Finances and Assets
Not Directly Related to Mobile Communications Services (the "Agreement") is
executed by the following three parties on August 30, 2000 in Liaoning:
(1) CHINA MOBILE COMMUNICATIONS CORPORATION, a wholly state-owned limited
liability company duly established and existing under the laws of the
People's Republic of China ("PRC"), with its legal address at 53 A,
Xibianmen Nei Da Jie, Xuanwu District, Beijing, PRC (the "China Mobile
Group");
(2) LIAONING MOBILE COMMUNICATION COMPANY LIMITED, a limited liability
company duly established and existing under the laws of PRC, with its
legal address at 128, Shi Yi Xxx Xx, Shenhe District, Shenyang, PRC
(the "Liaoning Mobile"); and
(3) LIAONING COMMUNICATION SERVICE COMPANY LIMITED, a limited liability
company enterprise duly established and existing under the laws of PRC,
with its legal address at 128, Shi Yi Xxx Xx, Shenhe District,
Shenyang, PRC (the "Service Company").
WHEREAS:
1. Pursuant to the "Notice of Guidance Opinions on Establishing China
Mobile Group" (Xin Bu Zheng [1999] No. 360) issued by the Ministry of
Information Industry, the communication businesses and related assets,
as well as certain other long-term investments and assets in Liaoning
shall be transferred to and managed by China Mobile Group;
2. Pursuant to the principles and plans regarding the transfer of
personnel, finances and assets as stipulated in the "Notice of Guidance
Opinions on Establishing China Mobile Group" (Xin Bu Zheng [1999] No.
360) and the "Circular of Certain Key Issues to be Clarified in the
Separation of Mobile Communication Businesses" (Xin Bu Zheng [1999] No.
457) issued by the Ministry of Information Industry, the related
personnel, finances and assets and (including but not limited to the
"Properties", the "Non-Mobile Assets" , the "Related Personnel", the
"Non-Mobile Long-term Investments" and the "Non-Mobile Liabilities"
under this Agreement, each as defined in Article 1.1 hereof) will be
owned, assumed and employed, as the case may be, by China Mobile
Group's Liaoning subsidiary;
3. China Mobile Group, Liaoning Mobile and the Service Company jointly
agree that the "Properties", the "Non-Mobile Assets", the "Related
Personnel", the
1
2
"Non-Mobile Long-term Investments" and the "Non-Mobile Liabilities" to
be received by China Mobile Group's Liaoning subsidiary pursuant to the
principles and plans regarding the transfer of personnel, finances and
assets as stipulated by the above-mentioned documents will be directly
transferred to, and shall be owned by, the Service Company. The
"Properties" shall be owned by the Service Company, and part of the
Properties shall be leased by the Service Company to Liaoning Mobile.
In order to clarify the ownership of the "Properties", the "Non-Mobile
Assets", the "Related Personnel", the "Non-Mobile Long-term Investments" and the
"Non-Mobile Liabilities", the three Parties 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:
"PROPERTIES" shall mean all the properties listed in Appendix I of the
Agreement - "List of Properties".
"NON-MOBILE ASSETS AND LIABILITIES" shall mean assets and liabilities
to be owned or assumed by China Mobile Group's Liaoning subsidiary
pursuant to documents regarding the transfer hereunder but not included
in the Asset Appraisal Report, with the Base Date being June 30, 2000,
prepared by Zhongzi Asset Appraisal Company Limited.
"RELATED PERSONNEL" shall mean the employees to be employed by the
Service Company other than the 3440 employees employed by Liaoning
Mobile.
"NON-MOBILE LONG-TERM INVESTMENTS" shall mean long-term investments to
be owned or assumed by China Mobile Group's Liaoning subsidiary
pursuant to documents regarding the transfer hereunder but not included
in the Asset Appraisal Report, with the Base Date of June 30, 2000,
prepared by Zhongzi Asset Appraisal Company Limited.
"EFFECTIVE DATE" shall mean the date on which the Agreement is
executed.
1.2 Unless the Agreement specifies otherwise, all the articles and
appendices referred to herein shall mean the articles and appendices of
the Agreement. All appendices constitute an integral part of the
Agreement.
ARTICLE TWO TRANSFER OF PERSONNEL, FINANCES AND ASSETS
2.1 China Mobile Group, Liaoning Mobile and the Service Company jointly
acknowledge that all the "Properties", the "Non-Mobile Assets", the
"Related Personnel", the "Non-Mobile Long-term Investments" and the
"Non-Mobile Liabilities" under this Agreement shall be transferred as
of the Effective Date
2
3
by China Mobile Group to, and owned, assumed or employed, as the case
may be, by the Service Company.
2.2 The Service Company will beneficially own the "Properties", the
"Non-Mobile Assets"", the "Related Personnel", the "Non-Mobile
Long-term Investments"" and the "Non-Mobile Liabilities" as of the
Effective
Date.
2.3 The Service Company shall complete the registration formalities in
respect of the title to the Properties and pay the related fees. The
Service Company hereby acknowledges that Liaoning Mobile will not bear
or pay any fees or costs in respect of such registration formalities or
any other matters in connection with the Properties to be transferred
to the Service Company hereunder.
ARTICLE THREE REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS
3.1 Each Party hereto warrants that it has all requisite authority, power
and ability to execute and perform the Agreement. Once the Agreement is
executed, it will constitute legal, valid and binding obligations to
each of China Mobile Group, Liaoning Mobile and the Service Company.
3.2 Each of China Mobile Group and the Service Company hereby represents
and warrants to Liaoning Mobile that, as of the Effective Date,
Liaoning Mobile will undertake no obligations, liabilities or expenses
arising from or in connection with the "Properties", the "Non-Mobile
Assets", the "Related Personnel", the "Non-Mobile Long-term
Investments" and/or the "Non-Mobile Liabilities" under the Agreement.
ARTICLE FOUR SETTLEMENT OF DISPUTES
4.1 Any dispute arising from or in connection with the interpretation or
performance of this Agreement shall be settled by the Parties through
friendly negotiations among the representatives appointed by the
Parties for this purpose. In the case that no resolution is reached
through consultations within 90 days after the occurrence of any
dispute, either Party may bring an action to a competent people's court
for its judgment.
ARTICLE FIVE NOTICE
5.1 Any notice to be given under the Agreement shall be made in writing and
sent by mail, telex, telegraph and facsimile to each Party's address
set out in the front page of the Agreement or to any other address as a
Party may designate in writing from time to time.
5.2 Any notice shall be deemed to have been received at the time as
follows:
if delivered in person, at the time of delivery;
3
4
if delivered by mail, on the date of the receipt;
if delivered by telex, at the time of taking back the receipt;
if transmitted by facsimile, upon delivery.
ARTICLE SIX GOVERNING LAW
6.1 The Agreement shall be governed by and interpreted in accordance with
the laws of the PRC.
ARTICLE SEVEN LANGUAGE
7.2 The Agreement is executed in Chinese.
ARTICLE EIGHT EFFECTIVE DATE
8.1 The Agreement shall come into effect upon the date when it is executed
by the authorized representatives of the Parties.
PARTY A: CHINA MOBILE COMMUNICATIONS CORPORATION
By: s/ Xue Taohai
------------------------------------
Authorized representative
PARTY B: LIAONING MOBILE COMMUNICATION COMPANY LIMITED
By: s/ Zhang Xuehong
------------------------------------
Authorized representative
PARTY C: LIAONING COMMUNICATION SERVICE COMPANY LIMITED
By: s/ Gong Xianbi
------------------------------------
Authorized representative
4
5
APPENDIX I
LIST OF PROPERTIES
Properties shall mean, in addition to the properties included in the
Asset Appraisal Report Regarding the Assets of Liaoning Mobile Communication
Company Limited, issued by Zhongzi Asset Appraisal Company Limited and with the
base date being June 30, 2000, those properties to be owned or occupied by China
Mobile Group's Liaoning subsidiary pursuant to documents regarding the transfer
hereunder.
