Exhibit 4.19
[English Translation]
Telecommunications Services Cooperation Agreement
Between
China Mobile Limited
and
China Mobile Communications Corporation
This Agreement is entered into by and between the following parties on November 6, 2009:
(1) | China Mobile Limited,a limited liability company duly incorporated and validly existing in accordance with the Hong Kong laws with its legal address at 60/F., The Center, 99 Queen’s Road Central, Hong Kong (hereinafter referred to as “Party A”); and |
(2) | China Mobile Communications Corporation (CMCC), a state-owned enterprise duly incorporated and validly existing in accordance with the laws of the People’s Republic of China (hereinafter as “China”) with its registered office at 29 Jinrong Avenue, Xicheng District, Beijing, China (hereinafter referred to as “Party B”). |
Party AandParty B are respectively referred to as a “Party”, and collectively as the “Parties”
Whereas:
(A) | Party A is a company listed in the Stock Exchange of Hong Kong Limited (“HKEx”) and the New York Stock Exchange (“NYSE”). |
(B) | According to theAnnouncement relating to the Further Reform of the Telecommunications Industry issued jointly by the Ministry of Industry and Information Industry, the National Development and Reform Commission and the Ministry of Finance of China on May 24, 2008,Tietong became a wholly-owned subsidiary ofParty B; |
(C) | Tietong is a fixed-line telecommunications operator in China; |
(D) | To cope with the new competitive environment after the restructuring of telecommunications industry, to further improve the synergies between Party A and its subsidiaries andTietongand its subsidiaries, and to achieve integrated development of mobile services and fixed-line services, Party A and its subsidiaries shall cooperate in telecommunications services development withTietongand its subsidiaries, including but not limited to integrated voice VPN, wired broadband access, wireless voice service and other basic telecommunications businesses. |
(E) | To achieve integrated development of mobile services and fixed-line services and cooperate in telecommunications services development, the Parties and their respective subsidiaries need to provide relevant supporting services to each other in their daily operations. |
(F) | TheParties hereby agree to enter into thisAgreement to set forth the basis for the continuous connected transactions between thePartiesand their respective subsidiaries. |
2
THEREFORE, with negotiation, thePartieshave concluded the following agreements on the basis of equality and mutual benefits:
1. | Definitions |
Except otherwise defined or required by the context, the terms in bold in thisAgreement shall have the following meanings:
“Services” means services provided in accordance with Article 2 of this Agreement;
“Service Receiver” means theparty and its subsidiaries receivingservices provided by theService Provider;
“Market Price” means the price determined independently by the operator in a competitive market.Market Price is determined in the following order: (1) the price then charged by an independent third party providing theservicesunder normal trading circumstances in a place where theServicesare provided or nearby; or (2) the price then charged by an independent party providing theServicesunder normal trading circumstances within the territory ofChina.
“Service Provider” means theParty and its subsidiaries providingServices to theService Receiver;
“Government Fixed Price” is the price determined by the national industrial and price authorities according to their pricing authorization and scope;
“Government Guidance Price” is the price determined by operators in accordance with the benchmark price and floating rate issued by the national industrial and price authorities or other related authorities according to their pricing authorization and scope;
“China” means the People’s Republic of China and for the purpose of thisAgreement, it does not include Hong Kong, Macau and Taiwan;
“Subsidiaries” means the respective branches and subsidiaries (whether or not wholly-owned) ofParty A orParty B;
“Tietong” means China Tietong Telecommunications Corporation, a wholly-owned subsidiary ofParty B;
“Hong Kong” means Hong Kong Special Administration Region of the People’s Republic of China; and “theHong Kong Listing Rules” means the Rules Governing The Listing Of Securities On The Stock Exchange Of Hong Kong Limited.
3
1 | Provision and Receipt of Services |
1.1 | Party Aagrees to cause itsSubsidiaries, asService Provider, to provide relatedservices to theSubsidiaries ofParty B in accordance with the terms and conditions of thisAgreement, whileParty B agrees to cause its specifiedSubsidiaries, as Service Receiver, to receive suchServicesin accordance with the terms and conditions of thisAgreement. Meanwhile,Party B agrees to cause itsSubsidiaries, asService Provider, to provide related services to theSubsidiaries ofParty Ain accordance with the terms and conditions of thisAgreementandParty A agrees to cause its specifiedSubsidiaries, asService Provider, to receive suchServices in accordance with the terms and conditions of thisAgreement. The provision and receipt of suchServices are non-exclusive. |
1.2 | All the responsibilities, liabilities and interests arising from or in connection with the performance of thisAgreement according to the terms and conditions of thisAgreementshall be borne byParty Aand itsSubsidiariesandParty Band itsSubsidiariesrespectively asService Receiver andService Provider. |
2 | Description of Telecommunications Services |
In accordance with this Agreement,Services provided byService Providershall include:
2.1 | Agency Services |
With the commission ofService Receiver,Service Providershall provide customer development services to customers (including companies, government institutions, social entities and individual residents) in the name of the licensed operator of Service Receiver by utilizing its existing sales channels and resources, such as sales outlets, Internet sales network, sales personnel and local sales units, and suchServices shall include:
2.1.1 | sales services of various telecommunications products within the business scope ofService Provider by using the business models and images ofService Receiver, including but not limited to SIM cards, customized handsets, internet access card, netbooks, recharge cards and various value-added mobile services; |
2.1.2 | tariff collection services from customers on behalf ofService Receiverby using the customer bill data and relevant bill format provided byService Provider; and |
2.1.3 | distribution, installation, maintenance and other customer services of telecommunications products specified by Service Receiver within the commission scope of, and with the service standard required by,Service Receiver. |
4
2.2 | Cooperation |
2.2.1 | Basic Telecommunications Services |
(i) | Service ProviderandService Receivershall cooperate in the provision of basic telecommunications services by integrating and bundling its telecommunications products and services ofService Provider andService Receiver and providing necessary numbering and licenses resources support to the other party, so as to offer a complete telecommunications solution to its customers and enlarge the market share of the Parties. To achieve the goal of integrating and bundling its telecommunications products and services,Service Providershall combine its products and services with those ofService Receiver, and allowService Receiver to provide such products and services to its customers. |
(ii) | Basic telecommunications services include but not limited to fixed-line local phone services, fixed-line domestic long-distance phone services, fixed-line IDD phone services, IP phone-phone call services, domestic telecommunication devices services, 900/1800MHz 2G GSM mobile telecommunications services, 3G TD-SCDMA mobile telecommunications services, satellite IPLC services, internet data transmission services, international data services, public telegraph and telex services, internet access services. |
2.2.2 | Value-added Telecommunications Services |
(i) | Service ProviderandService Receiver shall cooperate in the provision of value-added telecommunications services by integrating and bundling its value-added telecommunications products and services ofService Provider andService Receiver and providing necessary numbering and licenses resources support to the other party, so as to offer a complete value-added telecommunications solution to its customers and enlarge the market share of theParties. To achieve the goal of integrating and bundling its value-added telecommunications products and services,Service Provider shall combine its value-added products and services with those ofService Receiver, and allowService Receiver to provide such value-added products and services to its customers. |
(ii) | Value-added telecommunications services include but not limited to wireless paging services, fixed-line domestic data transmission services, CNP services, network hosting services, internet data center services, voice mailbox services, fax storage and forwarding services, call center services, internet access services, fixed-line and internet information services. |
3 | Pricing Principles |
3.1 | In accordance with Article 2.1 of thisAgreement, the service fees for agency services provided byService Provider toService Receiver shall be determined with reference to market prices after taking into consideration the actual volume and performance indicators, such as total sales being recognized and number of customers developed byService Provider. |
5
3.2 | In accordance with Article 2.2 of thisAgreement, the pricing and/or fees for theServices provided by Service ProvidertoService Receiver shall be determined with reference to the following pricing principles after taking into account the actual volume of services provided, number of customers developed, the resources and investment contributed byService Provider, their relevant qualifications, etc.: the Government Fixed Priceif it exists; where there is noGovernment Fixed Price, but aGovernment Guidance Price exists, theGovernment Guidance Price; where there is neither aGovernment Fixed Price nor aGovernment Guidance Price, the market price; or where none of the above is applicable, the price to be agreed between theParties and determined on a reasonable cost-plus basis. The reasonable cost means the cost determined by thePartiesthrough discussions. |
4 | Service Standard |
4.1 | Quality of theServices provided byService Provider toService Receiver shall not be less than the national standards and requirements, including but not limited to those service quality standards set out in theTelecommunications Regulations of China (No. 291 Decree of the State Council),Telecommunications Service Specification (No. 39 Decree of the Ministry of Information Industry). If the government promulgates any new laws or regulations and service quality standards during the term of thisAgreement, such laws and regulations and service quality standards shall apply from the date they come into effect. |
4.2 | Service conditions and standards provided byService Provider toService Receiver shall not be less than those of the same or similar services provided byService Provider to any third party. |
5 | Basic Principles |
5.1 | Service Receiver shall pay service fees forServices received fromService Provider in accordance with the pricing principles and fee rates set out in thisAgreement, supplementary agreements hereof (if any), its implementation details and specific implementation documents. |
5.2 | With regard to the sameServices, if the conditions and quality of theServices provided by the other party is at least at the same level as those of theServices provided by an independent third party, anyParty to this Agreement shall give priority to use theServices provided by the otherParty. However, the provision and reception of suchServices is non-exclusive. |
5.3 | If, not due to its own fault,Service Provider is not able to provide or fully provide theServices under thisAgreement,Service Provider shall promptly give notice toService Receiver, and shall make its best efforts to assistService Receiver to obtain the same or similar services from other sources. |
6
5.4 | Without violating the prohibitive provisions of the laws and regulations of China and with the prior consent ofService Receiver,Service Providermay appoint a third party other than its ownSubsidiaries or affiliates to provide certainServices under thisAgreement toService Receiver. However,Service Provider shall ensure that such third party shall have the statutory qualification required by the state, and the conditions and quality ofServices provided by such third party shall not be less favorable than those committed byService Provider. Moreover, all the obligations and interests ofServices provided by such third party shall be ultimately borne and enjoyed byService Provider. Any additional expenses for appointing such third party shall be borne byService Provider. |
5.5 | Unless otherwise stated in Article 8 hereunder, during the term of thisAgreement, anyPartywho violates thisAgreementand causes damages to the otherParty shall bear the responsibility and compensate the otherParty for any direct economic losses caused. |
5.6 | When anyParty performs its obligations hereunder, the otherParty shall provide reasonable and necessary assistance. For this purpose,Service Receiver shall provideService Providerin a timely fashion with required service standard, business models and image requirements, customer bill data and related bill format, detailed information about its telecommunications and value-added products and services. |
5.7 | In order to allowService Provider to provideServices in accordance with thisAgreement, provided that thisAgreement and its appendices are complied,Subsidiaries ofParty A andParty B may set forth the implementation details for the provision of certainServices within the scope of authorization granted by Party A andParty B respectively in order to agree on the contents, standards, scope, methods, fees and any other specific requirements. However, the contents of such implementation details shall not exceed the scope of thisAgreementand its appendices and shall not conflict with this Agreement. |
5.8 | Except otherwise provided in the implementation details executed betweenParty A andParty B or their respectiveSubsidiaries for certain specificServices, the provision of telecommunications or value-added products and services under thisAgreement shall follow the principle ofService Provider taking ultimate responsibilities, wherebyService Provider shall be responsible for the maintenance of such products and services and all other obligations related to such products and services. |
6 | Representations, Warranties and Undertakings |
6.1 | EachParty represents and warrants to the otherParty that thisAgreement is valid and equally binding on both parties. |
6.2 | EachPartywarrants to the otherPartythat its relevant subsidiaries to provideServices possess all the qualifications and licenses required by the relevant governmental regulatory authorities to provide theServiceshereunder, and that the said qualifications and licenses are all valid during the term of thisAgreement. |
7
6.3 | EachPartywarrants to the otherPartyand ensures that the employees of its relevant subsidiaries are prepared to receive and provide sufficient instructions and explanations relating to theServices under thisAgreement, such that theservices can meet the standards required. |
6.4 | EachPartywarrants to the otherPartythat it has obtained all necessary approvals or other governmental permits (if there are any mandatory requirements) for itsServices to be provided. |
6.5 | EachParty warrants to the otherParty that its relevant subsidiaries will, in accordance with the provisions of thisAgreement, accept theServices provided by the otherParty, provide all necessary assistance and pay various charges, and that no harm will be caused to the otherParty or theServiceProvider by their acts or omissions of acts. |
6.6 | EachPartywarrants to the otherPartythat any third party retained to provide theservices hereunder possess all the statutory qualifications required by the relevant governmental regulatory authorities, and that the conditions and standards of theServices provided by such third party shall not be less favorable than those committed byService Provider, and that all obligations and interests ofServices provided by such third party shall be ultimately borne and enjoyed byService Provider. |
7 | Term of the Agreement |
ThisAgreementshall come into effect on the date on which the legal representatives or authorized representatives of thePartiesexecute thisAgreement and expire on December 31, 2010. Upon the expiry of thisAgreement, if bothPartiesso agree and in compliance with the Hong Kong Listing Rules, thisAgreementshall be renewed automatically for another year with no limitation on the number of renewals.
8 | Force Majeure |
If, due to a force majeure event, the occurrence of which is unpredictable and the consequences of which are unavoidable and insurmountable, eitherPartyor its subsidiaries are prevented from performing thisAgreementin accordance with the agreed provisions, the affectedPartyshall immediately give notice to the otherParty, and shall, within fifteen (15) days, provide the relevant detailed information and valid documents of proof evidencing the grounds for non-performance, partial performance, or withheld performance of the relevant obligations under thisAgreement. Depending upon the extent to which the performance may be affected by the force majeure event, bothPartiesshall discuss and agree whether or not to terminate, partially excuse, or delay the performance of the obligations concerned. However, neither party to thisAgreement shall be held liable for any damages caused by the force majeure.
9 | Non-disclosure |
Unless otherwise required by the relevant laws, listing rules or regulatory authorities, neitherParty(including but not limited to its relevant subsidiaries) shall announce or disclose or provide to any third party any information concerning the contents of thisAgreement or relating to the business of the otherParty, unless the prior written consent of the otherPartyhas been obtained (and such consent shall not be unreasonably refused or withheld).
8
10 | Assignment |
Except for the cases stated in Article 5.4 hereof, without the prior written consent of the otherParty, neitherPartymay assign or delegate to any third party any or all of the right(s) or obligation(s) accruing to it or theService Providers or theService Receivers under thisAgreement.
11 | No Waiver |
Unless otherwise provided by the laws, any failure to exercise or delay in exercising any right, power or privilege to which aPartyis entitled under thisAgreement shall not be construed as a waiver of such right, power or privilege, and any partial exercise of such right, power, or privilege shall not prejudice the future exercise of such right, power or privilege.
12 | Notice |
Any notice related to thisAgreement shall be made in writing and delivered in person, or by facsimile or post. Any notice shall be deemed as delivered at the time of delivery, if delivered in person; or at the time when the facsimile machine indicates successful submission, if delivered by facsimile; or on the fifth working day (not accounting any statutory holidays) after it has been posted, if delivered by post. Any notice is effective upon delivery.
13 | Governing Law and Dispute Settlement |
13.1 | ThisAgreement shall be governed by, and interpreted and enforced in accordance with the laws of China. |
13.2 | Any dispute between thePartiesrelative to the validity, interpretation or performance of thisAgreement shall be settled through amicable consultation. Should thePartiesfail to resolve the dispute within 30 days from the date of the occurrence of the dispute, then such dispute shall be submitted to China International Economy and Trade Arbitration Commission for arbitration in Beijing in accordance with the then effective arbitration rules of that Commission. The arbitration award shall be final and binding on bothParties. Except for the matter of dispute that is submitted for arbitration, all the remaining parts of this Agreement shall remain valid and effective during the arbitration. |
14 | Effectiveness of this Agreement and Miscellaneous |
14.1 | ThisAgreementshall be effective upon due execution by the legal persons or their authorized representatives of bothPartiesand the affixation of their official seals. |
14.2 | ThisAgreementcan be executed separately by counterparts. The duly executed counterparts shall constitute a valid agreement. If theAgreement is executed by counterparts, it shall be construed as duly executed after the bothPartieshave successfully transmitted their signed counterparts to each other by facsimile. |
9
14.3 | Provided thatParty A complies and meets the regulatory requirements on connected transaction of the Hong Kong Listing Rules, following discussion and agreement by bothParties, thisAgreement and its appendices may be amended or supplemented by bothParties, and any amendment or supplement shall take effect after execution by the legal persons or authorized representatives of bothPartiesand after the affixation of the official seals. |
14.4 | ThisAgreement is severable. If any provision of thisAgreement is determined to be invalid, unlawful or unenforceable, the validity and enforcement of any other provisions shall not be affected. |
14.5 | ThisAgreement is written in Chinese and executed in five (5) original counterparts, two of which shall be retained byParty A and the rest three copies shall be retained byParty B. Each original counterpart has equal legal validity. |
China Mobile Limited
Legal Person or
authorized representative (signature): /s/ LUO Jianping
China Mobile Communication Corporation
Legal Person or
authorized representative (signature): /s/ MENG Fanguang
November 6, 2009
10