Share Pledge Agreement
Exhibit
4.49
Share
Pledge Agreement
This
Share Pledge Agreement (this “Agreement”) is entered into on June 29, 2006 in
Beijing by and among the following parties:
Party A: | Kongzhong Information Technologies (Beijing) Co., Ltd. | |
Address: | 00X, Xxxxxx Xxxxx, Xx.000 Xxxxx Xxxxxx, Xxxxxxx Xxxxxxxx, Xxxxxxx | |
Legal Representative: | Xxxxxx Xxxx | |
Party B: | Beijing Wireless Interactive Network Technology Limited | |
Address: | 8F-805, Tengda plaza, Xx.000 Xxxxx Xxxxxx, Xxxxxxx Xxxxxxxx, Xxxxxxx | |
Legal Representative: | Xxxx Xxxx | |
Party C: | Xxxx Xxxx | |
Address: | 407, No. 397 Guang An Men Wai Avenue, Xuanwu District, Beijing |
Party D: | Hai Qi | |
Address: | Xx. 000, Xxxx 0, Xxxxxxxx 0, Xxxxxxxxx, Xxxxxxx Xxxxxx, Xxxxxxxx District, Tianjin |
WHEREAS,
1. |
Party
A is a wholly foreign-owned company registered in the
PRC.
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2. |
Party
B is a limited company registered in China and licensed by relevant
government authorities to hold a Telecommunications Value-added Service
Operation Permit, which qualifies it to engage in telecommunications
value-added service.
|
3. |
Party
C and Party D (the “Pledgor”) are the shareholders of Party B and own 40%
and 60% equity interest in Party B respectively. Party C and Party
D have
signed Capital Contribution Transfer Agreements with the original
shareholders of Party B who transferred their respective equity interest
in Party B. The amount for the transfer of equity interest was paid
by
Party A.
|
4. |
All
parties to this Agreement have signed Business Operation Agreement
and
Option Agreement respectively on June 29,
2006.
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5. |
Party
A and Party B have signed Exclusive Technical Consultation and Service
Agreement on February 28, 2005.
|
6. |
In
order to guarantee that Party A collects normally technical service
fees
under the Exclusive Technical Consulting and Services Agreement,
and to
ensure the performance of Business Operation Agreement and Option
Agreement, the Pledgors are willing to severally and jointly pledge
all
their equity interest in Party B to the Pledgee as a security for
the
performance of the obligations under the aforesaid agreement, with
Party A
as the Pledgee.
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1
Therefore,
through friendly negotiations and in the principles of equality and mutual
benefit, the parties hereby enter agreement as follows.
1. |
Definitions
|
Unless
otherwise provided in this Agreement, the following terms shall have the
following meanings:
1.1 |
Pledge
means the full content of Article 2
hereunder.
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1.2 |
Equity
Interest means 100% equity interests in Party B legally and jointly
held
by the Pledgors and all the present and future rights and benefits
based
on such equity interest.
|
1.3 |
Reorganization
Agreements mean Exclusive Technical Consultation and Service Agreement
signed by the parties on February 28, 2005, Business Operation Agreement
and Option Agreement signed by the parties respectively on June 29,
2006.
|
1.4 |
Event
of Default means any event in accordance with Article 7
hereunder.
|
1.5 |
Notice
of Default means the notice of default issued by the Pledgee in accordance
with this Agreement.
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2. |
Pledge
|
2.1 |
The
Pledgors agree to pledge all the equity interest in Party B to Party
A as
the security for Party A’s rights and interest under the reorganization
agreements.
|
2.2 |
The
Pledge under this Agreement refers to the rights owned by the Pledgee
to
collect the fees (including legal fees), expenses and losses that
Party B
shall pay under the Technical Consulting and Service Agreement, and
civil
liabilities that Party B or Pledgors shall bear in case the Reorganization
Agreement wholly or partially becomes nullify due to any
reason.
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2.3 |
The
Pledge under this Agreement refers to the prior right owned by the
Pledgee
to the money gained from the conversion, auction, or sell of the
equity
interests pledged by the Pledgor to the
Pledgee.
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2.4 |
The
pledge under this Agreement will be discharged only when Party B
and
Pledgors have performed all the obligations and liabilities under
the
Reorganization Agreement and Party A confirms in writing. If Party
B or
Pledgors have not fully performed all or part of its obligations
or
liabilities under the Reorganization Agreement at the expiration
of such
agreements, Party A will maintain the pledge hereunder up to the
date when
all such obligations and liabilities are fully
performed.
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2
3. |
Effect
|
3.1 |
This
Agreement shall take effect as of the date when the equity shares
pledged
are recorded in the Register of Shareholder of Party
B.
|
3.2 |
Party
A is entitled to dispose the pledge hereunder if Party B fails to
pay the
fees in accordance with the Technical Consulting and Service Agreement
or
fail to perform the Business Operation Agreement and the Option
Agreement.
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4. |
Physical
Possession Of Documents
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4.1 |
During
the term of Pledge under this Agreement, the Pledgor shall deliver
the
physical possession of the Certificate of Distribution (original)
of Party
B and provide the testify of the proper record of such pledge on
the
shareholders’ register of Party B to Party A within one week as of the
date of conclusion of this
Agreement.
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4.2 |
The
Pledgor shall be entitled to collect the incomes (such as, including
but
not limited to, any dividends and profits) from the equity interests,
which shall become the assurance for the debt of Beijing AirInbox
Information Technologies Limited, within the term of this Agreement,
unless consented otherwise in writing by Party
A.
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5. |
Warranties
And Representation Of The
Pledgor
|
The
Pledgors hereby make the following representation and warranties to the Pledgee
and confirm that Party A executes this Agreement in reliance of such
representation and warranties:
5.1 |
The
Pledgors lawfully own the equity interests hereunder and are entitled
to
create pledge on such the equity interests;
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5.2 |
Party
A shall not be interfered by any other parties once the Party A exercises
the rights of the Pledge in accordance with this
Agreement.
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5.3 |
Party
A is entitled to dispose the pledge in accordance with relevant laws
and
this Agreement.
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5.4 |
The
execution and performance of this Agreement of the Pledgor has gained
all
necessary authorization and shall not violate any applicable laws
and
regulations. The representative who signs this Agreement shall be
lawfully
and effectively authorized.
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3
5.5 |
Except
for the pledge under this Agreement, there is no other burden of
rights on
the equity interests pledged by the Pledgors (including but not limited
to
pledge).
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5.6 |
There
is no pending or incoming civil, administrative or criminal litigation
or
administrative punishment or arbitration relating to the equity interests
hereunder at the date of execution of this
Agreement.
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5.7 |
There
are no outstanding taxes, fees or undecided legal procedures related
with
the equity interests hereunder at the date of execution of this
Agreement.
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5.8 |
Each
provision hereunder is the expression of each Party’s true meaning and
shall be binding upon all the Parties.
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6. |
Covenant
Of The Pledgor
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6.1 |
During
the term of this Agreement, the Pledgor covenants to Party A that
the
Pledgor will:
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6.1.1 |
not
transfer or assign the equity interests, create or permit to create
any
pledges which may have an adverse effect on the rights or benefits
of the
Pledgee without prior written consent from the Pledgee except transfer
to
the Pledgee or the person designated by the Pledgee as required by
the
Pledgee;
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6.1.2 |
comply
with and implement laws and regulations with respect to the pledge
of
rights, present to Party A the notices, orders or suggestions with
respect
to the Pledge issued or made by the competent authority within five
days
upon receiving such notices, orders or suggestions and take actions
in
accordance with the reasonable instruction of Party
A;
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6.1.3 |
timely
notify Party A of any events or any received notices which may affect
the
Pledgor’s equity interest or any part of its right, and any events or any
received notices which may change the Pledgor’s any covenant and
obligation under this Agreement or which may affect the Pledgor’s
performance of its obligations under this Agreement, take actions
in
accordance with the instructions of Party
A;
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6.2 |
The
Pledgors agree that Party A’s right of exercising the Pledge pursuant to
this Agreement shall not be suspended or hampered by the Pledgors
or any
successors or transferees of the Pledgors or any other
persons.
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6.3 |
The
Pledgors warrant to Party A that in order to protect or perfect the
security over the payment of the technical consulting and service
fees
under the Technical Consulting and Service Agreement, the Pledgors
shall
execute in good faith and cause other parties who have interests
in the
pledge to execute all the title certificates, contracts, and /or
perform
and cause other parties who have interests to take action as required
by
the Pledgee and make access to exercise the rights and authorization
vested in the Pledgee under this Agreement, and execute all the documents
with respect to the changes of certificate of equity interests with
the
Pledgee or another party designated by the Pledgee, and provides
the
Pledgee with all the documents regarded as necessary to the Pledgee
within
the reasonable time.
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4
6.4 |
The
Pledgors warrants to Party A that the Pledgors will comply with and
perform all the guarantees, covenants, agreements, representations
and
conditions for the benefits of the Pledgee. The Pledgor shall compensate
for all the losses suffered by Party A for the reasons that the Pledgor
does not perform or fully perform their guarantees, covenants, agreements,
representations and conditions.
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7. |
Event
Of Default
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7.1 |
The
following events shall be regarded as an event of
default:
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7.1.1 |
Party
B or its successors or transferees fail to make full payment of
service
fees under the Service Agreement on time, or the Pledgors or its
successors or transferees fail to perform the Business Operation
Agreement
and the Option Agreement;
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7.1.2 |
The
Pledgors make any material misleading or fraudulent representations
or
warranties under Article 5 and 6 herein, and/or the Pledgor is in
violation of any representations or warranties under Article 5 and
6
herein;
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7.1.3 |
The
Pledgors gravely violate any provisions of this
Agreement;
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7.1.4 |
The
Pledgors waive the pledged equity interests or transfers the pledged
equity interests without prior written consent from the Pledgee except
otherwise agreed under Article 6.1.1
herein;
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7.1.5 |
The
Pledgor’s any external loan, security, compensation, covenants or any
other compensation liabilities (1) are required to be repaid or performed
prior to the scheduled date; or (2) are due but can not be repaid
or
performed as scheduled and thereby cause the Pledgee to deem that
the
Pledgor’s capacity to perform the obligations herein is
affected;
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7.1.6 |
The
Pledgors are incapable of repaying the general debt or other debt,
which
subsequently affects the interests of Party
A;
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5
7.1.7 |
This
Agreement is illegal for the reason of the promulgation of any related
laws or the Pledgor's incapability of continuing to perform the
obligations herein;
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7.1.8 |
Any
approval, permits, licenses or authorization from the competent authority
of the government needed to perform this Agreement or validate this
Agreement are withdrawn, suspended, invalidated or materially amended;
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7.1.9 |
The
property of the Pledgor is adversely changed and causes Party A to
deem
that the capability of the Pledgor to perform the obligations herein
is
affected;
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7.1.10 |
Other
circumstances whereby the Pledgee is incapable of exercising the
right to
dispose the Pledge in accordance with relevant
laws.
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7.2 |
The
Pledgor shall immediately give a written notice to Party A if the
Pledgor
is aware of or find that any event under Article 7.1 herein or any
events
that may result in the foregoing events have happened or are going
on.
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7.3 |
Unless
the event of default under Article 7.1 herein has been solved to
Party A's
satisfaction, Party A, at any time when the event of default happens
or
thereafter, may give a written notice of default to the Pledgor and
require the Pledgor to immediately make full payment of the outstanding
fees under the Service Agreement, and other payables or timely perform
the
Business Operation Agreement or the Option Agreement, or dispose
the
Pledge in accordance with Article 8
herein.
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8. |
Exercise
Of The Right Of The Pledge
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8.1 |
The
Pledgor shall not transfer the pledge without prior written approval
from
Party A prior to the full repayment of the fees under the Service
Agreement and the full performance of the Business Operation Agreement
or
the Option Agreement.
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8.2 |
Party
A shall give a notice of default to the Pledgors when it exercises
the
right of pledge.
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8.3 |
Subject
to Article 7.3, the Pledgee may exercise the right to dispose the
Pledge
at any time when Party A gives a notice of default in accordance
with
Article 7.3 or thereafter.
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8.4 |
Party
A is entitled to have priority in receiving payment by the evaluation
or
proceeds from the auction or sale of whole or part of the share pledged
herein in accordance with legal procedure until the outstanding fees
under
the Servicing Agreement and all other payables there under are repaid,
and
the full performance of the Business Operation Agreement or the Option
Agreement.
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6
8.5 |
The
Pledgors shall not hinder the Pledgee from disposing the Pledge in
accordance with this Agreement and shall give necessary assistance
so that
the Pledgee could realize his
Pledge.
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9. |
Transfer
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9.1 |
The
Pledgors shall not transfer the rights and obligations to any third
party
herein without prior consent from the
Pledgee.
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9.2 |
This
Agreement shall be binding upon the Pledgors and their successors
and be
effective to Party A and his successors and
assignees.
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9.3 |
Party
A may transfer his all or any rights and obligations under the
Reorganization Agreement to any third party at any time. In this
case, the
assignee shall enjoy and undertake the same rights and obligations
herein
of Party A as if the assignee is a party hereto. When Party A transfers
the rights and obligations under the Reorganization Agreement, at
the
request of Party A, the Pledgors shall execute relevant agreements
and/or
documents with respect to such
transfer.
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9.4 |
After
the Pledgee’s change resulting from the transfer, the new parties to the
pledge shall reexecute a pledge
agreement.
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10. |
Fees
And Other Charges
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The
Pledgor shall be responsible for all the fees and actual expenditures in
relation to this Agreement including but not limited to legal fees, cost of
production, stamp tax and any other taxes and charges.
11. |
Force
Majeure
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11.1 |
If
this Agreement is delayed in or prevented from performing in the
Event of
Force Majeure (“Event of Force Majeure”), only within the limitation of
such delay or prevention, the affected party is absolved from any
liability under this Agreement. Force Majeure, which includes acts
of
governments, acts of nature, fire, explosion, geographic change,
flood,
earthquake, tide, lightning, war, means any unforeseen events beyond
the
prevented party’s reasonable control and cannot be prevented with
reasonable care. However, any shortage of credit, capital or finance
shall
not be regarded as an event beyond a Party’s reasonable control. The Party
affected by Force Majeure who claims for exemption from performing
any
obligations under this Agreement or under any Article herein shall
notify
the other party of such exemption promptly and advice him of the
steps to
be taken for completion of the
performance.
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7
11.2 |
The
Pledge affected by Force Majeure shall not assume any liability under
this
Agreement. However, subject to the Party affected by Force Majeure
having
taken its reasonable and practicable efforts to perform this Agreement,
the Party claiming for exemption of the liabilities may only be exempted
from performing such liability as within limitation of the part
performance delayed or prevented by Force Majeure. Once causes for
such
exemption of liabilities are rectified and remedied, both parties
agree to
resume performance of this Agreement with their best
efforts.
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12. |
Applicable
Law and Dispute Resolution
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12.1 |
The
execution, validity, performance and interpretation of this Agreement
shall be governed by and construed in accordance with the PRC
law.
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12.2 |
The
parties shall strive to settle any dispute arising from the interpretation
or performance through friendly consultation. In case no settlement
can be
reached through consultation, each party can submit such matter to
China
International Economic and Trade Arbitration Commission (“CIETAC”) for
arbitration. The arbitration shall follow the current rules of CIETAC,
and
the arbitration proceedings shall be conducted in Chinese and shall
take
place in Beijing. The arbitration award shall be final and binding
upon
the parties.
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12.3 |
Each
Party shall continue performance of this Agreement in good faith
according
to the stipulations herein except the matters in
dispute.
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13. |
Notice
|
Any
notice or correspondence, which is given by the Party as stipulated hereunder,
shall be in Chinese and English writing and shall be delivered in person or
by
registered or prepaid mail or recognized express service, or be transmitted
by
telex or facsimile to the following addresses:
Party A: | Kongzhong Information Technologies (Beijing) Co., Ltd. | ||
Address: | 00X, Xxxxxx Xxxxx, Xx.000 Xxxxx Xxxxxx, Xxxxxxx Xxxxxxxx, Xxxxxxx | ||
Fax: | x00 00 000000 | ||
Tele: | x00 00 00000000 | ||
Addressee: | Xxxx Xxxxxx | ||
Party B: | Beijing Wireless Interactive Network Technology Limited | ||
Address: | 8F-805, Tengda plaza, Xx.000 Xxxxx Xxxxxx, Xxxxxxx Xxxxxxxx, Xxxxxxx | ||
Fax: | x00 00 00000000 | ||
Tele: | x00 00 00000000 | ||
Addressee: | Xxxx Xxxx |
8
Party C: | Xxxx Xxxx | ||
Address: | 407, No. 397 Guang An Men Wai Avenue, Xuanwu District, Beijing | ||
Fax: | x00 00 00000000 | ||
Tele: | x00 00 00000000 |
Party D: | Hai Qi | ||
Address: | Xx.000, Xxxx 0, Xxxxxxxx 0, Xxxxxxxxx, Xxxxxxx Xxxxxx, Xxxxxxxx District, Tianjin | ||
Fax: | x00 00 00000000 | ||
Tele: | x00 00 00000000 |
14. |
Appendices
|
The
appendices to this Agreement are entire and integral part of this
Agreement.
15. |
Waiver
|
The
Pledgee’s non-exercise or delay in exercise of any rights, remedies, power or
privileges hereunder shall not be deemed as the waiver of such rights, remedies,
power or privileges. Any single or partial exercise of the rights, remedies,
power and privileges shall not exclude the Pledgee from exercising any other
rights, remedies, power and privileges. The rights, remedies, power and
privileges hereunder are accumulative and shall not exclude the application
of
any other rights, remedies, power and privileges stipulated by
laws.
16. |
Miscellaneous
|
16.1 |
Any
amendments, modifications or supplements to this Agreement shall
be in
writing and come into effect upon being executed and sealed by the
parties
hereto.
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16.2 |
In
case any terms and stipulations in this Agreement is regarded as
illegal
or can not be performed in accordance with the applicable law, such
terms
and stipulations shall be deemed to lose effect and enforcement within
the
scope governed by the applicable law, and the rest stipulations will
remain effective.
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16.3 |
This
Agreement and all the agreements and/or documents referenced or
specifically included herein constitute the entire agreement among
the
Parties in respect of the subject matter hereof and supersede all
prior
oral or written agreements, contract, understanding and correspondence
among them, including the equity pledge agreement among the Party
A, Paryt
B, Party C, Xxxxxx Xxxx and Linguang Wu dated February 28,
2005.
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16.4 |
This
Agreement shall be kept in 5
copies.
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9
(No
text
on this page)
Party
A: Kongzhong
Information Technologies (Beijing) Co., Ltd.
Authorized
Representative: _________________________
Party
B: Beijing
Wireless Interactive Network Technology Limited
Authorized
Representative: _________________________
Party
C: Xxxx
Xxxx
Signature:
Party
D: Hai
Qi
Signature:
10
Appendices
1. |
name
list of Party B’s shareholder
|
2. |
capital
contribution certificate of Party B’s
shareholder
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11