EXHIBIT 4.44
BUSINESS OPERATIONS AGREEMENT
This Business Operations Agreement (this "Agreement") is entered into on the day
of November 21, 2005, in Beijing by and among the following parties:
PARTY A: KONGZHONG INFORMATION TECHNOLOGIES (BEIJING) CO., LTD.
Address: Tengda Plaza, No.168 Xizhimenwai Street, Haidian District,
Beijing
Legal Representative: Zhou Yunfan
PARTY B: WUHAN CHENGXITONG INFORMATION TECHNOLOGY CO., LTD.
Address: __________________________________________________________
Legal Representative: __________________________________________________________
PARTY C: LI YANG
Address: __________________________________________________________
PARTY D: WU XUELEI
Address: __________________________________________________________
WHEREAS:
1. Party A is a wholly foreign-owned enterprise registered in the PRC;
2. Party B, a wholly domestic-owned company registered in the PRC, is approved
by relevant government authorities to engage in the value-added
telecommunications service;
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 pay all incomes from main business operations to Party
A, and subsequently the daily operation of Party B will have a material
impact on its payment capacity to Party A.;
4. Party C, Party D are all shareholders of Party B (the "Shareholders of
Party B"), which own 90% and 10% equity in Party B respectively.
Party A, Party B, Party C, Party D, through friendly negotiation in the
principle of equality and common interest, hereby jointly agree the following:
1
1. NON-ACTION OBLIGATION
In order to ensure Party B's performance of the agreements between Party A
and Party B and all its obligations to Party A, Party B together with its
shareholders hereby jointly confirm and agree that Party B will 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 normal business operations;
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 senior
management officers;
1.4 To sell to or acquire from any third party any assets or rights exceeding
RMB 200,000 Yuan, 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 place its assets
under any other obligations;
1.6 To amend the Articles of Association of the company or to change its scope
of business;
1.7 To change the normal business process or modify any material bylaws;
1.8 To assign rights and obligations under this Agreement to any third party.
2. MANAGEMENT OF OPERATION AND ARRANGEMENTS OF HR
2.1 Party B together with its shareholders Party C, Party D and Party E 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 the Shareholders of Party B hereby jointly agree that
the Shareholders of Party B shall only appoint candidates 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 cause the chosen directors to elect Party A's president
candidate as President of the company, and Party B shall engage Party
A's nominees as Party B's General Manager, Chief Financial
Officer, and other senior officers.
2.3 If any of the above officers quits or is dismissed by Party A, he or she
will lose the qualification to
2
undertake any positions in Party B and therefore the Shareholders of Party
B shall appoint other nominees of Party A to assume such positions.
2.4 For the purpose of 2.3, the Shareholders of Party B shall take all
necessary inside and outside procedures to accomplish the above dismissal
and engagement.
2.5 The Shareholders of Party B hereby agree, simultaneously with the execution
of this Agreement, to sign Powers of Attorneys, according to which the
Shareholders of Party B will authorize personnel designated by Party A to
exercise their shareholders' rights and their full voting rights as
shareholders at Party B's shareholders' meetings. The Shareholders of Party
B further agree to replace the authorized persons appointed in the above
mentioned Power of Attorney at any time at the request 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 is entitled to terminate all agreements
between Party A and Party B including but not limited to the 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 operations of Party B
shall bear a material impact on its capacity to pay the payables to Party
A, the Shareholders of Party B jointly agree that they will immediately and
unconditionally pay or transfer to Party A any bonus, dividends or any
other incomes or benefits (regardless of the forms) obtained from Party B
as shareholders of Party B at the time such payables occur.
4. ENTIRE AGREEMENT AND MODIFICATIONS
4.1 This Agreement together with all the other agreements and/or documents
mentioned or explicitly included in this Agreement will be part of the
whole agreement concluded in respect of the matters in this Agreement and
shall replace all other prior oral and written agreements, contracts,
understandings and communications among all the parties involving this
matters.
4.2 Any amendment and supplement to this Agreement shall take effect only after
it is executed by all Parties. The amendment and supplement duly executed
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
3
governed by and construed in accordance with the PRC laws.
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 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 Notices for the purpose of exercising the rights and performing the
obligations hereunder shall be in writing and be delivered by personal
delivery, registered or mail or postage prepaid mail, recognized courier
service or by facsimile transmission to the address of the relevant party
or parties set forth below.
PARTY A: KONGZHONG INFORMATION TECHNOLOGIES (BEIJING) CO., LTD.
Address: Tengda Plaza, No.168 Xizhimenwai Street, Haidian District, Beijing
Fax: _____________________________
Tele: _____________________________
Addressee: Zhou Yunfang
PARTY B: WUHAN CHENGXITONG INFORMATION TECHNOLOGY CO. LTD.
Address: _____________________________
Fax: _____________________________
Tele: _____________________________
Addressee: _____________________________
PARTY C: LI YANG
Address: _____________________________
Fax: _____________________________
Tele: _____________________________
PARTY D: WU XUELEI
Address: _____________________________
4
Fax: _____________________________
Tele: _____________________________
8. EFFECT, TERM AND OTHER ABOUT THIS AGREEMENT
8.1 Any written consent, suggestion, appointment or other decisions which have
material effects on Party B's daily business operations involved in this
Agreement shall adopted by the board of directors of Party A.
8.2 This Agreement will take effect upon execution by duly authorized
representatives of all parties and the term of this Agreement will last
until Party A is dissolved according to the PRC laws.
8.3 Party B and the Shareholders of Party B shall not terminate this Agreement
within the term of this Agreement while Party A is entitled to terminate
this Agreement any time by issuing a written notice to Party B and the
Shareholders of Party B 30 days prior to the termination.
8.4 In case any term or provision 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 be null and void, and this
Agreement shall be treated as without it from the very beginning. However,
the rest of the provisions will remain effective. The parties shall replace
the deleted provisions with lawful, effective and mutually acceptable ones
through negotiations.
8.5 Any non-exercise of any rights, powers or privileges hereunder shall not be
deemed as a waiver thereof. Any single or partial exercise of such rights,
powers or privileges shall not exclude one party from exercising any other
rights, powers or privileges.
IN WITNESS WHEREOF the parties hereto have caused this Agreement to be duly
executed on their behalf by duly authorized representatives as of the Effective
Date first written above.
5
(No text on this page, signatory page of Business Operation Agreement)
PARTY A: KONGZHONG INFORMATION TECHNOLOGIES (BEIJING) CO., LTD.
Authorized Representative:
-------------
PARTY B: Wuhan Chengxitong Information Technology Co., Ltd.
Authorized Representative:
-------------
PARTY C: LI YANG
Signature:
-----------------------------
PARTY D: WU XUELEI
Signature:
-----------------------------
6