Exhibit 10.74
Beijing Palmsky Technology Co., Ltd.
CONTRACT RELATING TO EXCLUSIVE PURCHASE RIGHT OF EQUITY INTEREST
Dated as of October 1, 2004
CONTRACT RELATING TO
THE EXCLUSIVE PURCHASE RIGHT OF AN EQUITY INTEREST
The Contract Relating to the Exclusive Purchase Right of An Equity Interest,
dated as of October 1, 2004 (this "Contract"), is made in Beijing by and among:
(1) Hurray! Holding Co., Ltd., a limited company incorporated in
Cayman Islands, with the address at Century Yard, Cricket
Square, Xxxxxxxx Drive, P.O. Box 2681GT, Xxxxxx Town, Grand
Cayman, British West Indies (the "Party A");
(2) Xxxx Xxxxxxx, Citizen of the People's Republic of China (the
"PRC"), holding the Identification Card of the PRC (No. [*]),
with the address at [*] (the "Party B"); and
(3) Beijing Palmsky Technology Co., Ltd., a limited liability
company organized and existing under the laws of the PRC, with
the registered address at Xxxx 000, Xxxxxx Xxxxxxxx, Xx. 000
Xxxxxxxxxx Xxxxxx Xxxx Haidian District Beijing (the "Party
C").
As used in this Contract, Party A, Party B, and Party C is "the Party"
respectively, and "Parties to the Contract" in all.
WHEREAS,
1. Party B has the ownership of 50% equity interest in Party C.
2. Party C and Hurray! Times Communications (Beijing) Ltd., a 100%
owned subsidiary company of Party A within PRC, entered into a
series of agreements such as Exclusive Technical and Consulting
Services Agreements.
NOW, THEREFORE, the parties to this Contract hereby agree as follows:
1. Purchase and Sale of Equity Interest
Section 1.1 Authorization
Party B hereby irrevocably delivers to Party A, under the laws of the PRC, an
irrevocable sole authority ("Purchase Right of Equity Interest") for Party A or
one or more persons designated by Party A (the "Designated Persons") to purchase
(in accordance with steps decided by Party A and at the price specified in
Section 1.3 hereof) at any time from Party B all or part of Party B's equity
interest in Party C. Except for Party A and the Designated Persons, Party B
shall not grant such right to any other party. Party C hereby
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agrees to the delivery of Purchase Right of Equity Interest from Party B to
Party A. As specified in this Section and this Contract, "person" has the
meaning of Person, Corporation, Joint Venture, Partnership, Enterprise, Trust or
Non-Corporation Organization.
Section 1.2 Steps
The performance by Party A of its Purchase Right of Equity Interest
shall be upon and subject to the laws and regulations of PRC. Party A shall send
a written notice (the "Notice of Purchase of Equity Interest") to Party B upon
its performance of Purchase Right of Equity Interest, the Notice of Purchase of
Equity Interest shall have in it the following contents:
(a) Party A's decision of the performance of purchase right;
(b) The Equity Interest to be purchased by Party A from Party B (the
"Purchased Equity Interest");
(c) Purchase Date/Equity Interest Transfer Date.
Section 1.3 Purchase Price
Except as requested by law to evaluate, the price of the Purchased Equity
Interest ("Purchase Price") shall be an equivalent of the actual amount of the
Purchased Equity Interest contributed by Party B.
The Purchase Price is subject to applicable laws and regulations of PRC.
Section 1.4 Transfer of the Purchased Equity Interest
Every time Party A's performance of the Purchases Right of Equity Interest:
(a) Party B shall urge Party C to convene the shareholders meeting, and
during the meeting, to pass the decision or resolution to transfer the
equity interest from Party B to Party A and/or the Designated Persons;
(b) Party B shall, upon the terms and conditions of this Contract and the
Notice of Purchase of Equity Interest, enter into Equity Interest
Transfer Contract with Party A (or, in applicable situation, the
Designated Persons);
(c) The related parties shall execute all other requisite contracts,
agreements or documents, acquire all requisite approval and consent of
the government, and, without any security interest, perform all
requisite action to transfer the valid ownership of the Purchased Equity
Interest to Party A and (or) the Designated Person, and to cause party A
and (or) the Designated Person to be the registered owner of the
Purchased Equity Interest. For this Section and this Contract, "Security
Interest" has
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the meaning of security, mortgage, right or interest of the third party,
any purchase right of equity interest, right of acquisition, pre-emptive
right, right of set-off, lien or other security arrangements. To further
define the meaning, it does not include any security interest subject to
this Contract or the equity interest pledge contract of Party B. As
described in this Section and this Contract, "the Equity Interest Pledge
Contract of Party B" has the meaning of the Equity Interest Pledge
Contract entered into by Hurray! Times Communications (Beijing) Ltd. and
Party B dated as of the execution date of this Contract. According to
the said Contract, to secure Party C to perform the obligations subject
to the Exclusive Technology Consulting and Service Agreement entered
into between Party C and Hurray! Times Communications (Beijing) Ltd.,
Party B pledges all its equity interest in Party C to Hurray! Times
Communications (Beijing) Ltd.
Section 1.5 Payment
Upon the performance of the Purchase Right of Equity Interest by Party A, the
Purchase Price shall be determined in such manner as required by the PRC laws
and regulation then in effect as the payment from Party B to Party A subject to
the loan. Party A does not need pay the Purchase Price to Party B anymore.
2. Undertaking Relating to Equity Interest
Section 2.1 Undertaking by Party C
Party C hereby undertakes:
(1) Without prior written consent by Party A or Hurray! Times Communications
(Beijing) Ltd., Party A's Affiliate in PRC, not, in any form, to
complement, change or renew the Articles of the Association of Party C,
to increase or decrease its registered capital, or to change the
structure of its registered capital in any other forms;
(2) Following kind finance and business standard and practice, to maintain
the existence of the corporation, operate business and deal with affairs
in a prudent and effective manner;
(3) Without prior written consent by Party A or Hurray! Times Communications
(Beijing) Ltd., Party A's Affiliate in PRC, not, from the execution date
of this Contract, to sell, transfer, mortgage or dispose of in any other
form any legitimate or beneficial interest of the assets, business or
income of Party C, or to appove any other security interest set on it;
(4) Without prior written notice by Party A or Hurray! Times Communications
(Beijing) Ltd., Party A's Affiliate in PRC, no debt shall take place, be
inherited, be guaranteed, or be allowed to exist, with the exception of:
(i) debt from normal or daily business but not from borrowing; (ii) debt
having been disclosed to Party A or having gained
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Written consent from Part A;
(5) To normally operate all business to maintain the asset value of Party C,
without doing or otherwise taking any action that sufficiently adversely
affects the operation and asset value;
(6) Without prior written consent by Party A or Hurray! Times Communications
(Beijing) Ltd., Party A's Affiliate in PRC, not to enter into any
material contract, with the exception of the contract entered into
during the normal business (As in this paragraph, a contract with a
value more than RMB One Million (RMB1,000,000) shall be deemed as a
material contract);
(7) Without prior written consent by Party A or Hurray! Times Communications
(Beijing) Ltd., Party A's Affiliate in PRC, not to provide loan or
credit loan to anyone;
(8) Upon the request of Party A, to provide it with the information relating
to the operation and financial situation of Party C;
(9) Party C purchases and holds all insurance from the insurance company
accepted by Party A, the insurance amount and category shall be the same
with those held by the companies in the same area, operating the similar
business and owning the similar properties and assets;
(10) Without prior written consent by Party A or Hurray! Times Communications
(Beijing) Ltd., Party A's Affiliate in PRC, not to merge or associate
with any person, or purchase any Person or invest in any Person;
(11) To immediately notify Party A the occurrence or the probable occurrence
of the litigation, arbitration or administrative procedure related to
the assets, business and income of Party C;
(12) In order to keep the ownership of Party C to all its assets, to execute
all requisite or appropriate documents, do all requisite or appropriate
action, and advance all requisite or appropriate accusation, or make
requisite or appropriate plea for all claims;
(13) Without prior written notice by Party A, not to assign dividends to
shareholders in any form, but upon the request of Party A, to assign all
or part of its distributable profits to their own shareholders; and
(14) Upon the request of Hurray! Times Communications (Beijing) Ltd., Party
A's Affiliate in PRC, to appoint any person designated by Hurray! Times
Communications (Beijing) Ltd. to be the member of the Board of Directors
of Party C.
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Section 2.2 Undertaking by Party B
Party B undertakes:
(1) Without prior written consent by Party A or Hurray! Times Communications
(Beijing) Ltd., Party A's Affiliate in PRC, not, from the execution date
of this Contract, to sell, transfer, mortgage or dispose of in any other
form any legitimate or beneficial interest of equity interest, or to
approve any other security interest set on it, with the exception of the
pledge set on the equity interest of Party B subject to Equity Interest
Pledge Contract of Party B;
(2) To cause the authorized representative(s) appointed by it not to approve
at shareholder meetings, with no prior written notice by Party A or
Hurray! Times Communications (Beijing) Ltd., Party A's Affiliate in PRC,
the sale, transfer, mortgage or disposal of in any other form any
legitimate or beneficial interest of equity interest, or to approve any
other security interest set on it, with the exception of the pledge set
on the equity interest of Party B subject to Equity Interest Pledge
Contract of Party B;
(3) To cause the authorized representative(s) appointed by it not to approve
at shareholder meetings, with no prior written notice by Party A or
Hurray! Times Communications (Beijing) Ltd., Party A's Affiliate in PRC,
the merge or amalgamation of Party C with any person, or the acquisition
of any person or investment in any person;
(4) To immediately notify Party A of the occurrence or the probable
occurrence of the litigation, arbitration or administrative procedure
related to the equity interest owned by it;
(5) To cause the the authorized representative(s) appointed by it to vote to
approve at shareholder meetings the transfer of the Purchased Equity
Interest subject to this Contract;
(6) In order to keep its ownership of the equity interest, to execute all
requisite or appropriate documents, do all requisite or appropriate
action, and advance all requisite or appropriate accusation, or make
requisite or appropriate defense for all claims;
(7) Upon the request of Hurray! Times Communications (Beijing) Ltd., Party
A's Affiliate in PRC, to appoint any person designated by Hurray! Times
Communications (Beijing) Ltd. to be the member of the Board of Directors
of Party C;
(8) Upon the request of Party A at any time, to immediately transfer its
equity interest to the representative designated by Party A
unconditionally and at any time, and waive its pre-emptive right over
equity interest being transferred to another available shareholder; and
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(9) To prudently comply with the terms and conditions of this Contract and
other contracts entered into jointly or severally by Party B, Party C
and Party A and Hurray! Times Communications (Beijing) Ltd., to actually
perform all obligations under these contracts, without taking any action
or being inaction that sufficiently affects the validity and
enforceability of these contracts.
3. Representations and Warranties
Representations and Warranties of Party B and Party C
Dated as of the execution date of this Contract and every tranfer date, Party B
and Party C hereby jointly and severally represents and warrants to Party A as
follows:
(1) It has the power and ability to enter into and deliver this Contract and
any equity transfer contract (each referred to as "Transfer Contract")
to which it is a party which is concluded for every single transfer of
the purchased equity interest according to this Contract, and to perform
its obligations under this Contract and any Transfer Contract. Upon
execution, this Contract and the Transfer Contracts having it as a party
constitute a legal, valid and binding obligation, which are enforceable
against it in accordance with its terms;
(2) The execution, delivery of this Contract and any Transfer Contract and
performance of the obligations under this Contract and any Transfer
Contract do not: (i) result in violation of any relevant laws of PRC;
(ii) constitute a conflict with its Articles of Association or other
constituent documents; (iii) cause to breach any contract or instruments
to which it is a party or having binding obligation on it, or constitute
a breach of any contract or instruments to which it is a party or having
binding obligation on it; (iv) cause to violate relevant authorization
of any consent or approval to it and (or) any continuing valid
condition; or (v) cause any consent or approval authorized to it to be
suspended, removed, or into which other requests be added;
(3) Party B has a good title and sellable ownership of its equity interest
in Party C. Party B does not set any security interest on the said
equity interest, with the exception of the pledge of equity interests
agreed by Party A and Hurray! Times Communications (Beijing) Ltd., Party
A's Affiliate in PRC;
(4) Party C does not have any undischarged debt, with the exception of (i)
debt from its normal business; and (ii) debt having been disclosed to
Party A and having gained written consent from Party A;
(5) Party C abides by all laws and regulations applicable to the purchase of
assets; and
(6) No litigations, arbitration or administration procedure relating to the
equity interest, assets of Party C or the corporation is undergoing or
pending or likely to occur.
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4. Effective Date
This Contract shall be effective from the execution date, with a term of
10 years, and can be extended for another 10 years at the option of
Party A.
5. Applicable Law and Dispute Resolution
Section 5.1 Applicable Law
The execution, validity, interpretation and performance of this Contract, and
resolution of the disputes under this Contract, shall be governed by the laws of
PRC.
Section 5.2 Dispute Resolution
Any dispute arising from the interpretation and performance of this Contract
shall be settled through friendly consultation between the parties of this
Contract. If no settlement can be reached through such consultation within
thirty (30) days after the date of the written notice sent by one party to the
other requesting to settle the dispute, then each of the parties shall have the
right to refer the dispute to China International Economic and Trade Arbitration
Commission, for arbitration according to the arbitration rules then in effect.
The arbitration shall take place in Beijing. The arbitral award shall be final,
and binding upon both parties of this Contract.
6. Taxes and Expenses
Every party shall, according to laws of PRC, bear any and all transfer and
registration taxes, stamp duties and expenses for the preparation and execution
of this Contract and all Transfer Contracts, and for completion of any
transactions contemplated by this Contract and all Transfer Contracts that may
be incurred by or imposed on it.
7. Notices
This Contract requires that any notices or other communications sent by any
party or corporation shall be written in Chinese, and be delivered in person, by
mail or telecopy to other parties at the following addresses or other specified
addresses noticed by other parties to the party. Any notices shall be deemed to
have been duly given or made as follows: (a) if delivered in person, it shall be
deemed to have been duly given or made when being delivered; (b) if delivered by
registered air mail with postage prepaid, it shall be deemed to have been duly
given or made after 10 days when it is posted (as shown on stamp); and (c) if
sent by telecopy, it shall be deemed to have been duly given or made at the time
shown on the transmission report to indicate that the document was sent.
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Party A: Hurray! Holding Co., Ltd.
Address: Century Yard, Cricket Square, Xxxxxxxx Drive,
P.O. Box 2681GT, Xxxxxx Town, Grand Cayman,
British West Indies, Cayman Islands,
British West Indies.
Party B: Xxxx Xxxxxxx
Address: Xxxx 000, Xxxxx 0, No.12 Fuxing Road,
Haidian District, Beijing
Party C: Beijing Palmsky Technology Co., Ltd.
Address: Xxxx 000, Xxxxxx Xxxxxxxx,
Xx. 000 Beisihuang Middle Road,
Haidian District, Beijing
8. Cofidentiality
Both the parties admit and confirm any oral or written materials exchanged by
the parties relating to this Contract are confidential. Both parties shall keep
all such materials in strict confidence. Without written approval by the other
party, the party shall not disclose to any third party any relevant materials,
but with the exception of the following: (a) the public know or may know such
materials (but not disclosed by the party accepting the materials); (b)
materials needed to be disclosed subject to applicable ordinances; or (c) any
party necessarily discloses materials to its legal or financial consultant
relating the transaction of this Contract, and this legal or financial
consultant shall have the obligation of confidentiality similar to that set
forth in this Section. The breach of the obligation of confidentiality by staff
or employed institution of any party shall be deemed as the breach of such
obligation by that party, and by whom the liabilities for breach shall be bored.
No matter this Contract may terminate by any reason, this Section shall continue
in force and effect.
9. Further Warranties
The Parties to the Contract agree to promptly execute documents reasonably
requisite to the performance of the provisions and the aim of this Contract or
documents beneficial to it, and to take actions reasonably requisite to the
performance of the provisions and the aim of this Contract or actions beneficial
to it.
10. Miscellaneous
Section 10.1 Amendment, Modification and Supplement
Amendment, modification and supplement of this Contract shall be subject to the
written agreement executed by each party.
Section 10.2 Observance of Laws and Regulations
The parties of the contract shall observe and make sure the operation of each
party fully observe all laws and regulations of PRC officially published and
publicly obtainable.
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Section 10.3 Entire Contract
Except for a written amendment, supplement and modification of this Contract
following the date of execution, this contract constitutes the entire contract
of the parties hereto with respect to the subject hereof and supersedes all
prior oral or written agreements, representation and contracts with respect to
the subject hereof.
Section 10.4 Headings
The headings contained in this Contract are for convenience of reference only
and shall not affect the interpretation, explanation or in any other way the
meaning of the provisions of this Contract.
Section 10.5 Language
This Agreement is executed by Chinese in three copies.
Section 10.6 Severability
If any one or more provisions of this Contract are ruled as invalid, illegal or
non-enforceable in any way according to any laws or regulations, the validity,
legality and enforceability of other provisions hereof shall not be affected or
impaired in any way. All parties shall, through sincere consultation, urge to
replace those invalid, illegal or non-enforceable provisions with valid ones,
and from such valid provisions, similar economic effects shall be tried to reach
as from those invalid, illegal or non-enforceable provisions.
Section 10.7 Successor
This Contract shall be binding upon and benefitial to the successor of each
party and the transferee allowed by each party.
Section 10.8 Survival
(a) Any obligation arising or which is due in connection with the contract
prior to the expiry or early termination hereof this Contract shall
continue in hereof force and effect notwithstanding the expiry or early
termination of the Contract.
(b) Section 5, Section 8 and Section 10.8 hereof shall continue in force and
effect after the termination of this Contract.
Section 10.9 Waiver
Any party to this Contract may waive the terms and conditions of this Contract.
Such waiver shall be valid only if set forth in an instrument in writing signed
by the party or parties to be bound thereby. Any waiver by a party to the breach
hereof by other parties in certain situation shall not be construed as a waiver
to any similar breach by other parties in other situation.
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IN WITNESS THEREFORE, the parties hereof have caused the Contract Relating to
the Exclusive Purchase Right of Equity Interest to be executed by their duly
authorized representatives as of the date first written above.
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Party A: Hurray! Holding Co., Ltd.
By: /s/ Xxxx Xxxxxxx
-----------------------------------------
Name:Xxxx Xxxxxxx
Title:
Party B: Xxxx Xxxxxxx
By: /s/ Signed
-----------------------------------------
Name:
Party C: Beijing Palmsky Technology Co., Ltd.
By: /s/ Signed
-----------------------------------------
Name:
Title:
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