EXHIBIT 10.45
SERVICE AGREEMENT
THIS SERVICE AGREEMENT (this "AGREEMENT") is made and entered into on 16 Jan,
2002, by and between:
LINKTONE LTD., a company established and registered in the Cayman Islands, with
its registered address at Cayman Islands, British West Indies (hereinafter
referred to as the "COMPANY"); and
MR. XX XXXX, a citizen of the People's Republic of China, whose domicile is at
Xx.00, Xxxx 000, Xxxxxxxxxxxx Xxxx, Xxxxxxxx and whose personal ID number is
000000000000000000 (hereinafter referred to as the "XX XXXX")
NOW, THEREFORE, THE PARTIES AGREE AS FOLLOWS:
1. DEFINITIONS AND INTERPRETATION
1.1 DEFINITION OF TERMS
In this Agreement, unless the context otherwise provided, the following
terms shall be interpreted as follows:
(A) "GROUP COMPANY": means both the Company and its
subsidiaries which are existing
currently or will exist from time to
time in the future (no matter
whether the Company is a holding
company or not);
(B) "EFFECTIVE DATE": means 16 Jan, 2002;
(C) "BOARD OF DIRECTORS": means either the Company's board of
Directors or the Directors who
attend the board meeting and satisfy
the quorum, but excluding the
administrative staff (as the case
may be);
(D) "SHANGHAI WEILAN": means Shanghai Weilan Computer Co.,
Ltd., a limited liability company
registered in Shanghai, the PRC,
with its registered capital of
RMB500,000. Xx Xxxx is the
supervisor of Shanghai Weilan and
holds 40% of the equity interest
therein. Presently, for purposes of
business operations, Shanghai Weilan
is proposed to become a limited
liability company with an increased
registered capital of RMB5,000,000,
and Xx Xxxx will hold 50% of the
equity interest in Shanghai Weilan;
(E) "PRC": means the People's Republic of
China. and
(F) "RMB": means the lawful currency of the
PRC.
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(G) "LOAN AGREEMENT": means the loan agreement entered
into by and between Xx Xxxx and
Shanghai Huitong Information Co.
Ltd. on 16 Jan, 2002.
(H) "SHANGHAI HUITONG a company established and registered
INFORMATION CO. in the People's Republic of China,
LTD.": invested by the Company (97%) and
Shanghai Weilan (3%), with its
address at Xx.00, Xxxxxxx Xxxx,
Xxxxxxx Xxxxxxxx, Xxxxxxxx.
1.2 INTERPRETATION OF CERTAIN REFERENCES
(A) Unless the context otherwise provided, in this Agreement, the
references to:
(1) "People" shall include any individual, company, legal
person, corporate name, partnership, joint venture,
association, organization or trust (whether or not
having separate legal personality), and the reference
to any of the above items shall include other items
as mentioned above;
(2) words imparting the singular shall include the plural
and vice versa;
(3) clauses are to the clauses of this Agreement;
(B) As for the purpose of this Agreement, a company will be deemed
as the subsidiary of another company if the latter:
(a) controls the constitution of the former's board
members; or
(b) controls over fifty percent (50%) of the former's
voting powers; or
(c) holds over fifty percent (50%) of the former's
registered capital or issued shares;
The term of "Subsidiary" shall be interpreted accordingly.
1.3 HEADINGS OF CLAUSES
The headings contained herein are for the convenience of reference
only, and shall not in any way affect the meaning or interpretation of
this Agreement.
2. EFFECTIVE DATE
This Agreement shall come into effect on the Effective Date, and any
valid agreements (whether made orally or in writing) made prior to the
Effective Date by and between Xx Xxxx and the Company or any of its
subsidiaries concerning the appointment of Xx Xxxx shall all be
substituted by this Agreement and such agreements shall be terminated
and invalidated on the Effective Date.
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3. CONDITIONS OF DIRECTORSHIP
3.1 The Company hereby agrees that Xx Xxxx, and Xx Xxxx hereby consents to
be as director of Shanghai Weilan in accordance with and subject to the
terms and conditions as set out herein.
3.2 Without prejudice to Clause 8 herein, the term of such directorship
shall be three (3) years as regulated by the Articles of Association of
Shanghai Weilan.
3.3 Company hereby employs Xx Xxxx as its employee, and Xx Xxxx agrees to
accept such offer.
3.4 Xx Xxxx hereby agrees if Shanghai Weilan expects to appoint other new
director, Shanghai Weilan shall obtain the written consent of Company
in advance.
4. RESPONSIBILITIES AND POWERS
4.1 During the term of directorship of Shanghai Weilan herein, Xx Xxxx
shall be fully dedicated to his responsibilities on full-time basis and
shall make his best endeavors to enhance the general benefit and
welfare of the Shanghai Weilan.
4.2 Xx Xxxx shall at any time promptly provide the Board of Directors with
the documents, explanation and assistance concerning the business of
Shanghai Weilan and Shanghai Huitong Information Co. Ltd or any other
Group Company (if applicable, as director) (or provide such documents,
explanation and assistance in writing as required by the Board of
Directors) pursuant to the requirement of the Board of Directors.
4.3 Xx Xxxx shall exercise the powers vested, or perform the duties
granted, or act in accordance with the instructions given, by the Board
of Directors from time to time (provided that such instructions shall
comply with the Conditions of Appointment as contemplated hereunder).
When Xx Xxxx performs his responsibilities hereunder (provided such
responsibilities shall comply with the Conditions of Appointment as
contemplated hereunder), he may be required to serve not only the
Company but also the Group Company, if necessary.
4.4 Xx Xxxx shall comply with the PRC laws and regulations and the articles
of association of Shanghai Weilan, and shall act according to his
rights and obligations as director of Shanghai Weilan.
5. POSITION OF DIRECTOR
5.1 When Xx Xxxx accepts the directorship of Shanghai Weilan hereunder, if
necessary, he shall also accept the appointment by the Company as
director of certain other Group Company. When he is so appointed, if
the Company requires, Xx Xxxx shall also resign from the position of
directorship of Group Company without consideration therefore. However,
such resignation shall not affect the effectiveness of this Agreement.
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5.2 Once the directorship of Xx Xxxx is terminated for whatever reason,
upon the request of the Board of Directors, Xx Xxxx shall resign from
the position of Shanghai Weilan or other Group Company without
consideration therefore and shall also resign from any other position
and the fiduciary duty.
6. REWARDS
The Company shall pay or compensate Xx Xxxx for all reasonable expenses
to be paid or already paid by Xx Xxxx during the performance of his
duties hereunder against relevant payment evidence to the Company by Xx
Xxxx first upon the reasonable request of the Company.
7. COMPENSATION
The Company hereby agrees to compensate the Xx Xxxx for the loss and
impairment caused by his performance of his duties as the director of
Shanghai Weilan, except for the following situations:
(1) Xx Xxxx is in material default of his duty by intentional
misconduct or gross negligence; or
(2) Xx Xxxx is found to be negligent for his duties in litigation
or other legal proceedings in which he is involved.
8. TERMINATION OF DIRECTORSHIP
8.1 Without prejudice to the accumulative rights (if any) or compensation
which the parties enjoy hereunder, except where Xx Xxxx:
(1) ceases to act as the supervisor of Shanghai Weilan (including
but not limited to resignation or abdication) without the
approval of the Board of Directors; or
(2) is significantly, repeatedly or continuously in breach of his
duties hereunder, or
(3) has material malfeasance or material malpractice in the
performance of his duties hereunder; or
(4) is adjudicated for crimes or involved in relation with any
crime, unless the Board of Directors (considering the nature
of the duty to be performed and the qualification of the
appointment) reasonably think that such crime do not affect
his status as the employee of the Company; or
(5) has impacted the reputation or the business interest of the
Company or any Group Company by his action or inaction; or
(6) has suffered from mental disorder or has become a mental
patient as defined by any regulation in respect of mental
health; or
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(7) is forbidden to act as director by any laws or regulations; or
(8) is dismissed from the position, or is not consecutively
appointed (if Xx Xxxx shall resign in turn in accordance with
the articles of association or other arrangement of Shanghai
Weilan at that time), as a director of Shanghai Weilan,
Xx Xxxx shall resign the directorship of Shanghai Weilan automatically.
8.2 Xx Xxxx hereby irrevocably agrees that, in the event (a) where he
resigns the directorship of Shanghai Weilan in accordance with Clause
8.1; (b) this Agreement is terminated for any reason including the
reasons stipulated in Clause 9, or (c) any of the events stipulated in
Clause 3 of the Share Transfer Agreement between Xx Xxxx and the
Company occurs, he shall transfer the 50% of the equity interest that
he holds in Shanghai Weilan to the person designated by the Company
without consideration and that he shall assist in going through all
procedures to make such designated person the supervisor of Shanghai
Weilan (including but not limited to the amendment of the business
license and relevant company records).
8.3 Clause 10.1 shall remain in complete effect after Xx Xxxx resigns the
directorship of Shanghai Weilan (for whatever reason).
8.4 Without prejudice to Clause 8.1(3), in the event where Xx Xxxx is
involved in crimes and, as a result of which, is not able to normally
perform his duty as director, the Company and Shanghai Weilan shall be
entitled to suspend his position as a director until he can continue to
perform his duties effectively.
8.5 If Shanghai Huitong Information Co. Ltd. terminates the Loan Agreement
in accordance with Clause 8.1 to 8.6 thereof, the Company shall be
entitled to ask Xx Xxxx to resign the directorship of Shanghai Weilan
at any time.
9. TERMINATION OF THIS AGREEMENT FOR MERGER OR REORGANISATION OF THE
COMPANY
In the event where Xx Xxxx resigns the directorship of Shanghai Weilan
due to liquidation of Shanghai Weilan for the purpose of merger or
reorganization or Shanghai Weilan in merger or reorganization
arrangement without liquidation of the Company, and, as a result of
which, Xx Xxxx is employed by any company with terms and conditions
more favorable for him than those contained herein, Xx Xxxx shall not
claim for compensation for the termination of his directorship of
Shanghai Weilan.
10. LIMITATION TO XX XXXX
10.1 Xx Xxxx hereby warrants to the Company that he will not:
(A) during the term of his directorship or one year after the
termination of his directorship, solicit the clients or agents
of Shanghai Weilan, the Company or any other Group Company
during the term of the directorship either for himself or for
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any other Person, as long as Xx Xxxx has been a director of
such other Group Company within one year before the
termination of the directorship; or
(B) during the term of his directorship or within one year after
the termination of his directorship, encourage any employee,
worker, manager or director of Shanghai Weilan, the Company or
any other Group Company to resign the office either for the
interest of himself or for any other Person, no matter whether
the employment agreement between such Person and the relevant
company is breached by such resignation.
10.2 Subject to Clause 10.1, during the term of his directorship or within
one year after the termination of his directorship, Xx Xxxx shall not
(unless agreed by the Board of Directors in writing) directly or
indirectly conduct any other business which competes against the
business of the group or have any beneficial relationship in such
business, unless the following conditions are met:
(A) Xx Xxxx has been conducting such business prior to the
commencement of the same by any Group Company; or
(B) Xx Xxxx is appointed to any important position of any business
during the term of his directorship hereunder, and such
position does not conflict with the group's benefit or his
responsibility for the Group Company, and is approved by the
majority of the Board of Directors; or
(C) Xx Xxxx holds (directly or through agent) shares in any
investment project listing on any security exchange market,
however, without the prior permit by the Board of Directors,
the shares or other securities of any kind of any companies
held by Xx Xxxx shall not exceed 2% of the issued ones.
11. DEFAULT LIABILITIES
If Xx Xxxx is in violation of the clauses hereunder and such violation
is not corrected (such correction shall be satisfactory to the Company)
within the prescribed period after his receipt of a written notice from
the Company, then such violation shall be deemed as the breach of this
Agreement by Xx Xxxx, and the Company shall be entitled to require Xx
Xxxx to, and Xx Xxxx shall, upon the Company's requirement, be obliged
to transfer 100% of the shares he holds in Shanghai Weilan to a
designated person without consideration therefore.
12. NOTICE
When one party hereof sends a notice to the other party, such party can
deliver such notice by mails with correct address (if the receiver is
the Company, the address shall be the company address at that time as
mentioned above, while if the receiver is the Xx Xxxx, the address
shall be his latest address known by the Company). If the notice is
sent by mail, the delivery of the notice shall be deemed as completed
upon presumed completion of common post procedures. If the notice is
sent by hand, the delivery of the notice shall be deemed as completed
upon physical delivery of such notice. Once it can
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be evidenced that the notice has been sent out by mail with correct
address according to relevant provisions, it shall be sufficient to
evidence that the notice has been delivered.
13. NON-TRANSFERABILITY
Neither this Agreement nor the position of the Xx Xxxx shall be
transferred.
14. GOVERNING LAW
The execution, interpretation, performance, dispute resolution and any
other issues relating to this Agreement shall be governed by and
interpreted in accordance with the laws of Hong Kong SAR.
15. LANGUAGE AND TEXT
This Agreement is made in Chinese and English. If there is any
inconsistency between Chinese version and English version, the English
version shall prevail. This agreement shall be signed in two (2)
originals, one (1) of which shall be kept by the Company and the other
one (1) of which shall be kept by the Director.
16. CONSISTENCY
16.1 It is the intention of the Company and Xx Xxxx that the Service
Agreement dated 1st day of September, 2000 and the Supplementary
Agreement dated 7th day of December, 2000 shall be terminated and this
Agreement shall prevail instead.
16.2 In the event of an inconsistency arising between the provisions of the
aforesaid Service Agreement and Supplementary Agreement, the provisions
of this Agreement shall prevail.
17. MISCELLANEOUS
17.1 This Agreement may be signed in any number of counterparts, all of
which taken together shall constitute one and the same instrument. Any
party may enter into this Agreement by signing any such counterpart and
each counterpart may be signed and executed by the parties and
transmitted by facsimile transmission and shall be as valid and
effectual as if executed as an original.
17.2 This agreement shall be signed in two (2) originals, one (1) of which
shall be kept by the Company and the other one (1) of which shall be
kept by Xx Xxxx.
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IN WITNESS WHEREOF, the parties hereof have executed this Agreement as of the
date first above written.
LINKTONE LTD.
Signature of Authorized Representative: /s/ Wu Jun
---------------------
Name: Wu Jun
Position: Chairman of the board
Signature & Name of Witness:
XX XXXX
Signatures: /s/ Xx Xxxx
-------------------------
Signature & Name of Witness.
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