EXHIBIT 4.50
OPTION AGREEMENT
THIS OPTION AGREEMENT (this "Agreement") is entered into by and among the
following parties (the "Parties") in Beijing, People's Republic of China (the
"PRC") on February 28, 2005:
PARTY A: KONGZHONG INFORMATION TECHNOLOGIES (BEIJING) CO., LTD.
Address: Tengda Plaze, No.168 Xiwai Street, Haidian District,
Beijing
Legal Representative: Zhou Yunfan
PARTY B: YANG YANG
Address: 407, No. 397 Guang An Men Wai Avenue, Xuanwu District,
Beijing
PARTY C: WANG GUIJUN
Address: No. A17, An De Li North Street, Dongcheng District,
Beijing
PARTY D: WU LINGUANG
Address: 159-204, No.3 Fei Xi Road, Shushan District, Hefei
PARTY E: BEIJING WIRELESS INTERACTIVE NETWORK TECHNOLOGIES CO.,
LTD.
Address: E190, Jianli Hotel, No.B21Jiu Xian Qiao Road, Chaoyang
District, Beijing
Legal Representative: Yang Yang
WHEREAS
1. Party A is a wholly foreign-owned enterprise incorporated in the PRC.
2. Party E is a limited liability company incorporated in the PRC with Party
B, Party C and Party D as its shareholders and holds a license issued by
relevant government authorities to hold the business permit to engage in
telecommunications value-added services.
3. Party B, Party C and Party D (the "Authorizing Parties" or the
"Shareholders of Party E") are the shareholders of Party E and own 40%, 30%
and 30% equity interest in Party E respectively. Party B,
Party C and Party D have signed Share Transfer Agreements with Party E's
original shareholders consideration who transferred their respective equity
interest in Party E on 17 February 2005. The consideration for the equity
interest transfer was paid by Party A.
THE PARTIES HEREBY AGREE AS FOLLOWS:
1. GRANT OF THE OPTION
1.1 Grant
The Authorizing Parties hereby grant to Party A an option to purchase all
their respective equity interest in Party E at the lower price between the
lowest price permitted by PRC laws and the audited net asset value of Party
E of the time when the option is exercised by Party A or its designated
third party by installment or lump sum.
1.2 Term
This Agreement shall take effect as of the date of execution by the parties
hereto and shall remain in full force and effect until all of the equity
interest held in Party E by Party e's Shareholders have been purchased by
Party A subject to PRC laws.
2. EXERCISE OF THE OPTION AND CLOSING
2.1 Timing of Exercise
2.1.1 The Authorizing Parties agree unanimously that subject to PRC laws
and regulations, Party A may exercise partly or fully the option
anytime during the term of this Agreement.
2.1.2 The Authorizing Parties agree unanimously that there is no limitation
on the times for Party A to exercise the option, unless Party A has
purchased all of the equity interest in Party E.
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2.1.3 The Authorizing Parties agree unanimously that Party A may designate
in its sole discretion any third party to exercise the option on its
behalf, in which case Party A shall provide a prior written notice to
the Authorizing Parties.
2.2 Presentation of the consideration from the exercise of the options
The Authorizing Parties agree unanimously that Party A will present the
consideration from the exercise of the options by Party A or its designated
third party to Party E at no cost at all.
2.3 Transfer
The Authorizing Parties agree unanimously that the option held by Party A
under this Agreement may be transferred to a third party, which shall be
deemed as a party to this Agreement and is entitled to exercise the option
under terms of this Agreement, to enjoy the rights and assume the
obligations of Party A under this Agreement.
2.4 Notice for the exercise of the Option
To exercise the Option, Party A shall send a written notice to the
Authorizing Parties 10 business days before the closing date (as defined
below) and the followings shall be specified in the notice:
2.4.1 The date of the effective closing of such purchase (a "Closing
Date"), that is, the date on which an application is filed with the
commercial and industrial administrative authorities for registration
of the change in the equity interests;
2.4.2 the name of the person in which the Equity Interest shall be
registered;
2.4.3 the amount of the Equity Interest to be purchased from the
Authorizing Parties;
2.4.4 means of payment; and
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2.4.5 a power of attorney (applicable if a third party has been designated
to exercise the Option)
The Authorizing Parties hereto agree unanimously that Party A is entitled
to designate a third party for the exercise of the Option at any time and
select to register the Equity Interest in the name of a third party. The
Authorizing Parties agree that as long as Party A or its designated third
Party forward the request to exercise the Option, the Authorizing Parties
shall execute the equity interest transfer agreement and other relevant
documents in accordance with the notice and this Agreement within 10
business days from the receipt of such notice.
2.5 Closing
On the Closing Date, Party A shall pay to the relevant Authorizing Parties
the applicable purchase price for the Equity Interest as provided in
Article 1.1 above. Party A and the Authorizing Parties shall provide any
necessary assistance to Party [E] with respect to the registration of any
change in the equity interest with the commercial and industrial
administrative authorities.
3. REPRESENTATIONS AND WARRANTIES
3.1 The Authorizing Parties hereby represent and warrant as follows:
3.1.1 They have the full right and authority to enter into and perform this
Agreement;
3.1.2 The performance of the obligations hereunder does not violate any
applicable laws, regulations and contracts, or require any government
authorization or approval;
3.1.3 There is no lawsuit, arbitration or other legal or administrative
proceedings pending which, based on their knowledge, may possibly have
material and adverse effects on the performance of this Agreement;
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3.1.4 The Authorizing Parties will not create any pledge, debt or other
third party rights on the equity interest in Party E and will not
dispose the same to any third party by transferring, granting,
pledging or any other means.
3.1.5 There is no pledge, debt or other third party right in any form on
the equity interest in Party E held by the Authorizing Parties.
3.1.6 The option granted to Party A shall be exclusive and the Authorizing
Parties shall not grant any option or similar right to other parties
in any way.
3.2 Undertaking
Considering that Party A or its designated third party will present the
consideration from the exercise of the option to Party E, Party E hereby
undertakes to Party A that it will bear all costs arising from the equity
interest transfer, carry out all the formalities needed for Party A or its
designated third party to become the shareholders of Party E. Such
formalities include, but not limited to, assisting Party A in obtaining
necessary approvals for the equity interest transfer from relevant
government authorities (if any), the submission of the equity interest
transfer agreements to the relevant administrative authorities for industry
and commerce in order to amend the Articles of Association and the list of
shareholders and make any other necessary changes.
4. TAXES
All taxes arising from the performance of this Agreement will be paid by
Party E.
5. BREACH OF AGREEMENT
5.1 Unless otherwise provided by this Agreement, a party is deemed as in breach
of this Agreement if it fails to fully perform or suspends the performance
of its obligations under this Agreement, and does not correct its
wrongdoings within 30 days upon receipt of the notice by the other party,
or its representations and warranties are not truthful.
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5.2 If one party violates this Agreement or its representations and warranties
in this Agreement, the abiding party may notify the default party in
writing, requesting it to correct its wrongdoings within 10 days from the
receipt of the notice, take corresponding measures to effectively and
timely avoid the damages and to resume the performance of this Agreement.
If there are damages, the default party shall compensate the abiding party,
so that the abiding party shall obtain all the rights and interest as to be
received from the performance of the Agreement.
5.3 If either party breaches this Agreement, which causes the other party to
bear any expenses, liabilities or suffer any losses (including not limited
to the profit losses of the company), the default party shall compensate
the abiding party with respect to such expenses, liabilities or losses
(including not limited to the interests lost or paid due to the breach and
attorney fees). The amount of the compensation shall equal the losses
caused by such breach. The compensation shall include the interests to be
received by the abiding party from performance of this Agreement, but shall
not exceed the reasonable expectations of the Parties.
5.4 In case all the Parties breach this Agreement, the amounts of compensation
shall be determined in accordance with the severity of their respective
breaches.
6. GOVERNING LAW AND DISPUTE SETTLEMENT
6.1 Governing Laws
This Agreement shall be governed by the PRC laws, including but not limited
to the execution, performance, effect and interpretation of this Agreement.
6.2 Friendly Consultation
The Parties shall settle any dispute regarding the interpretation or
performance of this Agreement through friendly consultation or mediation by
a third party. Any dispute that cannot be resolved through such
consultation or mediation shall be submitted to the arbitration authority
for arbitration within 30 days from the commencement of such discussions.
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6.3 Arbitration
Any dispute in connection with this Agreement shall submitted to China
International Trade Arbitration Committee for arbitration in accordance
with its arbitration rules. The arbitration award shall be final and
binding on all the Parties to this Agreement.
7 CONFIDENTIALITY
7.1 Confidential Information
This Agreement and the Annexes hereof shall be kept confidential. No Party
shall disclose any information on this Agreement to any third party (except
for the part agreed upon by the Parties with a prior written agreement).
Each Party's obligations under this clause shall survive after the
termination of this Agreement.
7.2 Exceptions
If a disclosure is explicitly required by law, any courts, arbitration
tribunals, or administrative authorities, such a disclosure by any Party
shall not be deemed as a violation of Article 7.1 above.
8. MISCELLANEOUS
8.1 Entire agreement
This Agreement constitutes the entire agreement and understanding among the
Parties in respect of the subject matter hereof and supersedes all the
prior discussions, negotiations and agreements among them. This Agreement
shall only be amended by a written instrument signed by all the Parties.
The Annexes attached hereto shall constitute an integral part of this
Agreement and shall have the same legal effect as this Agreement.
8.2 Notices
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Any notices or other correspondences among the Parties in connection with
the performance of this Agreement shall be in writing and be delivered in
person, by registered mail, prepaid mail, recognized express mail or
facsimile to the following correspondence addresses:
PARTY A: KONGZHONG INFORMATION TECHNOLOGIES (BEIJING) CO., LTD.
Address: Tengda Plaze, No.168 Xiwai Street, Haidian District, Beijing
Fax: +86 01 88575900
Tele: +86 01 88576000
Addressee: Zhou Yunfang
PARTY B: YANG YANG
Address: 407, No. 397 Guang An Men Wai Avenue, Xuanwu District, Beijing
Fax: +86 01 88575900
Tele: +86 01 88576000
Addressee: ______________________________
PARTY C: WANG GUIJUN
Address: No. A17, An De Li North Street, Dongcheng District, Beijing
Fax: +86 01 88575900
Tele: +86 01 88576000
PARTY D: WU LINGUANG
Address: 159-204, No.3 Fei Xi Road, Shushan District, Hefei
Fax: +86 01 88575900
Tele: +86 01 88576000
Addressee: Wu Linguang
PARTY E: BEIJING WIRELESS INTERACTIVE NETWORK TECHNOLOGIES CO., LTD.
Address: E190, Jianli Hotel, No.B21Jiu Xian Qiao Road, Chaoyang District,
Beijing
Fax: +86 01 88575900
Tele: +86 01 88576000
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Addressee: Yang Yang
8.2.1 Notices and correspondences shall be deemed to have been effectively
delivered:
8.2.2.1 at the exact time displayed in the corresponding transmission
record, if delivered by facsimile, unless such facsimile is sent
after 5:00 pm or on a non-business day in the place where it is
received, in which case the date of receipt shall be deemed to be
the following business day;
8.2.2.2 on the date that the receiving Party signs for the document,
if delivered in person (including express mail);
8.2.2.3 on the fifteenth (15th ) day after the date shown on the
registered mail receipt, if sent by registered mail;
8.2.4 Binding Force
This Agreement shall be binding on the Parties.
8.3 Language and Counterparts
This Agreement shall be executed in 5 originals in Chinese, with each party
holding one copy.
8.4 Days and Business Day
A reference to a day herein shall mean a calendar day. A reference to a
business day herein shall mean any day from Monday through Friday in a
week.
8.5 Headings
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The headings contained herein are inserted for reference purposes only and
shall not affect the meaning or interpretation of any part of this
Agreement.
8.6 Unspecified Matters
Any matter not specified in this Agreement shall be handled through
discussions among the Parties and resolved in accordance with the PRC laws.
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PARTY A: KONGZHONG INFORMATION TECHNOLOGIES (BEIJING) CO., LTD.
Authorized Representative:
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PARTY B: YANG YANG
Signature:
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PARTY C: WANG GUIJUN
Signature:
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PARTY D: WU LINGUANG
Signature:
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PARTY E: BEIJING WIRELESS INTERACTIVE NETWORK TECHNOLOGIES CO., LTD.
Authorized Representative:
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