Business Operations Agreement
Exhibit
4.88
This
Business Operations Agreement (this “Agreement”) is entered into on the day of
April 1, 2009, in Beijing by and among the following parties:
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Party
A:
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Kongzhong Information
Technologies (Beijing) Co., Ltd.
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Address:
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▇▇▇,
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇.▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇
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Legal
Representative:
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▇▇▇▇▇▇
▇▇▇▇
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Party
B:
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Shanghai
Mailifang Communications Ltd.
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Address:
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▇▇▇▇
▇▇▇, ▇▇. ▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ New District,
Shanghai.
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Party
C:
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Xu
Guo
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Party
D:
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▇▇▇▇
▇▇▇▇
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WHEREAS:
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1.
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Party
A is a wholly foreign-owned enterprise registered in the
PRC;
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2.
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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;
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3.
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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;
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4.
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Party
C and party D are all shareholders of Party B (the “Shareholders of Party
B”), which own 90% and 10% equity in Party B
respectively.
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Party A,
Party B, Party C and Party D, through friendly negotiation in the principle of
equality and common interest, hereby jointly agree the
following:
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1.
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Non-action
Obligation
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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 Party
C and Party D 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:
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1.1
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To
conduct any business which is beyond normal business
operations;
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1.2
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To
borrow money or incur any debt from any third
party;
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1.3
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To
change or dismiss any directors or to dismiss and replace any senior
management officers;
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1.4
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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;
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1.5
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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;
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1.6
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To
amend the Articles of Association of the company or to change its scope of
business;
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1.7
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To
change the normal business process or modify any material by
laws;
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1.8
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To
assign rights and obligations under this Agreement to any third
party.
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2.
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Management
of Operation and Arrangements of HR
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2.1
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Party
B together with its shareholders Party C and Party D 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.
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2.2
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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.
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2.3
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If
any of the above 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.
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2
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2.4
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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.
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2.5
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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.
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3.
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Other
Agreements
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3.1
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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.
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3.2
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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.
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4.
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Entire
Agreement and Modifications
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4.1
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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.
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4.2
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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.
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Governing
Law
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The
execution, effect, performance and the resolution of disputes of this Agreement
shall be governed by and construed in accordance with the PRC laws.
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6.
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Dispute
Resolution
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6.1
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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.
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6.2
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Each
Party shall continue to perform its obligations in good faith according to
the provisions of this Agreement except for the matters in
dispute.
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7.
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Notice
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7.1
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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.
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Party
A:
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Kongzhong
Information Technologies (Beijing) Co., Ltd.
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Address:
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35
F, Tengda ▇▇▇▇▇, ▇▇.▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇
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Fax:
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(86)10−▇▇▇▇▇▇▇▇
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Tele:
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(86)10−88576000
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Addressee:
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▇▇▇▇▇▇
▇▇▇▇
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Party
B:
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Shanghai
Mailifang Communications Ltd.
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Address:
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35
F, Tengda ▇▇▇▇▇, ▇▇.▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇
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Fax:
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(86)10−▇▇▇▇▇▇▇▇
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Tele:
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(86)10−88576000
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Addressee:
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▇▇▇▇▇▇
▇▇▇▇
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Party
C: Xu Guo and Party D:▇▇▇▇ ▇▇▇▇
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Address:
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35
F, Tengda ▇▇▇▇▇, ▇▇.▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇
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Fax:
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(86)10−▇▇▇▇▇▇▇▇
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Tele:
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(86)10−88576000
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Addressee:
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▇▇▇▇▇▇
▇▇▇▇
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8.
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Effect,
Term and Other About This Agreement
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8.1
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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.
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8.2
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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.
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4
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8.3
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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.
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8.4
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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.
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8.5
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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.
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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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(No text
on this page)
Party
A: Kongzhong Information Technologies (Beijing) Co., Ltd.
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Authorized
Representative:
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(seal)
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Party
B: Shanghai Mailifang Communications Ltd.
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Authorized
Representative:
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(seal)
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Party
C: Xu Guo
Signature:
/s/ Xu
Guo
Party
D: ▇▇▇▇ ▇▇▇▇
Signature:
/s/ ▇▇▇▇
▇▇▇▇
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