EXHIBIT 4.49
BUSINESS OPERATIONS AGREEMENT
This Business Operations Agreement (this "Agreement"), dated February 28, 2005
is entered into at Beijing by and among the following parties:
Party A: KongZhong Information Technologies (Beijing) Co., Ltd.
Address: Tengda Plaze, No.168 Xiwai Street, Haidian District,
Beijing
Legal Representative: Zhou Yunfan
Party B: Beijing Wireless Interactive Network Technologies Co.,
Ltd.
Address: E190, Jianli Hotel, No.B21 Jiu Xian Qiao Road, Chaoyang
District, Beijing
Legal Representative: Yang Yang
Party C: Yang Yang
Address: 407, No. 397 Guang An Men Wai Avenue, Xuanwu District,
Beijing
Party D: Wang Guijun
Address: A17, An De Li North Street, Dongcheng District, Beijing
Party E: Wu Linguang
Address: 159-204, No.3 Fei Xi Road, Shushan District, Hefei
WHEREAS:
1. Party A is a wholly foreign-owned enterprise incorporated in the People's
Republic of China (the "PRC");
2. Party B, a wholly domestic-owned company with limited liabilities
incorporated in the PRC, is approved by relevant government authorities to
hold the business permit to engage in value-added telecommunications
services;
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 capacity to make payments to Party A.;
4. Party C, Party D and Party E are all shareholders of Party B (the
"Shareholders of Party B"), which own 40%, 30% and 30% equity in Party B
respectively.
Party A, Party B, Party C, Party D and Party E, through friendly negotiation in
the principle of equality and common interest, hereby jointly agree the
following:
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, the Shareholders of Party B
hereby confirm and agree that, unless a prior written consent from Party A
has been obtained, Party B will not conduct any transaction which, as
determined by Party A, may materially affect its assets, obligations,
rights, employees or the company's operation has been obtained, including
but not limited to:
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 replace any senior management
officers;
1.4 To sell to or acquire from any third party any assets or rights exceeding
RMB 200,000, 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 set any other
rights against its assets;
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 the Shareholders of Party B 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 ensure the chosen directors to elect the candidate recommended
by Party A as President of Party B, and Party B shall appoint the
candidates designated by Party A as Party B's General Manager, Chief
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Financial Officer, and other senior officers.
2.3 If any of the above directors or officers quits or is dismissed by Party A,
he or she will lose the qualification to 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 in accordance with the applicable
law, Articles of Association of the Company and this Agreement 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, pursuant 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, the daily business operations of Party B
will have a material impact on its capacity to make the relevant payments
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 constitute the entire
agreement concluded by the parties in respect of the matters in this
Agreement and shall supersede 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.
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5. GOVERNING LAW
The execution, effect and performance of this Agreement and the resolution
of disputes in respect of this Agreement shall be 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 of this Agreement 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 Plaze, No.168 Xiwai Street, Haidian District, Beijing
Fax: +86 10 88575900
Tele: +86 10 88576000
Addressee: Zhou Yunfang
PARTY B: BEIJING WIRELESS INTERACTIVE NETWORK TECHNOLOGIES CO., LTD.
Address: E190, Jianli Hotel, No.B21Jiu Xian Qiao Road, Chaoyang District,
Beijing
Fax: +86 10 88575900
Tele: +86 10 88576000
Addressee: Yang Yang
PARTY C: YANG YANG
Address: 407, No. 397 Guang An Men Wai Avenue, Xuanwu District, Beijing
Fax: +86 10 88575900
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Tele: +86 10 88576000
PARTY D: WANG GUIJUN
Address: A17, An De Li North Street, Dongcheng District, Beijing
Fax: +86 10 88575900
Tele: +86 10 88576000
PARTY E: WU LINGUANG
Address: 159-204, No.3 Fei Xi Road, Shushan District, Hefei
Fax: +86 10 88575900
Tele: +86 10 88576000
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 be 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 at 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 of 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.
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PARTY A: KONGZHONG INFORMATION TECHNOLOGIES (BEIJING) CO., LTD.
Authorized Representative: _________________________
PARTY B: BEIJING WIRELESS INTERACTIVE NETWORK TECHNOLOGIES CO., LTD.
Authorized Representative: __________________________
PARTY C: YANG YANG
Signature:
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PARTY D: WANG GUIJUN
Signature:
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PARTY E: WU LINGUANG
Signature:
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