[Translation of Chinese original]
EXHIBIT 10.7
AMENDED AND RESTATED BUSINESS OPERATION AGREEMENT
This Amended and Restated Business Operation Agreement ("Agreement") is
entered into on the day of May 10, 2004 (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: YANG CHA
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 owning 10% equity in Party B; Party D
is a shareholder of Party B owning 42% equity in Party B; Party E is a
shareholder of Party B owning 3% equity in Party B and Party F is a
shareholder of Party B owning 45% equity of Party B.
Party A, Party B, Party C, Party D and Party E, through friendly negotiation in
the principle of equality and common interest, hereby jointly agree the
following to abide by:
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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, 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;
1.2 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, 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 together with its shareholders Party C, Party D, Party E and
Party F hereby jointly agree that 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.
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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.
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, 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 Party B as
shareholders of Party B 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 the business operation agreement
among Party A, Party B, Party C, Party D and Party E dated March 31,
2004.
4.2 Any amendment and supplement of this Agreement shall take effect only
after it
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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.
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: 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: Xxxx Xxxxxx
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PARTY B: BEIJING AIRINBOX INFORMATION 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: Xxxx Xxxxxx
PARTY C: XXXXXX XXXX
Address: 13 A, Xx. 0 Xxxxxxxx, Xxxx Xxxxx Xxxxx Xxxxxx, Xx Xxxx, Hai Xxxx
District, Beijing
Fax:
Tele:
Addressee: Xxxxxx Xxxx
PARTY D: XXXXXXX XXXX
Address: 13 A, Xx. 0 Xxxxxxxx, Xxxx Xxxxx Xxxxx Xxxxxx, Xx Xxxx, Hai Xxxx
District, Beijing
Fax:
Tele:
Addressee: Xxxxxxx Xxxx
PARTY E: XXXX XXXXX
Address: 13 A, Xx. 0 Xxxxxxxx, Xxxx Xxxxx Xxxxx Xxxxxx, Xx Xxxx, Hai Xxxx
District, Beijing
Fax:
Tele:
Addressee: Xxxx Xxxxx
PARTY E: YANG CHA
Address: 13 A, Xx. 0 Xxxxxxxx, Xxxx Xxxxx Xxxxx Xxxxxx, Xx Xxxx, Hai Xxxx
District, Beijing
Fax:
Tele:
Addressee: Yang Cha
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
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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.
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.
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PARTY A: KONGZHONG INFORMATION TECHNOLOGIES (BEIJING) CO., LTD.
Authorized Representative: /s/ Xxxx Xxxx
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PARTY B: BEIJING AIRINBOX INFORMATION TECHNOLOGIES CO., LTD.
Authorized Representative: /s/ Xxxxxx Xxxx
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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: YANG CHA
Signature: /s/ Yang Cha
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