Shareholders Agreement - NCsoft Corp. and Sina.com
EXECUTION VERSION
SHAREHOLDERS AGREEMENT
BETWEEN
NCSOFT CORPORATION
AND
SINA.COM
November 22, 2002
<PAGE>
SHAREHOLDERS AGREEMENT
This Shareholders Agreement (including all appendices hereto, this "Agreement"
or this "Shareholders Agreement") is made on November 22, 2002 by and between:
1. NCSOFT CORPORATION (hereinafter "NCsoft")
Legal Address: Seung Kwang Building, 143-3 Samsung-dong, Kangnam-ku
Seoul, Republic of Korea ("Korea")
Legal Representative: Kim Taek-Jin, President & CEO
Nationality of Legal Representative: Korean
2. SINA.com (hereinafter "Sina")
Legal Address: 2988 Campus Drive, Suite 100
San Mateo, CA 94403, USA
Legal Representative: Daniel Mao, CEO
Nationality of Legal Representative: Chinese
Sina and NCsoft are hereinafter referred to collectively as the "Parties," and
each individually as a "Party."
RECITALS
WHEREAS, SINA is a company established under the laws of the Cayman Islands and
of which shares are listed in NASDAQ;
WHEREAS, Sina and NCsoft desire to establish a joint venture company (the
"Company") together in the People's Republic of China ("China" or the "PRC") and
have the Company market and distribute, through a duly licensed ICP company, the
massively multi-player online role playing game Lineage and other on-line game
software in the Territory (as defined below) on the terms and conditions set
forth herein; and
WHEREAS, NCsoft and the Company will enter into a Game License Agreement,
whereby NCsoft will grant an exclusive license relating to Lineage in the
Territory pursuant to the terms and conditions specified therein.
NOW, THEREFORE, after amicable discussions and negotiations, in accordance with
the principles of equality and mutual benefit, and subject to the PRC Law On
Wholly Foreign Owned Enterprises and other relevant laws and regulations and
policies of China, the Parties have executed this Agreement under the terms and
conditions provided hereunder.
-1-
<PAGE>
CHAPTER 1. GENERAL PROVISIONS
Article 1. Definitions
Unless the articles of this Agreement provide otherwise, the following terms
shall have the meanings set out below:
1.1 "Affiliate" means (i) any company or economic entity in which any Party
holds 25% or more of equity or voting power, or substantial control by any
means (collectively "Control"); (ii) any company or economic entity which
Controls any Party; or (iii) any company or economic entity which is under
common Control with any Party.
1.2 "Approval Authority" means the Chinese government, or institutions or
departments thereof that is legally competent to exercise powers of
approval over the effectiveness, implementation and alteration of this
Agreement or the Articles of Association of the Company.
1.3 "Business Day" means any day other than a Sunday, a Saturday or any day on
which banks in either in China or Korea are required to be closed.
1.4 "Business License" means a license for the establishment of the Company,
which is referred to as "[(CHINESE CHARACTERS)]" in Chinese.
1.5 "Chinese Laws" means the PRC Law On Wholly Foreign Owned Enterprises, the
PRC Company Law, the PRC Contract Law and other promulgated and publicly
available relevant PRC laws and regulations.
1.6 "Company" means Shanghai NC-Sina Information Technology Co., Ltd., a
limited liability company to be established as a joint venture company of
the Parties under this Agreement. For the avoidance of doubt, while the
Company will be a joint venture company as to between the Parties, it will
constitute a wholly foreign owned enterprise for the purpose of PRC law.
1.7 "Dispatched Personnel" means personnel who are dispatched by NCsoft to the
Company and work at the Company on a regular basis for a specified period
pursuant to Article 26.
1.8 "Effective Date" means the date on which this Agreement is executed by the
Parties.
1.9 "Establishment Date" means the date when the Business License of the
Company is issued.
1.10 "ICP Company" means a company duly established under the laws of the
Territory that has duly obtained an Internet Contents Provider ("ICP")
license and other necessary licenses or approvals (if any) from the
relevant Chinese government authorities that are
-2-
<PAGE>
necessary for its provision of on-line game services (including those
relating to Lineage) to end users located throughout the Territory, in
each case to the satisfaction of NCsoft and Sina.
1.11 "IPO" means an initial public offering of equity in the Company on a
reputable stock exchange mutually agreed on between the Parties.
1.12 "Lineage" means the massively multiplayer on-line role playing game known
as Lineage created by NCsoft and operated through the Lineage software
package.
1.13 "Lineage Game License Agreement" means an agreement whereby NCsoft grants
an exclusive license relating to Lineage to the Company in the Territory
pursuant to the terms and conditions specified therein.
1.14 "Publishing Company" means a company duly established under the laws of
the Territory that has duly obtained all necessary licenses or approvals
from the relevant Chinese government authorities (including those required
under the Regulations on Publication Control promulgated by the PRC State
Council) that are necessary for its publication and distribution of books,
CDs and other publishing media and distribute them to end users located
throughout the Territory, in each case to the satisfaction of NCsoft and
Sina.
1.15 "Territory" means the People's Republic of China, excluding Hong Kong and
Taiwan.
CHAPTER 2. NAME OF COMPANY,
LEGAL ADDRESS AND FORM OF ORGANIZATION
Article 2. Name of the Company and its Legal Address
2.1 The name of the Company shall be as follows:
in Chinese: [(CHINESE CHARACTERS)]
in English: Shanghai NC-Sina Information Technology Co., Ltd.
2.2 The legal address of the Company shall be the address registered in the
Business License.
Article 3. Form of Organization of the Company
3.1 The Company shall be a limited liability company with independent status
of a legal entity.
-3-
<PAGE>
3.2 Each party shall be liable to the Company within the limit of the capital
subscribed by it. the Company shall satisfy its debts and obligations with
all of its assets. Unless as specifically provided herein, none of the
Parties shall be liable for additional funding or contribution to the
Company for debts incurred by the Company.
3.3 The Company may, with approval of the relevant Chinese government
authorities, establish branches within the Territory.
3.4 The Parties shall make best efforts to obtain the Business License for the
Company and complete the capital contribution by March 31, 2003.
Article 4. Registration of the Company
Sina shall, as soon as practicable after the Effective Date, but in no event
later than four (4) months from the Effective Date, complete all procedures for
registration of the Company with the State Administration of Industry and
Commerce of China or its authorized office.
CHAPTER 3. PURPOSE, SCOPE AND SCALE OF PRODUCTION
OF THE COMPANY
Article 5. Purpose of the Company
The Parties shall endeavor, in accordance with the principles of mutual trust,
equality and mutual benefit, to cause the Company to (i) adopt the most advanced
and practical technology with respect to the development of its
services/products; (ii) induce the developed management skill; (iii) provide
services/products which are competitive in terms of function, quality, cost and
price; (iv) when practicable, consider the Parties as candidate for a business
partner; and (iv) realize the optimal economic benefits.
Article 6. Scope of Business
The scope of the business of the Company shall be as follows:
6.1 Research and develop computer hardware equipment, accessory equipment and
related network equipment.
6.2 Develop and manufacture computer software and network (online) software.
-4-
<PAGE>
6.3 Sell its own products.
6.4 Transfer its own technology.
6.5 Provide related technical consultation services and customer services.
CHAPTER 4. RESPONSIBILITIES AND OBLIGATIONS OF PARTIES
Article 7. Responsibilities and Obligations of the Parties
7.1 Contribution of Capital
a. Sina : Subject to the satisfaction (or waiver) of each of the
conditions set forth in Article 8, Sina shall make its capital
contribution in time in accordance with Article 10 hereof.
b. Ncsoft : Subject to the satisfaction (or waiver) of each of the
conditions set forth in Article 8, NCsoft shall make its capital
contribution in time in accordance with Article 10 hereof.
7.2 Sina shall timely and duly fulfill the following obligations and
responsibilities at its own advance expense (subject to reimbursement by
the Company in accordance with Article 47.4):
a. File applications and obtain all approval, adoption of project and
other matters with the relevant Chinese authorities concerning (i)
the execution and performance of this Agreement, the Lineage Game
License Agreement, the character and publishing agreement for
Lineage, and any other related agreements, (ii) the Articles of
Association of the Company and (iii) the establishment of the
Company; provided that Sina shall prepare each application or other
filing sufficiently in advance of the relevant due date and provide
it to NCsoft for review and consent and Sina's filing of such
application or other filing shall be subject to NCsoft's consent;
and
b. Procure for the Company any and all necessary governmental
permission, license and registrations for intended business of the
Company; provided that Sina shall prepare each application or other
filing sufficiently in advance of the relevant due date and provide
it to NCsoft for review and consent and Sina's filing of such
application or other filing shall be subject to NCsoft's consent;
Notwithstanding the foregoing paragraphs (a) and (b), Sina will not be
liable for the failure to obtain any government license, approval, etc.
specified such paragraphs if such failure occurred despite Sina having
taken all necessary and reasonable steps
-5-
<PAGE>
(including filing of the necessary applications) and was caused by
government action or other event that is beyond Sina's control. NCsoft
shall provide to Sina such information as reasonably requested by Sina and
is necessary for the government applications or filings in paragraphs (a)
or (b) above and shall review Sina' drafts of such applications or filings
and provide consents, comments or other feedback thereon as promptly as
practically possible.
In addition to the foregoing, Sina shall (subject to reimbursement by the
Company of any costs and expenses reasonably incurred on behalf of the
Company in the performance thereof):
c. Assist the Company in acquiring any and all necessary governmental
permission, license and registrations for products/services of the
Company;
d. Assist the Company in obtaining the approval for new product/service
development or project proposals from the relevant Chinese
authorities;
e. Coordinate and promote the relationship between the Company and the
relevant Chinese government authorities;
f. Assist the Company in obtaining possible preferential policies or
exemptions from the Chinese government with respect to taxes and
other charges, and assist in completing the customs clearance
procedure with respect to all the materials and equipment that are
imported for the construction, facilitation and operation of the
Company;
g. Assist the Company as requested in purchasing local materials,
equipments, supplies and services in China with the best possible
quality and on the most favorable terms;
h. Assist the Company obtain the best possible preferential treatment
in terms of taxation, duties, foreign exchange control and RMB or
foreign exchange loans from financial institutions of China;
i. Assist the Company in obtaining water supply, power supply,
transportation and other utility services, and arrange for the
design, construction and facilitation of the buildings and other
engineering service facilities of the Company on an as-needed basis;
j. Assist the personnel of the Company in obtaining entrance visas and
work permits on a timely basis and in meeting their accommodation
and business trip needs within China as well as assist on other
relevant matters in China;
k. Assist the Company in recruiting qualified local Employees;
-6-
<PAGE>
l. Undertake its best efforts to obtain the preferential treatment for
the Company in terms of use of land; and
m. Handle other matters entrusted by the Company.
NCsoft shall provide Sina with such information as reasonably requested by
Sina and is necessary for Sina's performance of paragraphs (c) - (m)
above.
7.3 NCsoft shall have the following responsibilities and obligations (subject
to reimbursement by the Company of any costs and expenses reasonably
incurred on behalf of the Company in the performance thereof):
a. Subject to the terms and conditions of the Lineage Game License
Agreement to be separately executed by the Company and NCsoft, grant
an exclusive license relating to Lineage to the Company in the
Territory;
b. Subject to the terms and conditions of the Lineage Game License
Agreement to be separately executed by the Company and NCsoft, make
its best effort to assist the Company in proceeding with the
localization of Lineage;
c. Assist the Company in purchasing the equipment within and outside
China at the best quality and conditions as possible;
d. Provide assistance for the Company's operation in accordance with
Article 26; and
e. Handle other matters entrusted by the Company.
Sina shall provide NCsoft with such information as reasonably requested by
NCsoft and is necessary for NCsoft's performance of paragraphs (a) - (e)
above.
Article 8. Conditions Precedent to Capital Contribution
The Parties' obligation to make capital contribution to the Company hereunder
shall be conditioned on the satisfaction (or the relevant Party's waiver) on or
prior to the date of capital contribution:
a. Sina obtaining and complying with all government licenses,
approvals, and consent set forth under Article 7.2 that the Parties
consider essential for the Company's intended business;
b. NCsoft obtaining all Korean government consent, acceptances, etc.
necessary for its investment in the Company;
-7-
<PAGE>
c. each Party obtaining its internal corporate approval;
d. agreement by the Parties on the Articles of Association of the
Company that are prepared consistently with the terms and conditions
of this Agreement and approval by the Approval Authority of such
Articles of Association;
e. the execution of the Lineage Game License Agreement between NCsoft
and the Company in the form and substance satisfactory to NCsoft and
Sina (including a detailed remittance mechanism that is designed to
ensure the smooth remittance of royalty payments out of China to the
satisfaction of NCsoft);
f. in the case of Sina, NCsoft is in compliance with all of its
covenants and obligations hereunder in material respect and all of
NCsoft's material representations and warranties contained herein
are accurate as of the date of the contribution;
g. in the case of NCsoft, Sina is in compliance with all of its
covenants and obligations hereunder in material respect and all of
NCsoft's material representations and warranties contained herein
are accurate as of the date of the contribution;
h. the Parties have designated a mutually satisfactory ICP Company and
a license agreement and a technical services agreement relating to
Lineage to be signed by the Company and the said ICP Company have
been agreed upon and is ready to be signed by all relevant parties
in the form and substance satisfactory to the Parties (such
agreements collectively referred to as the "ICP Agreements");
i. the Parties has designated a mutually satisfactory Publishing
Company in the Territory for publishing and distribution of CDs
containing the Client Software (as defined in the Lineage Game
License Agreement) for Lineage to end users and a publishing and
distribution agreement to be signed by the Company and the said
Publishing Company has been agreed upon and is ready to be signed by
all relevant parties in the form and substance satisfactory to the
Parties; and
j. NCsoft has received a legal opinion from its legal counsel in the
form and substance satisfactory to it with respect to the legality
and enforceability of the contemplated transactions.
CHAPTER 5. TOTAL AMOUNT OF INVESTMENT AND REGISTERED CAPITAL
Article 9. Total Amount of Investment and Registered Capital
-8-
<PAGE>
9.1 The total amount of investment of the Company shall be US$5 million and
the registered capital of the Company shall be US$5 million.
9.2 The exchange rate between US$ and RMB shall be the standard exchange rate
published by the People's Bank of China on the date of contribution (i.e.,
the date when the contribution is made to the Company's account).
Article 10. Amount, Manner and Time limit of Contribution
The registered capital of the Company shall be contributed by the Parties in the
following manner:
10.1 Amount and Manner of Contribution
a. Sina shall subscribe for interest in the Company for US$2.55 million
to be contributed in the form of foreign exchange or RMB cash.
b. NCsoft shall subscribe for interest in the Company for US$2.45
million to be contributed in the form of foreign exchange.
10.2 Time Limit for the Capital Contribution and the liability of the
Contributing Party
a. The time limit for the capital contribution shall be as follows:
b. The capital contribution described above shall be completed by the
Parties at the same time within 10 Business Days from the
Establishment Date (subject to Article 8).
c. Contribution in cash shall be paid to the bank account designated by
the Company, within the period set forth above.
Article 11. Verification of Contribution
Immediately after the Parties have made their respective contribution to the
Company, the completion of such contribution shall be verified by a Chinese
certified public accountant agreed by the Parties, who will issue a Capital
Verification Report thereon.
Article 12. Shareholding Ratio
After the Parties have completed their capital contribution in accordance with
Article 10 above, the shareholding ratio of the Company shall be as follows:
-9-
<PAGE>
Sina: 51%
NCsoft: 49%
Article 13. Certificate of Capital Contribution and Exercise of Rights as
Shareholder
13.1 After the Parties have completed their respective capital contribution in
accordance with Article 10, the Company shall, within ten (10) days after
the Capital Verification Report is issued, issue a Certificate of Capital
Contribution to each Party, reflecting the amount of such Party's paid-in
capital contribution.
13.2 Each Party shall exercise its rights as shareholder of the Company
including without limitation, the right to request the payment of
dividend, the right of first refusal in purchase of equity, the right to
participate in capital increases, the right to request the distribution of
remaining assets, etc., in proportion to their actual contribution to the
registered capital of the Company.
Article 14. Transfer of Equity
14.1 Until the earlier of IPO or 3 years after the Parties' capital
contribution to the Company under Article 10, none of the Parties shall be
allowed to sell, transfer, provide as mortgage or pledge, donate or
otherwise dispose of all or part of its equity in the Company without the
written consent of the other Party. At all times, each Party shall ensure
that no part of its equity in the Company is subject to any provisional
court decision or any foreclosure procedure (including without limitation
any proceedings relating to attachment, auction, bidding, etc.) initiated
by any third party.
14.2 In case any Party intends to transfer all or part of its equity in the
Company to a third party, to the extent required under Chinese law, such
transfer shall require, the approval of the Approval Authority. When any
Party transfers all or part of its equity in the Company, the other Party
shall have the right of first refusal to purchase the same, as set forth
in Article 14.3 below. In the event that any Party is prevented from
exercising this right of first refusal by operation of applicable laws and
regulations, such Party may designate any third party permitted under the
applicable laws and regulations, and, with the other Party's consent
(which consent may not be withheld unreasonably), let such third party
purchase the equity.
14.3 When any Party (the "Selling Party") intends to transfer in any way all or
any part of its equity in the Company to a third party (to the extent
permitted by law), it may only do so after offering such equity to the
other Party (i) for a price equal to or less than that offered or to be
offered to such third party and (ii) with other terms and conditions of
sale being the same as or more favorable to the purchasing Party, when
compared to
-10-
<PAGE>
those offered to the third party. The other Party shall have thirty (30)
days to accept such offer of the Selling Party. If the other Party refuses
or fails to provide notice of acceptance with respect to the offered
equity within thirty (30) days of such offer, the Selling Party shall then
be free to sell the remaining equity to the third party at the same or a
higher price and on the same (or more favorable to the seller) terms and
conditions of sale as compared to those offered to the other Party. The
Selling Party may sell such equity to such third party as provided in the
preceding sentence, for a period of six (6) months after the other Party's
refusal or failure to purchase such equity within the said thirty (30)
days. After such six (6) month period, the foregoing procedure shall be
repeated for any subsequent sale.
14.4 In the event that any equity in the Company is sold or transferred in
accordance with Article 14.3 above to a third party other than any of the
Parties, such third party shall execute a prior written commitment to
accept all of the terms and conditions of this Agreement.
14.5 Even if any Party transfers all of its equity in compliance with the
conditions of this Article 14 or ceases to be the shareholder of the
Company for whatever reason, such Party shall not be relieved of its
confidentiality obligations hereunder, which shall remain effective for
the period set forth in Article 36 below.
Article 15. Increase of Registered Capital
15.1 Any increase of the registered capital of the Company or any issuance of
equity-related debt securities shall require a written agreement signed by
all of the Parties and unanimous approval of the Board of Directors.
However, in the event that the increase of the registered capital of the
Company is reasonably necessary for any reason including, without
limitation, the necessity of expansion of the Company's production scale,
urgent necessity of operation fund and other reasons, each Party shall not
unreasonably refuse to agree on the increase of registered capital. The
Parties hereby acknowledge and agree that in the event that
notwithstanding the necessity for increase of registered capital, not all
of the Parties may be able to participate in such increase of registered
capital, any Party who is able to make the capital contribution may do so
in the place of the other Party, which may lead to the adjustment of
shareholding structure and composition of the Board of Directors.
Furthermore, in the event that any Party is prevented from making such
capital contribution by operation of applicable laws and regulations, such
Party may designate any third party permitted under the applicable laws
and regulations, and with the other Party's consent, let such third party
make the capital contribution.
15.2 Any increase in the registered capital of the Company shall be contributed
by the Parties pro-rata in proportion to their shareholding ratio. In the
event that any Party fails to subscribe for all or part of its share of
the increase in violation of agreement on capital contribution, the other
Party may subscribe for such non-subscribed portion, and the shareholding
structure and composition of the Board of Directors shall be adjusted
-11-
<PAGE>
accordingly. Furthermore, in the event that any Party is prevented from
making such capital contribution by operation of applicable laws and
regulations, such Party may designate any third party permitted under the
applicable laws and regulations, and, with the other Party's consent, let
such third party make the capital contribution.
15.3 Any increase in the registered capital and any change in the shareholding
ratio (including without limitation any change in the shareholders) of the
Company shall be submitted to the original Approval Authority for approval
thereof and shall also be duly registered with the relevant authorities.
Article 16. Loans to the Company and Procurement of Other Funds
In principle, the Company itself shall obtain loans from financial institutions
to provide additional funding necessary to meet any shortfall between the total
amount of investment and registered capital or to be used as working capital or
for any other needs of the Company.
CHAPTER 6. BOARD OF DIRECTORS
Article 17. Establishment of the Board of Directors
The Company shall have a Board of Directors. The Establishment Date shall be the
date on which the Board of Directors under this Agreement is established.
Article 18. Powers of the Board of Directors
The Board of Directors shall be the highest authority of the Company and shall
have power to decide all major issues of the Company and be in charge of overall
supervision of the Company.
Article 19. Composition of the Board of Directors
19.1 The Board of Directors shall consist of five (5) directors, including one
(1) Chief Executive Officer (CEO) who shall also serve as the General
Manager of the Company, one (1) Chairman, and one (1) Vice Chairman.
19.2 Each of NCsoft and Sina shall be entitled to appoint the number of
directors as proportionately to its shareholding ratio as possible. The
Party entitled to appoint a majority of directors shall be entitled to
appoint the Chairman and the General Manager (CEO).
-12-
<PAGE>
19.3 The Board of Directors shall initially be constituted as follows: five (5)
directors, three (3) of which shall be appointed by Sina, including the
Chairman and the General Manager (CEO), and two (2) of which shall be
appointed by NCsoft, including the Vice Chairman. The director nominated
by Sina to serve as the General Manager and CEO shall have qualifications
satisfactory to both NCsoft and Sina in terms of experiences in the game
industry, communication capability (in English as well as Chinese),
networking capability and marketing mind. Sina's appointment of the
director who will serve as the General Manager (CEO) shall be subject to
NCsoft's approval. The directors appointed by NCsoft shall include
NCsoft's incumbent CEO and the directors nominated by Sina shall include
the incumbent CEO of Sina.
Article 20. Term and Powers of the Directors
20.1 Each director shall be appointed for a term of three (3) years and may,
upon the expiration of his term, serve consecutive terms if re-appointed
by the Party that originally appointed him. If any director fails to take
office during his term or is unable to perform his duties or there is any
other reason, the Party which originally appointed him may replace him by
giving 5 Business Days' prior written notice to the Company and the other
Party, and the substituted director shall serve for the outgoing
director's remaining term.
20.2 The Chairman shall be the legally authorized representative of the
Company. The Chairman shall exercise his authority within the limits
prescribed by the Board of Directors and may not under any circumstances
contractually bind the Company or otherwise take any action in excess of
his scope of powers regulated by the Board of Directors.
20.3 The Chairman and Vice Chairman shall have right to examine the
implementation of the resolutions of the Board of Directors in accordance
with decisions of the Board of Directors.
Article 21. Powers of the Board of Directors
21.1 Resolutions involving the following matters may only be adopted upon the
unanimous affirmative vote of each and every appointed director:
a. Publishing (whether directly or via licensee) of an on-line game
other than Lineage or other games developed or published by NCsoft
during the Non-Competition Period (as defined hereinbelow) (provided
that, after the Non-Competition Period, this item will be subject to
Board approval by a majority vote pursuant to Article 21.2), or
involvement in a business that falls outside the scope of business
of the Company set forth under Article 6;
-13-
<PAGE>
b. Investment or other expenditure, taken individually (but including
all related investments or expenditures), in excess of US$ 100,000
or equivalent;
c. Approval of the annual working report, final finance accounting
report or financial statements for the previous fiscal year and
approval of the annual production and operation plan and financial
budget plan for the following fiscal year;
d. Approval of incentive stock option plan;
e. Increase or decrease in the number of directors or statutory
auditors;
f. Amendment of the Articles of Association of the Company or the
adoption or amendment of any internal regulations;
g. Any increase or decrease of the registered capital of the Company,
or any issuance of securities;
h. Merger, consolidation, split, major acquisitions, disposition of
major assets of the Company or change of the Company's business
form;
i. Dissolution, extension of term or liquidation of the Company (with
the exception of cases referred to in items a., c., and g. of
Article 38.1);
j. Any incorporation or dissolution of a joint venture company or
subsidiary in which the Company owns interest;
k. Any establishment, relocation or closing of a branch office;
l. Approval of a director's right to hold office in a competitor of the
Company and transactions between the Company and a director;
m. Any establishment of a committee within the Board of Directors;
n. Any approval of investment in another person or economic entity in
excess of US$ 100,000 in any one instance;
o. Any borrowing or guarantee of monetary debt in excess of US$100,000;
p. Settlement of litigation and decisions with respect to any legal or
administrative proceedings (other than those relating to litigation
or legal proceeding between the Company and NCsoft for NCsoft's
breach of Section 10(d) of the Lineage Game License Agreement), if
such settlement or decision involves an amount in
-14-
<PAGE>
excess of US$ 100,000 or may otherwise affect the Company's business
adversely;
q. Any major decisions relating to marketing which will involve an
expenditure in excess of US$ 100,000 in any one instance;
r. Acquisition of all or important part of the business of another
person or economic entity;
s. Approval of any expenses in excess of US$ 100,000 in any one
instance;
t. Appointment and replacement of an outside accounting auditor
described in Article 31;
u. Acquisition of assets with a value of 20% or more of the Registered
Capital of the Company at the time of such acquisition;
v. Declaring dividends to the Parties; and
w. any other items requiring a unanimous vote under Chinese law.
21.2 All resolutions (including without limitation the items listed below) of
the Board of Directors other than those listed in Article 21.1 above shall
be adopted upon the affirmative vote of more than half (1/2) of the
directors present at the Board meeting:
a. Publishing (whether directly or via licensee) of an on-line game
other than Lineage or other games developed or published by NCsoft
after the Non-Competition Period;
b. Appointment or dismissal of the General Manager (and CEO).
Appointment, dismissal or decision on compensation of the Vice
General Manager, the Chief Finance Officer or other officers at the
recommendation of the General Manager; and
c. Settlement or litigation and decisions with respect to legal
proceeding, in each case between the Company and NCsoft for NCsoft's
breach of Section 10(d) of the Lineage Game License Agreement,
provided that directors appointed by NCsoft shall be precluded from
voting on such a matter.
Article 22. Convention of Board Meeting
22.1 The Company shall convene the first meeting of Board of Directors within
thirty (30) days of the Establishment Date. At the first Board meeting,
the General Manager shall
-15-
<PAGE>
prepare and submit to the Board of Directors a business plan (an annual
working plan) approved by the Parties for the period of two (2) years from
the Establishment Date.
22.2 The Board meeting shall be held at least once each calendar quarter and
the Board meeting shall be called and presided by the Chairman and
conducted in English. Upon the request of two (2) or more of the appointed
directors, or the General Manager, the Chairman shall convene an
extraordinary Board meeting in order to review and approve the matters
submitted by such two (2) or more of the appointed directors, or the
General Manager.
22.3 The Chairman shall give fifteen (15) days' prior written notice in English
to the directors about the agenda, time and location of the meeting of the
Board of Directors. Within five (5) days from receipt of such notice, the
directors shall confirm receipt of such notice in writing to the Chairman.
Each Party shall make their best efforts to cause the directors appointed
by such Party to attend the Board meeting. The Chairman shall give notice
to the directors about the details of the subject matter of the Board
meeting five (5) days prior to the date of the meeting. In special cases,
and with the written consent of two-thirds (2/3) or more of the appointed
directors, the fifteen (15)-day notice period for the Board meeting may be
shortened. The Chairman shall determine the procedure for carrying out the
Board meeting. Resolutions may be adopted at the Board meeting only with
respect to the items of which the directors have been notified in advance
in the aforementioned manner, unless all attending directors unanimously
agree to add more items.
22.4 A Board meeting may be convened only with the attendance of two thirds
(2/3) or more of the appointed directors. If the number of directors
attending the duly notified Board meeting is not sufficient to form a
required quorum (of 2/3 or more), then such meeting shall be immediately
adjourned and rescheduled and written notice of such rescheduled meeting
shall be delivered to the directors not less than five (5) days in advance
of the rescheduled meeting. If the number of directors who attended such
rescheduled meeting is not sufficient to constitute a quorum under the
first sentence of Article 22.4, but is more than one-half (1/2) of all
appointed directors, then a quorum shall be deemed to exist for purposes
of the rescheduled meeting notwithstanding the first sentence of Article
22.4. Any director unable to attend a meeting of the Board of Directors
may, by executing an appropriate power of attorney, appoint a proxy to
attend and vote in his place, and such proxy shall be recognized as the
duly authorized representative of the director.
22.5 The Board of Directors shall prepare the minutes of Board meeting setting
forth the decisions made at such meeting, and after being signed by all
attending directors and proxies, keep such minutes in the records of the
Company.
22.6 At the request of at least two-thirds (2/3) of the appointed directors, a
resolution of the Board meeting may be adopted by votes through facsimile,
letters or other written form. Such resolution may be signed by the
directors individually and shall have the same
-16-
<PAGE>
force and effect as a resolution adopted at a formally convened Board
meeting (provided, however, that such resolution shall be valid on the
condition that such resolution was made in accordance with Article 21),
and in such case, all directors shall be deemed to have attended the
relevant Board meeting.
22.7 All resolutions and minutes of the Company shall be prepared both in the
Chinese and English language.
22.8 In the case of a deadlock between the directors appointed by Sina on the
one hand and the directors appointed by NCsoft on the other, over any
significant matter before the Board of Directors, and such matter shall
remain unresolved for a period of thirty (30) days, such matter shall be
referred immediately to the CEOs of each of the Parties or other duly
authorized representatives of the Parties for resolution. Each of the
Parties shall endeavor to resolve any disagreement in the best interests
of the Company. In the event that the representatives of the Parties are
unable to resolve the deadlocked matter for thirty (30) days after the
referral to them, the matter shall be referred to arbitration as provided
under Article 43 hereof and shall also constitute valid grounds for the
dissolution of the Company.
Article 23 Responsibilities of the General Manager and Other Officers
23.1 The General Manager (who shall also be a director and CEO) shall be
directly responsible toward the Board of Directors and be responsible to
carry out the various resolutions of the Board of Directors and for the
day-to-day operation and management work of the Company. His main
responsibilities shall include (if relevant, subject to the resolution of
the Board of Directors):
a. Taking such actions as necessary or appropriate to carry out the
resolutions of the Board of Directors;
b. Requesting the convening of a meeting of the Board of Directors;
c. Submitting the agenda to be approved by the Board of Directors;
d. Preparation of the annual working report, financial budget plan and
financial statement for the previous year;
e. Preparation of annual production and operation plan for the
following year;
f. Deciding the establishment, change and cancellation of the Company's
organizational institutions from the Office (Chinese characters)
level and below;
g. Deciding the allocation, appointment, removal, dismissal,
punishment, powers, remuneration, insurance and welfare treatment of
employees (but not officers);
-17-
<PAGE>
h. Deciding on engagement of any long-term legal advisor, accounting
firm and other brokerage institution for the Company; and
i. Deciding and implementing other matters necessary or appropriate for
the operation and management of the Company that are not
inconsistent with the provisions of this Agreement including Chapter
6 or resolutions of the Board of Directors.
23.2 In addition to the General Manager, the Company shall have the following
officers.
a. A business liaison officer (the official title to be decided later
by the Parties) will be dispatched by NCsoft among its employees who
NCsoft deems has sufficient experiences and skills for the Company
operations, subject to Sina's approval.
b. Chief Finance Officer who is nominated by NCsoft and Sina and
approved by the Board of Directors, will oversee and approve all
financial matters of the Company and final finance accounting report
and financial statement for the previous year and the financial
budget plan for the following year in accordance with the financial
and accounting system established by the Board of Directors.
c. Two (2) Auditors: Each of NCsoft and Sina will nominate one auditor
as non-standing officer; such auditor will not be compensated by the
Company and any expenses incurred by the auditor will be borne by
the Party that nominated such auditor.
d. Other Officers: NCsoft and Sina will make an agreement as to which
Party will be entitled to nominate other officers of the Company in
consideration of the respective shareholding ratios and the business
purpose.
CHAPTER 7. PERSONNEL MATTERS AND LABOR MANAGEMENT
Article 24. Labor Contract
All officers and employees (including Dispatched Personnel) of the Company shall
be required to execute a written employment agreement with the Company. Such
executed employment agreements shall be filed with the local labor management
authority if required under the applicable laws and regulations.
Article 25. Remuneration
-18-
<PAGE>
25.1 The salary and benefits of the employees of the Company shall be
determined by the Company and provided for in the employment agreement, in
accordance with the relevant regulations of China, based on the specific
situation of the Company.
25.2 The Company shall be responsible for obtaining entrance and exit visas or
work permits, as may be necessary, for the Dispatched Personnel from
NCsoft.
Article 26. Dispatched Personnel
26.1 After the Establishment Date, NCsoft will dispatch the Dispatched
Personnel to the Company to support the operations of the Company as
NCsoft finds necessary for the Company's operation.
26.2 NCsoft and the Company will enter into separate agreements with respect to
the remuneration and conditions for the Dispatched Personnel, in
consideration of the actually incurred expenses.
Article 27. Staffing
Sina will provide the Company with staffing necessary for the Company's basic
operation and launch and maintenance of Lineage in the Chinese market.
CHAPTER 8. LABOR UNION
Article 28. Establishment of the Labor Union and its Protection
Chinese employees of the Company shall have right to establish a labor union and
carry out labor union activities in accordance with the PRC Labor Union Law, the
Articles of Association of Chinese Labor Union, the PRC Law On Wholly Foreign
Owned Enterprises and relevant regulations.
CHAPTER 9. TAXES, FINANCE AND AUDIT
Article 29. Taxes
29.1 The Company shall pay taxes in accordance with the provisions of relevant
Chinese laws and regulations and shall apply for any preferential tax
treatment provided by relevant laws and regulations of China.
-19-
<PAGE>
29.2 The Company shall withhold personal income taxes for all officers and
employees (including the Dispatched Personnel) in accordance with
provisions of relevant laws and regulations of China (including the tax
treaty entered into by Korea and China).
Article 30. Financial System
30.1 The Company shall establish a complete financial system in accordance with
the relevant laws and regulations in China.
30.2 The fiscal year of the Company shall begin from January 1 each calendar
year and end on December 31 of the same year in accordance with the
Gregorian calendar.
30.3 All internal accounting documents, accounts and statements of the Company
shall be written in Chinese and English.
30.4 The Company will provide Sina with such accounting and financial
information that is reasonably requested by Sina for preparation of
consolidated financial statements for Sina's affiliated group in
accordance with U.S. GAAP; if the Company incurs any additional expenses
in connection with the provision of such information, Sina shall reimburse
such expenses.
Article 31. Audit
An accounting firm registered in China that is nominated by Sina among the
reputable international accounting firms shall be appointed as the long term
outside auditor of the Company.
CHAPTER 10. PROFIT DISTRIBUTION
Article 32. Principle and Procedure for Profit Distribution
The profit earned by the Company after payment of income taxes in accordance
with applicable tax laws shall be utilized for the following purposes and
schedule as determined by the Board of Directors:
a. Making up losses of the Company in the previous years;
b. Setting up a reserve fund, enterprise development fund, and
employees reward and welfare fund; and
c. Making a dividend payment to the Parties in proportion to their
respective actual contribution to the registered capital of the
Company.
-20-
<PAGE>
Article 33. Plan for Profit Distribution
The Parties shall be entitled to receive its portion of any profit distribution
in US dollars. The Company shall exchange money to US dollars and remit such
money to the Parties for such purpose.
CHAPTER 11. DURATION OF THE COMPANY
Article 34. Duration
34.1 The duration of the Company shall be thirty (30) years.
34.2 In the event that the Parties agree to extend the duration of the Company,
a Board of Directors resolution shall be adopted unanimously consenting to
such extension, and an application in writing for such extension shall be
made to the authority that originally approved the Company, six (6) months
prior to the expiration of the duration of the Company. The duration of
the Company shall be deemed extended if approved by such authority, and
such extension shall be registered with the registration management
department with which the Company was originally registered.
CHAPTER 12. INSURANCE
Article 35. Insurance
The Company shall take out necessary insurances with insurance companies in
China in conformity with prevailing business practices.
CHAPTER 13. CONFIDENTIALITY
Article 36. Confidentiality
Each Party hereby agrees to keep strictly confidential any and all important
business secrets obtained from any of the other Party or the Company in the
course of execution and performance of this Agreement or any other agreements
related thereto, and shall not use or show or disclose such business secrets to
any third party (except as compelled by the government, court, arbitration
tribunal or stock exchange under requirement of any law or regulation, in which
case notice shall be given to the Party which owns the right to such business
secrets and consultations shall be made with such Party in order to reduce the
extent of disclosure) during the term of this
-21-
<PAGE>
Agreement and for five (5) years thereafter, except with respect to business
secrets which have been legally made public, or disclosed with the approval of
the relevant shareholder or the Company or under any explicit provisions of the
relevant agreements.
CHAPTER 14. AMENDMENT AND TERMINATION OF THE AGREEMENT,
DISSOLUTION AND LIQUIDATION OF THE COMPANY
Article 37. Amendment of the Agreement
No amendment of this Agreement shall be valid until and unless agreed by the
Parties in writing and, if necessary, approved by the Approval Authority.
Article 38. Dissolution of the Company
38.1 In any one of the following cases, the Company shall be dissolved:
a. The duration of the Company expires;
b. The accumulated losses of the Company exceed its registered capital
and the Company is unable to continue its operations;
c. Any Party fails to perform its obligations under this Agreement or
commits any breach of this Agreement (including without limitation
the inaccuracy or falsity of its representation and warranties made
hereunder), making it practically impossible for the Company to
continue its operations, and such failure is not rectified within
sixty (60) days from notice by the non-breaching Party, and such
non-breaching Party requests the termination of this Agreement;
d. The Company fails to achieve its expected purposes and there is no
hope of development for the Company;
e. The occurrence of an event of force majeure makes it practically
impossible for the Company to continue its operations;
f. The Parties agree that it will be in the best interest of all
Parties to terminate the Company;
g. At the option of either Party, if the other Party is dissolved or
has become legally subject of bankruptcy, reorganization,
composition or other similar procedures; or
-22-
<PAGE>
h. The occurrence and failure to resolve a deadlock at the Board of
Directors as described under Article 22.8.
38.2 Except for cases of a., c., and g. above, dissolution of the Company shall
be adopted only with the unanimous affirmative votes by the Board of
Directors.
38.3 Dissolution of the Company shall be subject to the approval from Approval
Authority according to applicable laws and regulations.
Article 39. Liquidation of the Company
39.1 In case the Company is dissolved in accordance with Article 38.1 above,
the Board of Directors shall select the members of the liquidation
committee in accordance with liquidation related laws and regulations, and
implement the liquidation proceedings in accordance with the relevant
laws. The liquidation committee shall consist of four (4) members
appointed by the Parties in proportion to their then shareholding ratio;
provided that if 51:49 shareholding ratio for Sina:NCsoft is maintained
then, the liquidation committee shall be constituted as follows: (a) Sina
shall appoint two (2) members and (b) NCsoft shall appoint two (2)
members.
39.2 The Parties shall appoint an evaluator registered in China, which will
re-evaluate the remaining assets of the Company and submit the result of
such re-evaluation and all supporting material to support such
re-evaluation.
39.3 The tasks of the liquidation committee shall be to (i) conduct an
exhaustive assessment of the assets, rights and liabilities of the
Company; (ii) prepare a balance sheet and asset list; and (iii) prepare a
liquidation plan, which shall be implemented upon approval by the Board of
Directors. During the period of liquidation, the liquidation committee
shall represent the Company in all legal proceedings.
39.4 The liquidation cost and remuneration of the members of the liquidation
committee shall be paid with priority from the remaining assets of the
Company. The remaining assets after deducting the liquidation cost,
employees' salaries and labor insurance fees, overdue taxes and debts owed
by the Company (in accordance with the preceding sequence) shall be
distributed to the Parties in proportion to their actual contribution to
the registered capital of the Company. In such situation, the Party (or
the Parties) which made the capital contribution in cash shall have the
first priority to be distributed in cash in proportion to each amount of
capital contribution in cash.
39.5 After the liquidation is completed, any Party may take precedence in
purchasing the assets distributed to any other Party which such other
Party agrees to sell.
-23-
<PAGE>
39.6 After the liquidation is completed, the liquidation committee shall submit
a report on completion of the liquidation for approval by the Board of
Directors and approval of the Approval Authority. Such completion of
liquidation shall be registered with registration management authority and
Business License shall be revoked. An announcement thereof shall be made
to the public.
39.7 After the Company is dissolved, the various accounts and records of the
Company will be kept by Sina for two years, and the other Party shall have
right to read or make photocopies of such accounts and records at any
time.
39.8 In the event that the Company goes bankrupt, it shall be dealt with in
accordance with relevant laws and regulations.
CHAPTER 15. FORCE MAJEURE
Article 40. Force Majeure
In case of force majeure events which are unforeseeable and whose occurrence and
consequences are unpreventable or unavoidable, such as earthquakes, typhoons,
floods, fires, wars, severe strikes, riots and other accidents, which directly
affect the performance of this Agreement or make the performance hereof in
accordance with terms and conditions herein impossible, the Party affected by
such force majeure event shall immediately give notice to the other Party with
respect to such event, and shall, within thirty (30) days of occurrence of such
force majeure event, provide detailed information on such accident, along with
valid certificates justifying the non-performance or delayed performance of this
Agreement. Such certificates shall be issued by the notary public of the area
where such accident has occurred. Depending on the extent to which the
performance of this Agreement is affected, the Parties shall discuss and decide
whether to terminate this Agreement, or partially relieve the relevant Party of
the responsibilities hereunder, or delay the performance thereof.
CHAPTER 16. TERMINATION AND LIABILITY FOR BREACH OF AGREEMENT
Article 41. Termination and Liabilities for Breach of Agreement
41.1 Failure of any Party to make a capital contribution in full and in time in
accordance with this Agreement or to comply with non-competition
obligations provided in this Agreement shall constitute a material breach
of this Agreement. Any Party that has performed its obligation of capital
contribution or is not in breach of the
-24-
<PAGE>
non-competition obligation (as the case may be) shall have right to
terminate this Agreement and claim economic compensations from such
breaching Party.
41.2 Any Party that has failed to perform its obligations under this Agreement
or committed any breach of this Agreement (including without limitation
the inaccuracy or falsity of its representations and warranties made
hereunder) and caused damage to the other Party shall compensate the other
Party for its economic damage.
41.3 Any Party that has failed to perform its obligations under this Agreement
or committed any breach of this Agreement (including without limitation
the inaccuracy or falsity of its representation and warranties made
hereunder) and caused damage to the Company shall compensate the Company
for its economic damage.
41.4 If the conditions precedent to the capital contribution set forth in
Article 8 are not satisfied (or waived by the relevant Party (or Parties))
on or prior to May 31, 2003, this Agreement shall terminate as of such
date.
41.5 Termination of this Agreement shall not impair or invalidate the right
that any Party may have to claim damages from the other Party or Parties
that has or have breached this Agreement.
CHAPTER 17. DISPUTE RESOLUTION
Article 42. Consultation
In the event of any dispute arising from performance of this Agreement or any
dispute in connection with this Agreement, the Parties shall first try to
resolve such dispute through friendly consultations. If such dispute fails to be
resolved in such manner within ninety (90) days after the commencement of such
dispute, the Parties may apply for the arbitration.
Article 43. Arbitration
43.1 If any dispute is to be submitted to arbitration pursuant to Article 42,
it shall be submitted to the Singapore International Arbitration Center
("SIAC") for arbitration in accordance with the arbitration procedures
provided under the SIAC arbitration rules, then in effect, and such
arbitration shall be held in Singapore.
43.2 The arbitration language shall be English.
43.3 Any arbitration award shall be final and binding upon the Parties and the
Company.
43.4 In the course of the arbitration, this Agreement shall continue to be
performed except for the parts over which the Parties are in dispute and
the arbitration is pending.
-25-
<PAGE>
Except otherwise decided in the arbitration award, the cost of arbitration
shall be borne by the losing Party in the arbitration.
CHAPTER 18. APPLICABLE LAW, ENTRY INTO FORCE
Article 44. Applicable Law
The formation, validity, interpretation, performance and settlement of disputes
in respect of this Agreement shall be governed by and construed in accordance
with the laws of the PRC.
Article 45. Taking Effect of the Agreement
This Agreement shall take effect after they are executed by the Parties. If the
Approval Authority requires modifications to the provisions of this Agreement as
a condition to the issuance of the Business License or approval of the Articles
of Association, the Parties shall negotiate in good faith to enter into an
amendment to this Agreement modifying such provisions.
Article 46. Representation and Warranties
46.1 In addition to any representation and warranty made elsewhere in this
Agreement or any of its appendices, each Party represents and warrants to
the other Party as follows:
a. In the case of Sina, Sina is a company duly organized and having the
status of a legal entity under the laws of the Cayman Islands with
the full power and right to conduct its business in accordance with
its articles of association;
b. In case of NCsoft, NCsoft is a corporation duly organized and having
the status of a legal person under the laws of Korea with the full
power and right to conduct its business in accordance with its
articles of incorporation;
c. Each Party has the full power and authority to enter into and
perform its obligations under this Agreement;
d. Each Party has taken all actions necessary to authorize the signing
of this Agreement, and upon receipt of all necessary and relevant
governmental approvals, this Agreement will be necessarily enforced,
valid and binding obligations of each Party;
e. Each Party has no liability, commitment, indebtedness or obligations
which would prevent, restrict or adversely affect its ability to
perform its obligations under this Agreement or its appendices; and
-26-
<PAGE>
46.2 Each Party shall indemnify the other Party and the Company against any and
all losses that may arise if any of the representation and warranties made
above, elsewhere in this Agreement is incorrect or inaccurate, which shall
be regarded as a breach of this Agreement.
Article 47. Other Covenants
47.1 During the period from the execution of this Agreement and to the
Establishment Date ("Transition Period"), Sina will give NCsoft and its
counsel, accountants and other advisors and representatives reasonable
access to (i) employees who may be hired by the Company (including related
records and other information); (ii) land and buildings which may be used
by the Company; and (iii) other records and information, which, in the
reasonable opinion of NCsoft, are related to the transaction contemplated
by this Agreement and/or to future operation of the Company.
47.2 During the Transition Period, each Party shall give prompt written notice
to the other Party of (i) any material adverse development causing or
likely to cause a material breach of any of the representations and
warranties set forth in this Agreement or other related agreements; and
(ii) any failure of such Party to comply with or satisfy any material
covenant, agreement or condition to be complied with or satisfied by it
under this Agreement; provided that no such notice or disclosure shall be
deemed to cure any breach or failure.
47.3 During the Transition Period, the Parties agree (i) to take all actions
reasonably necessary to consummate and make effective the transactions
contemplated under this Agreement; (ii) to execute any documents which may
be reasonably necessary to carry out any of the transactions contemplated
under this Agreement; and (iii) to cooperate with each other and use its
best efforts to make all necessary filings and obtain all necessary
Chinese governmental approvals and necessary consents of third parties in
order to expedite the consummation of the transactions contemplated under
this Agreement. Each Party shall provide prompt notification to the other
Party when any governmental approval, acceptance of filing, or necessary
consent of third parties is obtained. The Parties shall cooperate with
each other and make best efforts such that the Company becomes entitled to
most favorable treatment and benefits under Chinese law (including tax
law) in conducting its business.
47.4 If it becomes necessary for either Party to disburse any costs or expenses
on behalf of the Company (in connection with the establishment of the
Company, obtaining government approvals, purchasing equipment, conducting
Beta service for Lineage, Lineage marketing, etc.) before the
establishment of the Company, such Party may, subject to prior consent of
the other Party as to such disbursement and upon production of
satisfactory evidence thereof, disburse such costs or expenses out of its
own funds and,
-27-
<PAGE>
in that case, will be entitled to reimbursements for such disbursements
from the Company as soon as the Company is established.
47.5 The Parties shall make best efforts to accomplish the successful Beta
service for Lineage prior to the establishment of the Company and shall
continue such Beta service efforts through the Company, upon the
establishment of the Company.
Article 48. Non-Competition and Right of First Refusal for Lineage Forever
48.1 Non-Competition
For 2 years after the Establishment Date (the "Non-Competition Period"),
NCsoft and Sina shall not (and shall cause their respective Affiliates not
to) directly (i) acquire an equity interest in excess of a 20% voting
interest on a fully-diluted basis in, participate in the management of, or
encourage any of its employees to become an employee of, any entity
offering services in the Territory that directly competes with the
business of offering massively multiplayer online game ("MMOG")-related
services and software to the end users (a "Competitive Business") or (ii)
engage in a Competitive Business directly or through its licensee. For the
avoidance of doubt, the Parties agree that advertising, research and
development activities and certain server hosting business (whereby the
Party (or its Affiliate) hosts other MMOGs on its web-site or server and
provides billing and collection services (e.g., via distribution of point
cards) for such MMOGs, but does not publish or operate such MMOGs itself,
obtain a license or sub-license for such MMOGs, issue any point cards
directly, maintain or manage any customer database or customer list for
such MMOGs, exercise any direct influence over pricing for such MMOGs or
host any official web-site of any one MMOG or a number of MMOGs operated
by any one party) concerning MMOGs shall not be deemed as a Competitive
Business.
48.2 Right of First Refusal for Lineage Forever
(i) If NCsoft proposes to launch the 3-D version of Lineage (which is an
MMOG under development by NCsoft) ("Lineage Forever"), which may be
named Lineage Forever, in the Territory, NCsoft shall notify the
Company of such intention and the major terms and conditions it
proposes for such license in writing. For avoidance of doubt,
Lineage Forever shall not be construed to include, among others, L2.
(ii) If the Company finds the proposed terms and conditions acceptable
and wishes to proceed with negotiation with NCsoft to be the
exclusive licensee in the Territory for Lineage Forever, it shall
notify its such intention to NCsoft in writing within two weeks from
the date of such notice.
-28-
<PAGE>
(iii) If the Company timely notifies NCsoft its intention to proceed with
the negotiation, the Company and NCsoft shall engage in good faith
discussions with each other to enter into a binding agreement for
the exclusive license for Lineage Forever in the Territory, based on
NCsoft's proposed terms and conditions set forth in its notice under
(i).
(iv) If the Company and NCsoft fails to enter into a binding agreement
within one month from the date of the Company's notice under (ii) or
the Company does not give NCsoft notice under (ii) (or gives a
notice under (ii) setting forth its intention not to proceed with
the negotiation), then NCsoft shall be free to offer such exclusive
license to or engage in a discussions with any other party it finds
appropriate, provided that the terms and conditions offered to such
third party may not be more favorable than those offered to the
Company in NCsoft's notice under (i).
CHAPTER 19. MISCELLANEOUS
Article 49. Language
This Agreement shall be written in the Chinese and English languages. In the
case of a conflict between the Chinese and English versions of this Agreement,
the English version shall prevail. Each language versions of this Agreement
shall be executed in six (6) copies. Each of NCsoft and Sina shall keep two (2)
copies and the remaining copies shall be used for the purpose of submission the
Approval Authority and registration with State Administration of Industry and
Commerce or for record-keeping at the Company.
Article 50. Notice
Any and all notices, consents, requests, demands and other communications
required or otherwise contemplated to be made under this Agreement shall be in
writing and in English and shall be provided by one or more of the following
means and shall be deemed to have been duly given (a) if delivered personally,
when received, (b) if transmitted by facsimile, on the date of transmission with
receipt of a transmittal confirmation or (c) if by international courier
service, on the third (3rd) Business Day following the date of deposit with such
courier service, or such earlier delivery date as may be confirmed in writing to
the sender by such courier service. All such notices, requests, demands and
other communications shall be addressed as follows:
If to Sina:
SINA.COM
Legal Address: 2988 Campus Drive, Suite 100
San Mateo, CA 94403, USA
-29-
<PAGE>
Telephone: (650) 638-9228
Facsimile: (650) 645-8650
Attention: Legal Department
with a copy (which copy shall not constitute notice) to:
SINA Beijing
Legal Address: 16 Floor, Building C, SOHO
88 Jian Guo Road, Chao Yang District
Beijing, 100022, China
Telephone: (86-10) 65665009
Facsimile: (86-10) 85801740
Attention: Legal Department
If to NCsoft:
NCsoft Corp.
6th Floor Seung Kwang Bldg., 143-8
Samsung-dong, Kangnam-gu, Seoul, 135-090, Korea
Attention: Mr. Hong Heo
Position: Director, CFO
Telephone: 82-2-2186-3321
Facsimile: 82-2-2186-3489
with a copy (which copy shall not constitute notice) to:
Kim & Chang
223 Naeja-Dong, Chongro-Ku
Seoul 110-720, Korea
Attention: Chang Hyeon Ko, Esq.
Telephone: 82-2-3703-1100
Facsimile: 82-2-737-9091
or to such other address or facsimile number as a Party may have specified to
the other Parties in writing delivered in accordance with this Article.
Article 51. Trade Name
After this Agreement is terminated or any Party has withdrawn from the Company,
the Company shall no longer use the trade name of such Party that has withdrawn,
unless otherwise explicitly provided under a separate, relevant agreement.
Article 52. Translation
-30-
<PAGE>
The Company shall be responsible for translating into Chinese all documents into
English provided to the Company by NCsoft. NCsoft shall not take any liability
for, or be adversely affected in any way by, any mistake or misunderstanding
arising from wrong or incorrect translation.
Article 53. Headings
The headings for each Chapter or Article herein are for convenience only and
shall not affect the meaning of the provisions of this Agreement.
Article 54. Successors
This Agreement and all the covenants, terms and conditions herein shall be
binding on the Parties and the Company and their respective successors.
Article 55. Change of Law
After the execution of this Agreement, if Chinese central or local government
issues any laws or regulations concerning tax, customs, labor, foreign exchange
or other matters, or any amendment, supplement or rescission of the same (or if
there is any change in the interpretation or enforcement of existing laws or
regulations) which materially and adversely affects the economic benefits of
each Party under this Agreement directly or indirectly, the Parties shall
promptly consult and make necessary amendments to this Agreement in order to
maintain the original economic benefits of the Parties and report such
amendments to the Approval Authority for its approval. If no agreement can be
reached on the amendment to this Agreement, the Parties may terminate this
Agreement through the negotiation and agreement. If any new laws or regulations
applicable to the Company and the Parties are more favorable to the Company and
the Parties than terms and conditions of this Agreement, the Company and the
Parties shall promptly enjoy the benefit of such new laws and regulations.
Article 56. Entire Agreement
This Agreement represents the entire agreement among the Parties with respect to
the subject matter of this Agreement and supersedes any other prior commitments,
agreements or understandings (written or verbal).
Article 57. Waiver
-31-
<PAGE>
Any failure or delay on the part of any Party to exercise any right under this
Agreement or under any other related agreement among the Parties shall not
operate as a waiver thereof.
Article 58. Partial Invalidity
If any term or other provision of this Agreement is invalid, illegal or
incapable of being enforced by any law, regulation or public policy, all other
terms and provisions of this Agreement shall nevertheless remain in full force
and effect so long as the economic or legal substance of the transactions
contemplated hereby is not affected in any manner materially adverse to any
Party. Upon such determination that any term or other provision is invalid,
illegal or incapable of being enforced, the Parties shall negotiate in good
faith to amend this Agreement so as to describe the original intent of the
Parties as closely as possible in an acceptable manner, in order that the
transactions contemplated hereby are consummated as originally contemplated to
the greatest extent possible.
Article 59. Denial of Agency
Each Party is an independent contractor, and no Party shall be deemed to be the
agent of any other Party for any purpose whatsoever.
Article 60. Assignability
Neither of this Agreement nor any rights or obligations hereunder shall be
assignable, directly or indirectly, by any Party without the prior written
consent of the other Party, except for assignments explicitly permitted
elsewhere in this Agreement.
-32-
<PAGE>
In an atmosphere of amicable cooperation, Sina and NCsoft have had full
discussion on the above matters and have duly executed this Shareholders
Agreement.
NCsoft Corporation SINA.com
By: /s/ Taek-Jin Kim By: /s/ Daniel Mao
------------------------------- ------------------------------------
Title: Representative Director Title: Chief Executive Officer
Name: Taek-Jin Kim Name: Daniel Mao
Date: November 22, 2002 Date: November 22, 2002
-33-