{"id":42052,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/agreement-regarding-the-roaming-settlement-of-shenzhouxing.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"agreement-regarding-the-roaming-settlement-of-shenzhouxing","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/operations\/agreement-regarding-the-roaming-settlement-of-shenzhouxing.html","title":{"rendered":"Agreement Regarding the Roaming Settlement of “Shenzhouxing” Pre-Paid Services and Revenue Sharing of Sales of Added Value for Value-Adding Cards – China Mobile Communications Corp. and China Mobile (Hong Kong) Ltd."},"content":{"rendered":" AGREEMENT\n REGARDING THE ROAMING SETTLEMENT OF\n \"SHENZHOUXING\" PRE-PAID SERVICES\n AND REVENUE SHARING OF SALES OF ADDED VALUE FOR\n VALUE-ADDING CARDS\n\n BETWEEN\n\n CHINA MOBILE COMMUNICATIONS CORPORATION\n\n AND\n\n CHINA MOBILE (HONG KONG) LIMITED\n\n\n DATED AS OF OCTOBER 4, 2000\n 2\n AGREEMENT REGARDING THE ROAMING SETTLEMENT\n OF \"SHENZHOUXING\" PRE-PAID SERVICES\n AND REVENUE SHARING OF SALES OF ADDED VALUE FOR VALUE-ADDING CARDS\n\n This Agreement is executed by the following two parties on October 4,\n2000 in Beijing:\n\n CHINA MOBILE COMMUNICATIONS CORPORATION, a wholly state-owned corporate\nentity duly established and existing under the laws of the People's Republic of\nChina, with its legal address at 53 A, Xibianmen Nei Da Jie, Xuanwu District,\nBeijing, PRC (\"Party A\"); and\n\n CHINA MOBILE (HONG KONG) LIMITED, a limited liability company duly\nestablished and existing under the laws of Hong Kong, with its legal address at\n60th Floor, the Center, 99 Queen's Road Central, Hong Kong, China (\"Party B\").\n\nWHEREAS:\n\n1. Party A currently implements centralized management nationwide of the sales\nof the Pre-paid Cards and Value-adding Cards, the interconnection and roaming\nservices among networks and the related account settlement in connection with\nthe \"Shenzhouxing\" Pre-paid Cards and Value-adding Cards service.\n2. Party B is a company listed on the Stock Exchange of Hong Kong Limited \n(\"HKSE\") and the New York Stock Exchange, Inc., with about 25% of its issued and\noutstanding shares being held by overseas investors, and Party A is its indirect\ncontrolling shareholder;\n3. Party B's current six operating subsidiaries own and operate the cellular\nmobile phone networks previously owned by Party A in the provinces of Guangdong,\nZhejiang, Jiangsu, Hainan, Fujian and Henan (collectively, Party B's \"current\noperating regions\");\n\n4. In accordance with Party B's acquisition proposal as approved by the relevant\ndepartment of the State Council, Party B desires to acquire the cellular mobile\nphone networks previously owned by Party A in the provinces, municipalities and\nautonomous region of Beijing, Tianjin, Shanghai, Liaoning, Shandong, Hebei, and\nGuangxi (the above seven provinces, municipalities, and autonomous region\ncollectively referred to as \"operating regions to be acquired\" by Party B, Party\nB's \"current operating regions\" and the \"operating regions to be acquired\" by\nParty B collectively referred to as Party B's \"operating regions\", and the\noperating subsidiaries in such operating regions collectively referred to as\nParty B's \"operating subsidiaries\");\n5. Party B has been granted relevant exemptions by HKSE on Party B's related \nparty transactions in accordance with the listing rules of HKSE; and a general \nshareholder meeting will be convened to seek the independent shareholders of \nParty B who are deemed to be independent in accordance with the listing rules to\napprove relevant transactions.\n\n 1\n 3\n6. The six operating subsidiaries in Party B's current operating regions\n(namely, Guangdong, Zhejiang, Jiangsu, Fujian, Hainan and Henan) and the seven\noperating subsidiaries in the operating regions to be acquired by Party B\n(namely, Beijing, Tianjin, Shanghai, Liaoning, Shandong, Hebei and Guangxi)\ncurrently conduct sales of the \"Shenzhouxing\" Pre-paid Cards and Value-adding\nCards in their respective operating region, and the \"Shenzhouxing\" Pre-paid Card\nsubscribers of both Party A and Party B need Party A and Party B to provide\ndomestic inter-provincial interconnection and roaming services.\n\n THEREFORE, the Parties reach the following agreement through\nfriendly consultations.\n\n\n ARTICLE ONE CONDITIONS PRECEDENT TO EFFECTIVENESS\n\n1.1 This Agreement shall not come into effect until the following\n conditions have be satisfied (unless Party B agrees to waiver any of\n such conditions):\n\n 1.1.1 Party B shall have been granted relevant exemptions by \n HKSE for Party B's connected transactions in accordance \n with the listing rules of HKSE;\n\n 1.1.2 The independent shareholders of CMHK who are deemed to be\n independent in accordance with the listing rules shall have\n approved relevant transactions; and\n\n 1.1.3 Party B shall have completed the acquisitions of the seven\n operating subsidiaries in the operating regions to be acquired\n by Party B.\n\n1.2 If the condition set forth in Article 1.1.3 above is not satisfied,\n this Agreement shall be applicable to the six operating subsidiaries in\n Party B's current operating regions.\n\n \n ARTICLE TWO GENERAL PROVISIONS\n\n2.1 Party B's existing six operating subsidiaries, namely Guangdong Mobile,\n Zhejiang Mobile, Jiangsu Mobile, Fujian Mobile, Hainan Mobile and Henan\n Mobile in its current operating regions, and the seven operating\n subsidiaries, namely Beijing Mobile, Tianjin Mobile, Shanghai Mobile,\n Liaoning Mobile, Shandong Mobile, Hebei Mobile, and Guangxi Mobile to\n be acquired by Party B shall be responsible for the sales of\n \"Shenzhouxing\" Pre-paid Cards and Value-adding Cards in the above 13\n provinces, municipalities and autonomous region, and shall comply with\n Party A's centralized business management measures.\n\n\n ARTICLE THREE PRINCIPLES FOR REVENUE SHARING OF INTER-PROVINCIAL SALES OF\n ADDED VALUE FOR THE \"SHENZHOUXING\" VALUE-ADDING CARDS\n\n 2\n 4\n A \"Shenzhouxing\" subscriber, i.e., the holder of the Pre-paid Card, may\npurchase a Value-adding Card in another operating region and add value, in which\ncase the operating subsidiary in such subscriber's home operating region (i.e.,\nthe operating region where such subscriber's Pre-paid Card is registered) shall\nsettle accounts with the operating subsidiary in the operating region where such\nValue-adding Card is registered. Eighty-five percent of the added value of such\nValue-adding Card shall be settled for the account of the operating subsidiary\nin the home operating region of such \"Shenzhouxing\" subscriber, and the\nremaining 15% shall be settled for the account of the operating subsidiary in\nthe operating region where such Value-adding Card is registered.\n\n ARTICLE FOUR SETTLEMENT PRINCIPLES FOR DOMESTIC INTER-PROVINCIAL\n ROAMING OF THE \"SHENZHOUXING\" PRE-PAID SERVICES\n\n Party A and Party B shall conduct roaming settlement in accordance with\nthe existing \"Shenzhouxing\" Pre-paid Services usage charge standards, as may be\nadjusted from time to time.\n\n4.1 Settlement of base roaming charge in connection with domestic\n inter-provincial roaming services:\n\n In respect of roaming into another operating region by the\n \"Shenzhouxing\" subscribers of both Parties, the operating subsidiary in\n the home operating region of such subscribers shall pay, through\n settlement with Party A, 80% of the base roaming charge (currently\n being RMB 0.80 per minute) to the operating subsidiary in the visited\n operating region.\n\n4.2 Settlement of long distance charge when roaming:\n\n In respect of roaming into another operating region by the\n \"Shenzhouxing\" subscribers of both Parties, the operating subsidiary in\n the home operating region of such subscribers shall pay, through\n settlement with Party A, to the operating subsidiary in the visited\n operating region all long distance charges incurred when such\n subscribers make calls while roaming. The operating subsidiary in the\n home operating region of such subscribers may keep all long distance\n charges incurred when such subscribers receive calls while roaming.\n\n4.3 Currently, international roaming services are not available to the\n \"Shenzhouxing\" subscribers. If international roaming services are made\n available to the \"Shenzhouxing\" Pre-paid Card in the future, Party A\n and Party B will enter into a supplemental agreement providing for the\n settlement of the relevant international long distance charges and base\n international roaming charges in accordance with the settlement\n principles set forth in the Inter-Provincial Network Interconnection,\n Domestic and International Roaming and Settlement Agreement, dated May\n 5, 2000, between Party A and Party B.\n\n 3\n 5\n ARTICLE FIVE PRINCIPLES FOR DOMESTIC INTER-PROVINCIAL\n ROAMING CLEARING FEE\n\n The Parties hereby acknowledge and agree that, in consideration of the\ndomestic inter-provincial roaming clearing services provided by Party A to Party\nB, Party B shall pay Party A a domestic inter-provincial roaming call record\nprocessing fee of RMB 0.02 for each call record processed. If international\nroaming services are made available to the \"Shenzhouxing\" Pre-paid Card in the\nfuture, Party A shall provide international (including Hong Kong, Macao and\nTaiwan) roaming clearing services to Party B, for which Party B shall pay Party\nA international roaming clearing fees in accordance with the supplemental\nagreement referred to in Article 4.3 above.\n\n\n ARTICLE SIX SETTLEMENT OF DOMESTIC INTER-PROVINCIAL ROAMING CHARGE OF\n \"SHENZHOUXING\" PRE-PAID CARD; PAYMENT OF CLEARING FEE\n\n6.1 Party A and Party B hereby acknowledge and agree that the Parties shall\n settle the domestic inter-provincial long distance roaming charges in\n connection with the \"Shenzhouxing\" pre-paid service on a monthly basis.\n The cycle of such settlement shall be from 0:00 on the 21st day of the\n proceeding month to 24:00 on the 20th day of the current month. Such\n settlement shall be made on the strength of the settlement statement\n furnished by Party A, and Party B's billing data shall be used for\n reference and verification purpose. If Party B has any different\n opinions on such settlement statement furnished by Party A, the\n settlement shall be nevertheless made on the basis of Party A's such\n settlement statement for the time being. The portion of settlement in\n dispute shall be confirmed by the Parties and adjusted accordingly in\n the succeeding month.\n\n6.2 Party B's Mainland China operating subsidiaries shall perform Party B's\n obligations hereunder to pay Party A the roaming settlement fees and\n the roaming clearing fees.\n\n6.3 Party A and Party B hereby acknowledge and agree that the Parties shall\n settle the roaming settlement and clearing fees in connection with the\n \"Shenzhouxing\" pre-paid service on a monthly basis. The cycle of such\n settlement shall be the same as the settlement of the roaming charges.\n The roaming settlement and clearing fees shall be listed as a separate\n item in the domestic inter-provincial roaming charge settlement\n statement.\n\n6.4 Party A shall furnish the settlement statement of the proceeding month\n to Party B's Mainland China operating subsidiaries by the 18th day of\n each month. Party B's Mainland China operating subsidiaries shall make\n payment accordingly into the bank account designated by Party A by the\n 25th day of each month. Party A shall disburse roaming settlement fees\n to Party B's Mainland China operating subsidiaries by the 28th day of\n each month.\n\n6.5 If either Party fails to make settlement payment as provided for above,\n it shall pay the other Party a late payment surcharge of 0.3% of the\n overdue payment \n\n\n 4\n 6\n per day.\n\n\n ARTICLE SEVEN LIABILITIES FOR BREACH OF CONTRACT\n\n7.1 Any failure by either Party to fully perform any provisions under this\n Agreement on a timely basis shall be deemed as breach of contract. If a\n Party's default hereunder results in full or partial unenforceability\n of this Agreement and\/or related agreements, such Party shall be held\n liable for the consequences of such default, unless such default was\n caused by an event of \"Force Majeure\". Any Party or Parties who\n breaches this Contract as a result of an event of Force Majeure shall\n be liable for the consequences of its\/their own such default.\n\n7.2 If either Party fails to deliver any roaming charge statement to the\n other Party as scheduled, the allocation ratio in respect of the\n roaming charge on such roaming charge statement shall be adjusted in\n accordance with the applicable business regulations.\n\n\n ARTICLE EIGHT FORCE MAJEURE\n\n8.1 If a Party\/both Parties is\/are unable to perform all or any of\n its\/their obligations hereunder as the result of an event of Force\n Majeure, performance of such obligation(s) shall, during the period of\n such event of Force Majeure event, be suspended, and the period for\n performance of such obligations shall be extended automatically, in\n which case the affected Party\/Parties will not be held liable for\n breach of contract.\n\n8.2 The Party affected by an event of Force Majeure shall promptly notify\n in writing the other Party of the occurrence of such Force Majeure\n event and shall, within fifteen days of occurrence of such Force\n Majeure event, furnish the other Party with an effective legal document\n evidencing the occurrence and timing of such Force Majeure event. The\n affected Party shall take all reasonable measures to litigate the\n effects of such event as soon as possible.\n\n8.3 The Parties shall, immediately upon occurrence of an event of Force\n Majeure, hold negotiations for a fair resolution thereof and shall make\n best efforts to litigate the effects of such Force Majeure event.\n\n\n ARTICLE NINE GOVERNING LAW\n\n The execution, validity, interpretation, performance of and dispute\nresolution in connection with this Agreement shall be governed by the laws of\nthe People's Republic of China.\n\n\n ARTICLE TEN RESOLUTION OF DISPUTE\n\n 5\n 7\n10.1 Any and all disputes arising out of or in connection with the\n performance hereof shall be settled through friendly negotiations\n between the Parties and through mediations. If no resolution can be\n reached through negotiations and mediations within ninety days of\n occurrence of any dispute, such dispute shall be submitted for\n arbitration.\n\n10.2 Any dispute submitted for arbitration shall be submitted to the China\n International Economic and Trade Arbitration Commission. Such\n arbitration shall be conducted in accordance with the arbitration rules\n of the Commission in Beijing. The award of such arbitration shall be\n final and binding on both Parties. The cost of arbitration shall be\n borne by the losing Party.\n\n10.3 Except the matter in dispute and under arbitration, the Parties shall,\n during the process of arbitration, continue to perform their\n obligations hereunder and under other related agreements or contracts\n between the Parties.\n\n\n ARTICLE ELEVEN MISCELLANEOUS\n\n11.1 Non-waiver\n\n Any failure of or delay in exercising any right or power hereunder by a\n Party shall not, in accordance with laws of the PRC, be construed as\n waiver of such right or power, and any single or partial exercise of\n any right or power hereunder by a Party shall not in any way affect\n future or full exercise of such right or power by such Party.\n\n11.2 Non-transferable\n\n Neither Party may, without prior written consent of the other Party,\n transfer all or any part of its rights and obligations hereunder. Any\n transfer by either Party of its rights and obligations hereunder shall\n be conducted in accordance with this Agreement.\n\n11.3 Binding Effect\n\n This Agreement is for the benefit of the Parties and their legal\n successors and assignees. No amendment to this Agreement shall become\n effective unless made in writing and signed by the Parties.\n\n11.4 Severability\n\n If any provision herein becomes illegal, invalid or unenforceable at\n any time but do not have fundamental effect on the validity of this\n Agreement, such provisions shall not invalidate the remaining\n provisions of this Agreement.\n\n11.5 Effectiveness and Term\n\n The term of this agreement shall be one year, starting from July 1,\n 2000 and expiring on June 30, 2001; provided that the provisions in\n connection with the \n\n\n 6\n 8\n settlement of the revenues sharing of sales of added value for\n \"Shenzhouxing\" Value-adding Card shall come into effect on February 1,\n 2000 and expire on June 30, 2001. This agreement shall be automatically\n extended for one year unless either party terminates this Agreement by\n a written notice to the other Party to that effect three months prior\n to the expiration of this Agreement, and the times of such extension\n shall not be limited. Neither Part may not unilaterally terminate this\n Agreement during the term of this Agreement without the other Party's\n prior written consent thereto.\n\n11.6 Entire Agreement\n\n This agreement constitutes the entire agreement between the Parties\n with respect to the subject matter of this Agreement, and supersedes\n any and all discussions, negotiations and agreements between them\n regarding the same prior to the execution of this Agreement.\n\n11.7 Notices\n\n (1) Any notices or other communications required to be given under\n this Agreement shall be delivered by mail (registered mail\n (postage pre-paid) or internationally recognized courier\n services) or by facsimile or telex, confirmation by express\n mail requested, to the above listed addresses of the Parties\n or to other addresses as a Party may notify the other Party\n from time to time in the same manner.\n\n (2) Any notices or communications required to be given under this\n Agreement shall be deemed to have been delivered five days\n after the date of post (as evidenced by the date of the\n postmark) by registered mail (postage pre-paid), or three days\n after the date of delivery by an internationally recognized\n courier services provider, or three days after the date of\n delivery by facsimile or telex (to be confirmed by express\n mail).\n\n11.8 Counterparts\n\n This Agreement is signed in four counterparts. Party A and Party B will\n keep two copies each. All the executed copies of this Agreement have\n the same legal force and effect.\n\n IN WITNESS WHEREOF, the Parties have caused this Agreement to be signed\nby their duly representatives in Beijing on the date first above written.\n\n\n\n<\/pre>\n
\n\nCHINA MOBILE COMMUNICATIONS CORPORATION CHINA MOBILE (HONG KONG) LIMITED
\n
\nBy: s\/Lu Xiangdong By: s\/Wang Xiaochu
\n Authorized Representative Authorized Representative
\n Title: Title:
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