Exhibit 4.64
English Translation
SHARES PLEDGE CONTRACT
This Shares Pledge Contract (hereinafter called "This Contract") is signed by
the following two parties at Shanghai, the People's Republic of China
(hereinafter called "China") on the date December 14, 2007:
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Pledgee: Shanghai Linktone Software Co., Ltd.
Registration Address: Xxxxx 00000-000, Xxxxxxxx 00, 000 Xxxxxxxxxxx Xxxx,
Xxxxxxxxxx Xx-xxxx
Xxxx, Xxxxxxxx
Xxxxxxx: Xxxx Xxx
ID number: 000000000000000000
Address: Suite 201, 10 Xx.0 Xxx-xxxx, Xx.000 Xxxx, Xxxxxxx Xxxxxxxx, Xxxxxxxx
WHEREAS:
1. Xxxxxxx Gu Lei is a Chinese citizen, holding 10% of the shares of Shanghai
Langyi Advertising Co., Ltd (hereinafter called "Langyi"), which is a
company registered in Shanghai;
2. The Pledgee is wholly foreign-funded company registered in Shanghai, and
has signed the Agreement for Exclusive Technical and Consulting Services
with Langyi held by the Xxxxxxx on December 14, 2007 (hereinafter
called "Service Agreement");
3. In order to guarantee the Pledgee to smoothly collect technical and
consulting service fees from Langyi held by the Xxxxxxx, the Xxxxxxx agrees
to pledge all his shares in Langyi for the technical and consulting service
fees specified in Service Agreement.
NOW THEREFOR, the Xxxxxxx and the Pledgee, for the fulfillment of Service
Agreement, reach this Contract as follows:
1. DEFINITIONS
Except otherwise specified herein, the following terms are defined as follows:
Pledge Right: refers to all the contents listed in Article 2 hereof.
Shares: refer to 10% of the shares of Langyi that are lawfully held by
Xxxxxxx.
Pledge Rate: refers to the proportion between the value of the pledged
shares set forth herein and the technical and consulting service fees specified
in Service Agreement.
Pledge Term: refers to the term specified in Clause 3.2.
Service Agreement: refers to the Agreement for Exclusive Technical and
Consulting Services singed by Langyi and the Pledgee on December 14, 2007.
Default: refers to any of the circumstance listed in Article 7.
Default Notice: refers to the notice sent out by the Pledgee for announcing
any default of the Xxxxxxx according to this Contract.
2. PLEDGE RIGHT
The Xxxxxxx will pledge all his shares in Langyi to the Pledgee as a
guarantee on the technical and consulting service fees specified in Service
Agreement.
The Pledge right refers to the right that the Pledgee has to get first paid
with the shares-converted money, the money from shares auction, or the money
from shares-selling, of the Xxxxxxx'x shares.
3. PLEDGE RATE AND TERM
Pledge Rate
The pledge rate is about 100%.
Pledge Term
The Pledge Contract will enter into force once the shares herein are
registered onto the shareholder name list of Langyi, and the pledge term and the
term of Service Agreement remain the same.
During the pledge term, if Langyi fails to pay technical and consulting
service fees according to Service Agreement, the Pledgee will be entitled to
exercise its pledge right according to this Contract.
4. HOLDING THE CERTIFICATES OF PLEDGE RIGHT
4.1 During the pledge term specified herein, Xxxxxxx shall hand over his
capital contribution certificate and shareholder name list regarding his
shares in Langyi to the Pledgee to keep. The Xxxxxxx shall hand over his
capital contribution certificate and shareholder name list regarding his
shares to the Pedgee in a week after signing this Contract.
4.2 The Pledgee has right to get the bonus produced from the pledged shares.
5. XXXXXXX'X REPRESENTATIONS AND WARRANTIES
The Xxxxxxx is the lawful owner of the pledged shares.
Once the Pledgee exercises its pledge right according to this Contract at
any time, there shall be no interference from any other party.
The Pledgee has right to dispose and transfer its pledge right according to
the way set forth herein.
The Xxxxxxx does not set any pledge right on his shares except the
Pledgee's.
6. XXXXXXX'X WARRANTIES
During the effective term of this Contract, the Xxxxxxx warrants to the
Pledgee that:
6.1.1 Except the shares transfer made by the Xxxxxxx to Linktone Ltd or the
person appointed by Linktone Ltd in accordance with the Contract Regarding
Exclusive Purchasing Right reached between the Xxxxxxx, Linktone Ltd, and
Langyi on December 14, 2007, without the Pledgee's prior written
approval, the Xxxxxxx may not transfer his shares or set or permit any
pledge on his shares that may affect the rights and interests of the
Pledgee;
6.1.2 The Xxxxxxx will abide by all the laws and regulations relating to right
pledge, and in five days after receiving the notice, order, or proposal
issued or made by the concerned authority, it will present such notice,
order, or proposal to the Pledgee which the Xxxxxxx shall abide by, or
raise opposing opinion and presentation towards such matter according to
the reasonable request of the Pledgee or with the approval of the Pledgee.
6.1.3 The Xxxxxxx will immediately notify the Pledgee of any event or any
received notice that may affect the Xxxxxxx'x shares or rights of any part,
and of any event or any received notice that may change any undertaking and
obligation of the Xxxxxxx specified herein or that may affect obligation of
the Xxxxxxx specified herein.
The Xxxxxxx agrees that the Pledgee's execution of its pledge right
obtained herein shall not be interrupted or impeded by the Xxxxxxx, the
Xxxxxxx'x successor, the Xxxxxxx'x client, or any other person by legal means.
The Xxxxxxx guarantees to the Pledgee that, in order to protect and
consummate the guarantee under this Contract on the payment of the technical and
consulting service fees under Service Agreement, the Xxxxxxx will faithfully
sign and urge the other parties relevant to the pledge right to sign all the
right certificates and covenants required by the Pledgee and/or conduct and urge
the other concerned parties to conduct the acts required by the Pledgee, provide
convenience for the Pledgee's execution of its rights and authorization, sign
all the shares ownership change documents with the Pledgee or the Pledgee's
appointed person (natural person/legal person), and
provide the Pledgee all necessary notices, orders, and decisions regarding
pledge right in a reasonable time.
The Xxxxxxx guarantees to the Pledgee that the Xxxxxxx will abide by and
fulfill all its guarantees, warranties, agreements, representations, and
conditions. If the Xxxxxxx fails to fulfill or wholly fulfill its guarantees,
warranties, agreements, representations, and conditions, the Xxxxxxx shall be
responsible for all the losses caused to the Pledgee due to that reason.
7. DEFAULT
All the following events shall be considered as defaults:
Langyi fails to fully pay the payable technical and consulting service fees
under Service Agreement;
Any representation or undertaking made by the Xxxxxxx in Article 5 hereof
contains material misleading or false information, and/or the Xxxxxxx violates
any of his representations or warranties in Article 5;
The Xxxxxxx violates any of his warranties specified in Article 6;
The Xxxxxxx violates any provision hereof;
Except 6.1.1 hereof, the Xxxxxxx abandons the pledged shares or transfer
the pledged shares without the prior written approval of the Pledgee;
Any loan, guarantee, damages, undertaking, or other debts of Pledge rot the
outside that: (i) needs to be fulfilled or paid in advance due to the Xxxxxxx'x
breaching act; or (ii) becomes due but cannot be fulfilled or paid on time,
causes the Pledgee to believe that the Xxxxxxx'x ablity to fulfill his
obligations herein has been affected;
The Xxxxxxx fails to pay general debts or other debts;
Some newly promulgated law makes this Contract illegal or makes the Xxxxxxx
unable to fulfill his obligations herein;
This Contract become unenforceable or any of the governmental approvals,
permits, or authorizations that make this Contract lawful and valid is revoked,
suspended, void, or substantially changed;
The unfavorable change of the Xxxxxxx'x asset causes the Pledgee to believe
that the Xxxxxxx'x ablity to fulfill his obligations herein has been affected;
The successor or trustee of Langyi can only partly perform or refuses to
perform the payment
obligation in Service Agreement.
The other circumstances under which the Pledgee cannot execute its pledge
right according to laws.
If the Xxxxxxx is aware of or finds out any event specified in Clause 7.1
or any matter that may cause such event to happen, the Xxxxxxx shall notify the
Pledgee in written form immediately.
Unless that the default specified in Clause 7.1 is totally solved to the
satisfaction of the Pledgee, the Pledgee may, after sending the Xxxxxxx a
default notice at the moment when or at any time after such default occurs,
require the Xxxxxxx to immediately pay off all the debts and the other payable
money in Service Agreement or execute his pledge right according to Article 8
hereof.
8. EXECUTION OF PLEDGE RIGHT
Before all the technical and consulting service fees specified in Service
Agreement are paid and without the written approval of the Pledgee, the Xxxxxxx
may not transfer the pledge right.
The Pledgee shall deliver a default notice to the Xxxxxxx before executing
its pledge right.
Bound to Clause 73. hereof, the Pledgee may dispose its pledge right at the
same time of sending out a default notice or at any time after sending out a
default notice;
The Pledgee has the right to get paid first with the shares-converted
money, the money from shares auction, or the money from shares-selling, of all
or part of the Xxxxxxx'x shares herein until all the paid technical and
consulting service fees and the other payables specified in Service Agreement
are paid
While the Pledgee executes its pledge right according to this Contract, the
Xxxxxxx may not create any impediment but shall provide necessary assistance for
the Pledgee to fulfill its pledge right.
9. TRANSFER
The Xxxxxxx has no right to donate or transfer his rights or obligations
herein without the prior written approval of the Pledgee.
This Contract is binding to the Xxxxxxx and his successor, and to the
Pledgee and each of its successors or assignees.
The Pledgee may, at any time, transfer all or any of its rights or
obligations herein to its appointed person (natural person/legal person), and in
such case, the assignee shall have the same rights and obligations herein just
like a party of this Contract. While transfer all or any of its rights
or obligations herein, the Xxxxxxx shall, upon the request of the Pledgee, sign
all the agreements and/or documents relating to such transfer.
If such transfer causes a change to the Pledgee, the new two parties shall
sign a new pledge contract.
10. TERMINATION
After all the technical and consulting service fees under Service Agreement
are paid off and Langyi no longer has any obligation under Service
Agreement, this Contract will be terminated, and the Pledgee shall cancel
or rescind this Contract as soon as possible within a reasonably feasible
time.
11. PROCEDURAL FEES AND OTHER COSTS
All the costs and actual expenses relating to this Contract, including but
not limited attorney's fees, printing fee, stamp tax, and any other taxes and
fees, shall be borne by the Xxxxxxx. If any law requires the Pledgee to pay such
costs or fees, the Xxxxxxx shall fully reimburse the Pledgee for them.
If the failure of the Xxxxxxx to pay any of his payable taxes or fees
according to this Contract, or any other reasons makes the Pledgee take any
measure or use any method to claim for the unpaid, the Xxxxxxx shall bear all
the costs that are caused by such reason (including but not limited to all kinds
of taxes, procedural fees, management fees, litigation fees, attorney's fees,
and all kinds of insurance premiums).
12. FORCE MAJEURE
If the performance of one party is delayed or impeded due to the reason of
force majeure, then such party will not be responsible for its delayed or
impeded performance. Force majeure refers to any event that is beyond reasonable
control and unavoidable even under the reasonable care of the affected party,
including but not limited to governmental act, natural force, fire, explosion,
geographical change, storm, flood, earthquake, typhoon, lightening, or war.
Credit, fund, or financing may not be considered as the events that are beyond
reasonable control. The affected by forece majeure and seeking to be relieved of
its obligation of this Contract or any provision hereof shall notify the other
party of such event and its measures to deal with it as soon as possible.
While the affected party does not have to be liable for its performance
delay or non-performance caused by force majeure, the affected party must take
reasonable efforts during such force majeure, and moreover, such liability
exemption is only limited to the part of the delayed or impeded performance.
Once the reason for liability exemption is corrected or remedied, the two
parties agree to take the best efforts to recover the performance of this
Contract.
13. SETTLEMENT OF DISPUTE
This Contract shall be executed and interpreted according to Chinese laws.
Any dispute arising from the interpretation and performance of this
Contract shall be settled by the parties hereto first through friendly
negotiation. If such dispute cannot be settled, then any party may submit such
dispute to China International Economic and Trade Arbitration Commission and
have that Commission to arbitrate it according to its arbitration rules
effective by then in Shanghai; the arbitration language is Chinese. The
arbitration award will be final and binding to all the parties.
14. NOTICE
14.1 The notices sent out by the two parties for the performance of their
respective rights and obligations herein shall be made in written form. As
for the notice sent by a special person, it will be considered have been
served upon its actual delivery; as for the notice sent by telegraph or by
fax, the sending date shall be considered as the arrival date, and if the
arrival date is not a business day or the notice is sent after business
hours, then the next business day after such arrival shall be considered
the arrival date. The target addresses are those of the two parties on the
first page of this Contract or the addresses informed by any party in
written form anytime afterwards. Written form includes fax or telegraph
15. APPENDIXES
All the appendixes hereof are an indispensable part of this Contract.
16. BECOME EFFECTIVE
Any modification, amendment and supplementation to this Contract must be
made in written form and signed and seal by both parties.
This Contract is made in Chinese and in two copies.
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Agreed and signed by:
Pledgee: Shanghai Linktone Software Co., Ltd. (seal)
/s/ Shanghai Linktone Software Co., Ltd.
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Authorized Representative:
Xxxxxxx: Xxxx Xxx
/s/ Xxxx Xxx (signature)
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APPENDIXES:
1. Shareholder name list of Langyi
2. Capital Contribution Certificate for the Establishment of Langyi
3. Agreement for Exclusive Technical and Consulting Services
