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EXHIBIT 10.45
AGREEMENT ON THE CONFIRMATION OF THE TRANSFER OF PERSONNEL, FINANCES AND ASSETS
AND THE RELATED RIGHTS AND OBLIGATIONS
This Agreement on the Confirmation of the Transfer of Personnel,
Finances and Assets and the Related Rights and Obligations (the "Agreement") is
executed by the following two parties on August 30, 2000 in Guangxi:
(1) GUANGXI MOBILE COMMUNICATION COMPANY LIMITED, a limited liability
company duly established and existing under the laws of People's
Republic of China ("PRC"), with its legal address at 92, Min Zu Da Dao,
Nanning, PRC ("Guangxi Mobile") ; and
(2) GUANGXI COMMUNICATION SERVICE COMPANY, a limited liability company duly
established and existing under the laws of PRC, with its legal address
at 249, Wang Zhou Lu, Nanning, PRC ("the Service Company").
WHEREAS:
1. Guangxi Mobile and the Service Company entered into the Capital
Contribution Agreement ( "Agreement One" ) with China Mobile Group on
August 30, 2000.
2. Guangxi Mobile and the Service Company entered into the Agreement
Regarding the Transfer of Personnel, Finances and Assets Not Directly
Related to Mobile Communications Services ( "Agreement Two" ) with
China Mobile Group on August 30, 2000.
In order to confirm the ownership of the interests, assets,
liabilities, personnel and businesses under Agreement One and Agreement Two, the
Parties have reached the following agreement:
1. Each Party hereby confirms to the other Party that all the Related
Interests and Assets, Related Liabilities, Related Personnel and
Related Services under Agreement One shall be owned or assumed by
Guangxi Mobile; accordingly, the Service Company enjoys no rights,
undertakes no liability and bears no expense with regard to the same
(unless otherwise agreed upon in this Agreement).
2. Each Party hereby confirms to the other Party that all the Properties,
Non-Mobile Assets, the Related Personnel, the Non-Mobile Long-term
Investments and the Non-Mobile Liabilities under Agreement Two shall be
owned or assumed by the Service Company; accordingly, Guangxi Mobile
enjoys no right, undertakes no liability and bears no expense with
regard to the same.
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3. Each Party hereby confirms to the other Party that all the contracts in
relation to the Related Interests and Assets, the Related Liabilities,
the Related Personnel and the Related Services under Agreement One
shall be transferred to Guangxi Mobile. However, due to the time limit
and the enormous amount involved, the transfer of certain contracts may
have not been approved by the other party/parties thereto (the
"Non-Transferred Contracts"). For such Non-Transferred Contracts, the
Parties hereby agree and confirm as follows:
(1) As of the Effective Date (as defined in Agreement One), the
rights and liabilities, as well as the gains and losses of the
Service Company generated from the Non-Transferred Contracts
shall be owned or assumed by Guangxi Mobile (unless otherwise
stipulated in this Agreement ), notwithstanding the fact that
such Non-Transferred Contracts are still held by and performed
in the name of the Service Company. The Service Company agrees
to act as the trustee of Guangxi Mobile to receive or hold any
interests generated from the Non-Transferred Contracts
(including but not limited to certain goods and loans) on
behalf of Guangxi Mobile, and that such interests are owned by
Guangxi Mobile. Upon demand, the Service Company shall deliver
such interests to Guangxi Mobile;
(2) The Service Company shall exercise or perform the rights and
liabilities under the Non-Transferred Contracts strictly in
accordance with the instructions given by Guangxi Mobile from
time to time, and shall not amend any terms of the
Non-Transferred Contracts or terminate the same without
Guangxi Mobile's prior written consent thereto;
(3) The reasonable expenses incurred by the Service Company for
the purpose of performing the obligations under paragraph 3(1)
above shall be reimbursed by Guangxi Mobile, except expenses
incurred as a result of negligence or fault on the part of, or
other reasons caused by, the Service Company;
(4) If, as a result of the Service Company's negligence, fault or
other reasons caused by the Service Company in connection with
its holding or performing the Non-Transferred Contracts in its
name and on behalf of Guangxi Mobile under this Agreement,
Guangxi Mobile sustains any losses therefrom (including but
not limited to legal action expenses and damages ), the
Service Company shall sufficiently compensate Guangxi Mobile
for such losses in a timely manner; and
(5) If there arises such a need that the rights of Guangxi Mobile
under the Non-Transferred Contracts (including the rights to
initiate legal proceedings or arbitration, or to take other
necessary actions) be exercised by the Service Company in its
name, the Service Company shall assist Guangxi Mobile by
exercising such rights in the Service Company's name.
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4. The Agreement shall be governed by and interpreted in accordance with
the laws of PRC.
5. The Agreement shall be executed in Chinese.
6. The Agreement shall come into effect upon the execution by the
authorized representative of the Parties.
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GUANGXI MOBILE COMMUNICATION COMPANY LIMITED
By: s/ Gan Yuecai
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Authorized representative
GUANGXI COMMUNICATION SERVICE COMPANY
By: s/ Gu Xiong
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Authorized representative
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