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EXHIBIT 10.5
SUPPLEMENTAL AGREEMENT
TO
SPECTRUM/NUMBER RESOURCES USE AGREEMENT
TRADEMARK LICENSE CONTRACT
INTER-PROVINCIAL LONG DISTANCE TRANSMISSION LINES FEE
SHARING AGREEMENT
AND
INTER-PROVINCIAL INTERCONNECTION AND DOMESTIC AND
INTERNATIONAL ROAMING SETTLEMENT AGREEMENT
DATED AS OF SEPTEMBER 19, 2000
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SUPPLEMENTAL AGREEMENT
This Agreement is executed by the following Parties on September 19,
2000 in Beijing:
CHINA MOBILE COMMUNICATIONS CORPORATION, a wholly state-owned
corporate entity duly established and existing under the laws of the People's
Republic of China, with its legal address at 53 A, Xibianmen Nei Da Jie, Xuanwu
District, Beijing, PRC ("Party A");
CHINA MOBILE (HONG KONG) LIMITED, a limited liability company duly
established and existing under the laws of Hong Kong, with its legal address at
60th Floor, The Center, 99 Queen's Road Central, Hong Kong ("Party B"). Party
B's operating subsidiaries in mainland China include Guangdong Mobile
Communication Company Limited, Zhejiang Mobile Communication Company Limited,
Jiangsu Mobile Communication Company Limited, Fujian Mobile Communication
Company Limited, Henan Mobile Communication Company Limited and Hainan Mobile
Communication Company Limited;
BEIJING MOBILE COMMUNICATION COMPANY LIMITED, a limited liability
company duly established and existing under the laws of PRC, with its legal
address at 58 Dong Zhong Jie, Dong Cheng District, Beijing;
SHANGHAI MOBILE COMMUNICATION COMPANY LIMITED, a limited liability
company duly established and existing under the laws of PRC, with its legal
address at 668 Beijing Dong Lu, Shanghai;
TIANJIN MOBILE COMMUNICATION COMPANY LIMITED, a limited liability
company duly established and existing under the laws of PRC, with its legal
address at 64 Zone M, Tianjin Port Bonded Area, Tianjin;
SHANDONG MOBILE COMMUNICATION COMPANY LIMITED, a limited liability
company duly established and existing under the laws of PRC, with its legal
address at 84 Da Wei Er Lu, Shi Zhong District, Jinan, Shandong;
HEBEI MOBILE COMMUNICATION COMPANY LIMITED, a limited liability
company duly established and existing under the laws of PRC, with its legal
address at 220 Qing Yuan Jie, Shijiazhuang, Hebei;
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 Wei Lu, Shehe District, Shenyang, Liaoning; and
GUANGXI MOBILE COMMUNICATION COMPANY LIMITED, a limited liability
company duly established and existing under the laws of PRC, with its legal
address at 92 Min Zu Da Dao, Nanning, Guangxi Zhuang Autonomous Region;
(Beijing Mobile Communication Company Limited, Shanghai Mobile
Communication Company Limited, Tianjin Mobile Communication Company Limited,
Hebei Mobile Communication Company Limited, Shandong Mobile Communication
Company Limited, Liaoning Mobile Communication Company Limited and Guangxi
Mobile
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Communication Company Limited each a "Target Company", collectively, "Target
Companies").
WHEREAS:
1. With the approval of the State Council and the Ministry of Information
Industry, Party A intends to sell to Party B, and Party B intends to
acquire from Party A, all of Party A's equity interests in the Target
Companies.
2. Party B is a company listed on the Stock Exchange of Hong Kong Limited
and the New York Stock Exchange, Inc., with about 25% of its issued
and outstanding shares being held by overseas investors and Party A is
its indirect controlling shareholder.
3. Party A and Party B executed the "Spectrum/Number Resources Use
Agreement" and the "Trademark License Contract" on October 8, 1999,
and the "Inter-provincial Transmission Lines Fee Sharing Agreement"
and the "Inter-provincial Interconnection and Domestic and
International Roaming Settlement Agreement" on May 5, 2000,
respectively, in which agreements the Parties agreed upon the matters
in connection with the use of spectrum and number resources by Party
B's six operating companies for their operation of mobile
communications services, sharing of inter-provincial transmission
lines fee, settlement of inter-provincial interconnection and domestic
and international roaming services and trademark licensing.
4. Party B and the Target Companies all wish, and Party A agrees, that
from the date on which the Target Companies become Party B's direct or
indirect wholly owned subsidiaries, the Target Companies shall also be
performing the Spectrum/Number Resources Use Agreement, the Trademark
License Agreement, the Inter-provincial Interconnection and Domestic
and International Roaming Settlement Agreement and the
Inter-provincial Transmission Lines Fee Sharing Agreement, and shall
enjoy the rights and assume the obligations thereunder.
Through friendly negotiations, the Parties reach the following
agreements:
1. Each Party hereby agrees that a Target Company, from the date on which
it becomes Party B's direct or indirect wholly owned subsidiary
("Effective Date"), will enjoy the same rights and assume the same
obligations under the Spectrum/Number Resources Use Agreement, the
Inter-provincial Interconnection and Domestic and International
Roaming Settlement Agreement and the Inter-provincial Transmission
Lines Fee Sharing Agreement as each of Party B's mainland China mobile
communications operating subsidiaries.
2. Party B shall be responsible for causing each Target Company to
perform all its obligations under each of the Spectrum/Number
Resources Use Agreement, the Inter-provincial Interconnection and
Domestic and International Roaming Settlement Agreement and the
Inter-provincial Transmission Lines Fee Sharing Agreement in
accordance with the terms and conditions thereof.
3. Party A hereby agrees that each Target Company may use the
trademark(s) licensed by Party A in accordance with the terms and
conditions of the "Trademark License
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Contract" executed by Party A and Party B on October 8, 1999 and this
Agreement. The Parties agree that by virtue of this paragraph, each of
the Target Companies shall have the right to use Party A's
trademark(s) in accordance with the terms and conditions of the
Trademark License Contract and this Agreement. Party A shall file the
trademark license hereunder with the State Administration of Industry
and Commerce and the State Trademark Bureau.
4. This Agreement shall come into effect as of the Effective Date. The
Target Companies shall begin to perform each of the Spectrum/Number
Resources Use Agreement, the Trademark License Contract, the
Inter-provincial Interconnection and Domestic and International
Roaming Settlement Agreement and the Inter-provincial Transmission
Lines Fee Sharing Agreement as of the Effective Date.
5. The execution, validity, performance, interpretation of and resolution
of dispute in connection with this Agreement, the Spectrum/Number
Resources Use Agreement, the Trademark License Contract, the
Inter-provincial Interconnection and Domestic and International
Roaming Settlement Agreement and/or the Inter-provincial Transmission
Lines Fee Sharing Agreement between Party A and Party B shall be
governed by the laws of the People's Republic of China.
Any dispute arising from or in connection with the validity,
interpretation or performance of this Agreement, or of the
Spectrum/Number Resources Use Agreement, the Trademark License
Contract, the Inter-provincial Interconnection and Domestic and
International Roaming Settlement Agreement and/or the Inter-provincial
Transmission Lines Fee Sharing Agreement between Party A and Party B
shall be settled by the Parties through friendly negotiation. In the
event that negotiation produces no solution, a Party may submit the
dispute to China International Economic and Trade Arbitration
Commission for arbitration in accordance with its then effective
arbitration rules in Beijing. The award of such arbitration shall be
final and binding on each Party. The arbitration fee shall be borne by
the losing Party/Parties.
Except for matters under arbitration, the remaining part of the
Agreement shall remain in effect during the time of arbitration.
6. The conditions precedent to the effectiveness of this Agreement are as
follows:
(1) Party B shall have been granted relevant waivers by the Stock
Exchange of Hong Kong Limited ("HKSE") on Party B's related
party transactions in accordance with the listing rules of
HKSE;
(2) The independent shareholders of Party B who are deemed to be
independent in accordance with the HKSE listing rules shall
have approved relevant transactions; and
(3) Party B shall have completed the acquisition of the Target Companies.
7. This Agreement shall be executed by the legal or authorized
representatives, and affixed with the official seal, of each Party.
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8. The Agreement is signed in ten counterparts. Each Party will keep one
copy, and the remaining one copy will be kept by China Mobile (Hong
Kong) Limited for registration or filing purpose as necessary. Each of
the signed original copies shall have the same force and effect.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their duly authorized representatives as of the date first above
written.
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CHINA MOBILE COMMUNICATIONS CORPORATION CHINA MOBILE (HONG KONG) LIMITED
By: s/Xue Taohai
Authorized Representative By: s/Wang Xiaochu
Authorized Representative
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BEIJING MOBILE COMMUNICATION COMPANY LIMITED SHANGHAI MOBILE COMMUNICATION COMPANY LIMITED
By: s/Zhao Jinxiang By: s/Chen Suxian
Authorized Representative Authorized Representative
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TIANJIN MOBILE COMMUNICATION COMPANY LIMITED SHANDONG MOBILE COMMUNICATION COMPANY LIMITED
By: s/Wang Xueli By: s/Li Huabin
Authorized Representative Authorized Representative
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HEBEI MOBILE COMMUNICATION COMPANY LIMITED LIAONING MOBILE COMMUNICATION COMPANY LIMITED
By: s/Zhang Liande By: s/Zhang Xuehong
Authorized Representative Authorized Representative
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GUANGXI MOBILE COMMUNICATION COMPANY LIMITED
By: s/Gan Yuecai
Authorized Representative
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