EXHIBIT 10.17
CONSULTING AND SERVICES AGREEMENT
This Consulting and Services Agreement (hereinafter referred to as the
"Agreement") has been executed by and between the following parties on April 5,
2005 in Guangzhou.
Party A: Guangzhou 3G Information Technology Co., Ltd. (Chinese Company Name
"________________"), a company incorporated in Guangzhou, China whose principal
place of business is 11 Caipin Road, Science City, High & New Technology
Xxxxxxxxxx Xxxxxxxxxxx Xxxx, Xxxxxxxxx, 000000, Xxxxx (Chinese Address
"________________"
Party B: An affiliated Chinese entity of Party A: Guangzhou Sunroom Information
Industrial Co, Ltd., (Chinese Company Name "________________") a company
incorporated in Guangzhou, China whose principal place of business is 00/X,
Xxxxxxx Xxxxxxxx. Xx. 000, Xxxxxx Xxxx. Tianhe Guangzhou 510630, China (Chinese
address "________________")
WHEREAS:
(1) Party A is a wholly foreign owned enterprise established in the People's
Republic of China (hereinafter referred to as "China"), and has the resources to
provide technical and consulting services;
(2) Party B is a company with exclusively domestic capital registered in China
and may engage in the business of providing value-added telecom services (VAS),
internet and mobile entertainment application development, mobile game software
design and development, mobile customer relationship management (CRM) services
for China's telecom operators, mobile marketing and promotion services,
management and consulting services, mobile internet information technology,
mobile payment and mobile point of sale (POS) solutions, mobile consumer
analytics, mobile data-mining, internet e-commerce and mobile commerce, mobile
applications based on WAP, KJava, IVR, MS, MFLASH, short messaging services
(SMS), multimedia messaging services (MMS), outsourced game development, and
other mobile value-added services (VAS) in the PRC, and operates the following
internet and mobile gaming web sites: xxx.xx000.xxx.
(3) Party A agrees to provide Party B with exclusive technical consulting and
related services in telecommunications value-added business during the term of
this Agreement utilizing its own advantages in human capital and information,
and Party B agrees to accept the technical consultations and services provided
by Party A.
Wherefore, through mutual discussion, the parties have reached the following
agreements:
1. Exclusive Consultations and Services: Exclusive Interest
1.1 During the term of this Agreement, Party A agrees to provide Party B with
relevant technical consultations and services as Party B's exclusive provider of
technical and consultation services, in accordance with the conditions of this
Agreement (for specific contents, see Attachment 1).
1.2 Party B agrees to accept the technical consultations and services provided
by Party A. Party B further agrees that unless Party A consents in writing in
advance, during the term of this Agreement, Party B shall not accept technical
consultations and services provided by any third party regarding the
aforementioned business.
1.3 Party A shall have exclusive interests in all rights, ownership, interests
and intellectual properties arising from the performance of this Agreement,
including but not limited to copyrights, patents, technical secrets, trade
secrets and others, regardless of whether they have been developed by Party A or
by Party B based on Party A's intellectual properties.
2. The Calculation and Payment of the Technical Consulting and Service Fee
(hereinafter referred to as "Consulting Service Fee")
The parties agree that the Consulting Service Fee under this Agreement shall be
determined and paid based on the methods set forth in Attachment 2.
3. Representations and Warranties
3.1 Party A hereby represents and warrants as follows:
3.2.1 Party A is a wholly foreign owned enterprise legally registered and
validly existing in accordance with Chinese laws.
3.2.2 Party A's execution and performance of this Agreement is within the
scope of its business operations; Party A has taken necessary corporate
actions and given appropriate authorization and has obtained the
consent and approval from third parties and government agencies, and
will not violate the restrictions of laws binding or having an impact
thereon.
3.2.3 This Agreement shall constitute Party A's legitimate and valid
obligations as soon as it is executed, and shall be enforceable against
it.
3.2 Party B hereby represents and warrants as follows:
3.2.1 Party B is a company legally registered and validly existing in
accordance with Chinese laws and may engage in VAS business as
approved by the authority Chinese government departments;
3.2.2 Party B's execution and performance of this Agreement is within the
scope of its business operations; Party B has taken necessary corporate
actions and given appropriate authorization and has obtained the
consent and approval from third parties and government agencies, and
will not violate the restrictions of laws binding or having an impact
thereon.
3.2.3 This Agreement shall constitute Party B's legitimate and valid
obligations as soon as it is executed, and shall be enforceable against
it.
4. Confidentiality Clauses
4.1 Party B agrees to maintain the confidentiality of confidential materials and
information (hereinafter referred to as "Confidential Information") of Party A
that Party B learns or has access to due to its acceptance of Party A's
exclusive consultations and services, and shall take various security measures
designed to maintain such confidentiality; without the prior written consent of
Party A, Party B shall not disclose, give or transfer such Confidential
Information to any third party. Upon the termination of this Agreement, Party B
shall return any document, material or software that contains such Confidential
Information to Party A at Party A's request, or shall destroy same on his own
and shall delete any Confidential Information from the relevant memory devices
and shall not continue to use such Confidential Information.
4.2 The parties agree that this section shall survive changes to, rescission or
termination of this Agreement.
5. Indemnification
Party B shall indemnify Party A for and hold Party A harmless from any loss,
injury, obligation or expenses caused by any lawsuit, claims or other demands
against Party A arising from or caused by contents of consultations and services
requested by Party B.
6. Effectiveness and Term
6.1 This Agreement shall be executed on the date first above written and shall
take effect as of the even date therewith. Unless terminated early in accordance
with the provisions of this Agreement or relevant agreements separately executed
between the parties, the term of this Agreement shall be years.
6.2 The term of this Agreement shall not be extended unless confirmed in writing
by Party A prior to the expiration thereof. The extended term shall be
determined by the parties to this Agreement through consensus.
7. Termination
7.1 Termination upon date of expiration. Unless renewed in accordance with the
relevant terms of this Agreement, this Agreement shall be terminated upon the
date of expiration thereof.
7.2 Early termination. During the term of this Agreement, unless Party A commits
a gross fault, fraudulent act, other illegal acts or becomes bankrupt, Party B
shall not terminate this Agreement early. Notwithstanding the aforementioned
covenant, Party A shall have the right to terminate this Agreement upon 30 days
of written notice to Party B at any time.
7.3 Terms that survive termination. The rights and obligations of the parties
under Article 4 and Article 5 shall survive the termination of this Agreement.
8. Resolution of Disputes
In the event of any dispute with respect to the construction and performance of
the provisions of this Agreement, the parties shall hold consultations in good
faith to resolve same. Upon failure of such consultations, either party may
submit the relevant dispute to the China International Economics and Foreign
Trade Arbitration Commission for resolution by arbitration, in accordance with
its current arbitration rules. The arbitration shall be performed in Shanghai,
and the language used during arbitration shall be Chinese. The arbitration
ruling shall be final and binding on both parties.
9. Force Majeure
9.1 "Force majeure" shall refer to any event beyond the reasonable control of
either party and that still cannot be avoided even if the party affected has
exercised reasonable care, including but not limited government actions, acts of
God, fire, explosions, storms, flood, earthquakes, tides, lightning or war. But
a lack of credit, funds or financing shall not be deemed a circumstances beyond
the reasonable control of either party. The party affected by a "force majeure
event" shall notify the other party of such relief from liability as soon as
possible.
9.2 In the event that the performance of this Agreement is delayed or impeded by
the aforementioned "force majeure," the party affected by such force majeure
shall not be liable in any way under this Agreement to the extent of such delay
or impedance. The party affected shall take appropriate measures to mitigate or
eliminate the impact of such "force majeure" and shall attempt to resume the
performance of obligations delayed or impeded by such "force majeure." As soon
as the force majeure event is eliminated, the parties agree to use their best
efforts to resume the performance of this Agreement.
10. Notices
Notices or other communications sent by either party as required by this
Agreement shall be written in Chinese, and a notice shall be deemed served when
it is delivered to the address of either party or the addresses of both parties
below by personal delivery, registered mail, mail with prepaid postage or
recognized express mail or facsimile.
To Party A :
Attn: Xx. Xxxx Mengjiang AIAI1/2-, General Manager
Guangzhou 3G Information Technology Co., Ltd
("________________")
00 Xxxxxx Xxxx, Xxxxxxx Xxxx, Xxxx & New Technology
Xxxxxxxxxx Xxxxxxxxxxx Xxxx, Xxxxxxxxx, 000000,
Xxxxx (Chinese Address "________________")
To Party B
Attn: Xx. Xxxx, Yongchao IoOA(3)<172>, General Manager
Guangzhou Sunroom Informaiton Industrial Co., Ltd
("________________")
00/X, Xxxxxxx Xxxxxxxx. Xx. 000, Xxxxxx Xxxx.
Tianhe Xxxxxxxxx 000000, Xxxxx (Chinese Address
("________________")
11. ASSIGNMENT
Unless Party A's prior written consent is obtained, Party B shall not assign the
rights enjoyed to thereby and obligations undertaken thereby under this
Agreement to any third party.
12. SEVERABILITY
In the event that any provisions of this Agreement are invalid or unenforceable
due to inconsistency with law, then such provisions shall only be invalid or
unenforceable to the extent of the jurisdiction of such law, and shall not
affect the legal validity of the remaining provisions of this Agreement.
13. AMENDMENTS AND SUPPLEMENTS
Any amendments and supplements to this Agreement shall be in writing. The
amendment agreements and supplementary agreements that have been signed by the
parties and that relate to this Agreement shall be an integral part of this
Agreement and shall have the same legal validity as this Agreement.
14. GOVERNING LAWS
This Agreement shall be governed by laws of China and shall be construed in
accordance therewith.
IN WITNESS WHEREOF, the parties have caused their authorized representatives to
execute this Agreement as of the date first above written.
Party A: Guangzhou 3G Information Technology Co., Ltd (Chinese Company Name
"________________")
By: /s/ Liao, Mengjiang
-----------------------------------
Name: Liao, Mengjiang
Title: General Manager
Party B: An affiliated Chinese entity of Party A: Guangzhou Sunroom Information
Industrial Co, Ltd., (Chinese Company Name "________________")
By: /s/ Xxxx Xxxxxxxx
-----------------------------------
Name: Xxxx Xxxxxxxx
Title: General Manager
ATTACHMENT 1: Table of Contents of Technical Consultations and Services
Including furnishing of training of personnel, network platforms appurtenant to
management and information services required for Party B's business, making
recommendations to Party B regarding the telecommunications value-added and
other forms of services accepted by the parties.
ATTACHMENT 2: The Calculation and Payment of the Technical Consulting and
Service Fee
For each Value-added Service sold by Party B, Party B shall pay Party A 100% of
each income in technical consulting and service fee. Party B shall settle and
pay the aforementioned technical consulting and service fee by the 15th of each
month.
The aforementioned method of calculation may be adjusted quarterly by Party A
and Party B depending on the current actual circumstances.
SHARE PLEDGE AGREEMENT
This Share Pledge Agreement (hereinafter referred to as this "Agreement") has
been executed by and between the following parties on April 5, 2005 in
Guangzhou, PRC.
PLEDGEE: Guangzhou 3G Information & Technology Limited.
PLEDGOR: Sun,Zhengquan (PRC ID: 420111196801105655), Liao, Mengjiang (PRC ID:
432503197202144812), and Wang, Yongchao (PRC ID: 440823197306096917),
shareholders of an Affiliated Chinese Entity of Pledgee, located at Xxxx 000,
Xx. 00 Xxxxxxxxxx Xxxx, Xxxxxx, Xxxxxxxxx, Xxxxx; at Suntek New Technology
Research & Design Co, Ltd., Nanda Road, Shipai Tianhe, Guangzhou, Guangdong,
China(pound)>>and Suntek New Technology Research & Design Co, Ltd., Nanda Road,
Shipai Tianhe, Guangzhou, Guangdong, China respectively (hereinafter jointly
referred to as the "PLEDGORS");
WHEREAS:
1. Pledgors are citizens of the People's Republic of China (hereinafter referred
to as "China"), and hold 100% of the shares in Guangzhou Sunroom Information
Industrial Co., Ltd. ("Guangzhou Sunroom"). Guangzhou Sunroom is a limited
liability company registered in Guangzhou, China.
2. Pledgee is a wholly foreign owned entity registered in Guangzhou, China, and
is engaged in the business of providing technical and consulting services.
3. Pledgee and Guangzhou Sunroom executed a Consulting Services Agreement
(hereinafter referred to as the "Service Agreement") on April 5, 2005;
3. To ensure that Pledgee collects consulting and service fees regularly from
Guangzhou Sunroom owned by Pledgors, Pledgors hereby pledge all of the shares in
Guangzhou Sunroom held by him as security for the consulting and service fees
under the Service Agreement.
To perform the provisions of the Service Agreement, Pledgors and Pledgee have
mutually agreed to execute this Agreement upon the following terms.
1. Unless otherwise provided herein, the terms below shall have the following
meanings:
1.1 Pledge: shall refer to the entire content set forth in Article 2 of this
Agreement.
1.2 Shares: shall refer to all of the shares lawfully held by Pledgors in
Guangzhou Sunroom.
1.3 Pledge Ratio: shall refer to the ratio between value of the pledge under
this Agreement and the service fees payable by Guangzhou Sunroom to Pledgee.
1.4 Term of Pledge: shall refer to the term set forth in Section 3.2 of this
Agreement.
1.5 Service Agreement: shall refer to the Consulting Services Agreement executed
by and between Guangzhou Sunroom owned by Pledgors and Pledgee on April 5, 2005.
1.6 Event of Default: shall refer to any circumstances set forth in Article 7 of
this Agreement.
1.7 Notice of Default: shall refer to the notice issued by Pledgee in accordance
with this Agreement declaring an Event of Default.
2. THE PLEDGE
2.1 Pledgors hereby pledge to Pledgee all of his shares in Guangzhou Sunroom.
"Pledge" shall refer to the right of Pledgee to be compensated on a preferential
basis with the conversion, auction or sales price of the shares held by
Pledgors.
3. THE PLEDGE RATIO AND TERM OF PLEDGE
3.1 The Pledge Ratio
3.1.1 The Pledge Ratio of the Pledge shall be approximately 100%.
3.2 Term of Pledge
3.2.1 The Pledge in accordance with this Agreement shall take effect as of the
date of recording on the shareholders list of Guangzhou Sunroom, and the
effective term of the Pledge shall be the same as the effective term of the
Service Agreement. The parties agree to complete the filing procedures of the
Pledge with the industry and commerce administration government authorities with
which Guangzhou Sunroom was registered after this Agreement takes effect.
3.2.2 DURING THE TERM OF THE PLEDGE, IN THE EVENT THAT PLEDGORS FAIL TO PAY THE
EXCLUSIVE TECHNICAL CONSULTING SERVICE FEES IN ACCORDANCE WITH THE SERVICE
AGREEMENT, PLEDGEE SHALL HAVE THE RIGHT TO DISPOSE OF THE PLEDGE IN ACCORDANCE
WITH THE PROVISIONS OF THIS AGREEMENT.
4. CUSTODY OF RECORDS FOR SHARES SUBJECT TO PLEDGE
4.1 During the Term of Pledge set forth in this Agreement, Pledgors shall submit
to Pledgee's custody the capital contribution certificate for the Shares and the
shareholder's list within one week from the execution of this Agreement.
4.2 Pledgee shall have the right to collect dividends generated by the Shares.
5. REPRESENTATIONS AND WARRANTIES OF PLEDGORS
5.1 Pledgors are the lawful owners of the Shares.
5.2 Whenever Pledgee exercises its right with respect to the Pledge in
accordance with this Agreement, there shall not be any intervention from any
other parties.
5.3 Pledgee shall have the right to dispose of and transfer the Pledge in
accordance with the provisions set forth in this Agreement.
5.4 Except the Pledgee, the Pledgors have not placed any other pledge rights on
the Shares.
6. COVENANTS OF THE PLEDGORS
6.1 Pledgors hereby promise to the Pledge for the interest of the Pledgee, that
during the term of this Agreement, Pledgors shall:
6.1.1 Not transfer the Shares, place or permit the existence of any pledge that
may affect the Pledgee's rights and interests in the Shares, without the prior
written consent of Pledgee;
6.1.2 Comply with the provisions of all laws and regulations applicable to the
pledge of rights, and within 5 days of receipt of any notice, order or
recommendation issued or prepared by relevant competent authorities regarding
the Pledge, shall present the aforementioned notice, order or recommendation to
Pledgee, and shall comply with the aforementioned notice, order or
recommendation or submit objections and representations with respect to the
aforementioned matters upon Pledgee's reasonable request or upon consent of
Pledgee;
6.1.3 Promptly notify Pledgee of any event or notice received by Pledgee that
may have an impact on Pledgee's rights to the Shares or any portion thereof, as
well as promptly notify Pledgee of any event or notice received by Pledgee that
may have an impact on any guarantees and other obligations of Pledgor arising in
connection with this Agreement.
6.2 Pledgors agree that the rights acquired by Pledgee in accordance with this
Pledge Agreement with respect to Pledge shall not be interrupted or harmed by
Pledgors or any heirs or representatives of Pledgors or any other persons
through operation of law.
6.3 Pledgors hereby warrant to Pledgee that to protect or perfect the guarantee
provided by this Agreement for payment of the consulting service fees under the
Service Agreement, Pledgors hereby execute in good faith and shall cause other
parties who have a stake in the Pledge to execute all rights certificates,
agreements, deeds and/or covenants required by Pledgee and / or shall perform
and shall cause other parties who have a stake in the Pledge to perform actions
required by Pledgee, and facilitate the exercise by Pledgee of its rights and
authority granted thereto by this Agreement, execute all relevant documents that
modify stock certificates with Pledgee or designee(s) of Pledgee (natural
persons / legal persons), and shall provide to Pledgee within a reasonable time
all notices, orders and decisions regarding the Pledge that are required by
Pledgee.
6.4 Pledgors hereby warrant to Pledgee that for Pledgee's interest, Pledgors
shall comply with representations and conditions under this Agreement. In the
event of failure or partial performance of its guarantees, promises, agreements,
representations and conditions, Pledgors shall indemnify Pledgee for all of its
losses resulting therefrom.
7. EVENT OF DEFAULT
7.1 The following circumstances shall be deemed Events of Default:
7.1.1 Guangzhou Sunroom fails to pay in full the exclusive technical service
fees payable under the Service Agreement;
7.1.2 Any representation or warranty by Pledgors in Article 5 of this Agreement
contains material misrepresentations or errors, and/or Pledgors violate any of
the warranties in Article 5 of this Agreement;
7.1.3 Pledgors breach any of the covenants in Article 6 of this Agreement;
7.1.4 Pledgors breach any provisions of this Agreement;
7.1.5 Pledgors give up the Shares pledged or assign the Shares pledged without
the written consent of Pledgee;
7.1.6 Any of Pledgors' own loans, guarantees, indemnification, promises or other
debt liabilities to any third party or parties (1) have been subject to a demand
of early repayment or performance; or (2) have become due but are not capable of
being repaid or performed in a timely manner, thus leading Pledgee to believe
that Pledgors' ability to perform its obligations under this Agreement has been
affected;
7.1.7 Pledgors are unable to repay general debts and other debts;
7.1.8 The promulgation of applicable laws have rendered this Agreement illegal
or have rendered it impossible for Pledgors to continue to perform its
obligations under this Agreement;
7.1.9 All approvals, licenses, permits or authorizations of government agencies
that make this Agreement enforceable, legal and effective have been withdrawn,
terminated, invalidated or substantively changed;
7.1.10 Adverse changes in properties owned by Pledgors, which lead Pledgee to
believe that that Pledgors' ability to perform its obligations under this
Agreement has been affected;
7.1.11 The successor or custodian of Guangzhou Sunroom is capable of only
partially perform or refuses to perform the payment obligations under the
Service Agreement;
7.1.12 Breach of this Agreement resulting from breach of other provisions of
this Agreement by Pledgors' action or omission; and
7.1.13 Other circumstances where Pledgee is unable to exercise its right with
respect to the Pledge.
7.2 Upon information or discovery of the occurrence of any circumstances or
event that may lead to the aforementioned circumstances described in Section
7.1, Pledgors shall immediately notify Pledgee in writing. Unless an Event of
Default set forth in this Section 7.1 has been successfully resolved to
Pledgee's satisfaction, Pledgee may issue a Notice of Default to Pledgors in
writing upon the occurrence of the Event of Default or at any time thereafter
and demand that Pledgors immediately pay all outstanding payments due under the
Service Agreement and all other payments due to Pledgee, or dispose of the
Pledge in accordance with the provisions of Article 8 of this Agreement.
8. EXERCISE OF PLEDGE
8.1 Prior to the full payment of the consulting service fee described in the
Service Agreement, without the Pledgee's written consent, Pledgors shall not
assign the Pledge.
8.2 Pledgee shall issue a Notice of Default to Pledgors when exercising the
Pledge.
8.3 Subject to the provisions of Section 7.3, Pledgee may exercise the right to
dispose of the Pledge concurrently with the issuance of the Notice of Default in
accordance with Section 7.2 or at any time after the issuance of the Notice of
Default.
8.4 Pledgee shall have the right to be compensated with the conversion price of
the Shares under this Agreement in part or in whole, in accordance with legally
mandated procedures, or with the auction or sale price of such Shares on a
preferential basis, until all outstanding consulting service fees and all other
outstanding payments under the Service Agreement have been paid off.
8.5 When Pledgee disposes of the Pledge in accordance with this Agreement,
Pledgors shall not erect any impediment, and shall provide necessary assistance
to enable Pledgee to realize its Pledge.
9. ASSIGNMENT
9.1 Unless Pledgee consents in advance, Pledgors shall not have the right to
assign or delegate its rights and obligations under this Agreement.
9.2 This Agreement shall be binding on Pledgors and the successors thereof, and
shall be valid with respect to Pledgee and each of the successors and assigns
thereof.
9.3 At any time, Pledgee may assign any and all of its rights and obligations
under the Service Agreement to its designee(s) (natural / legal persons), in
which case the assigns shall have the rights and obligations of Pledgee under
this Agreement, as if it were a party to this Agreement. When the Pledgee
assigns the rights and obligations under the Service Agreement, upon Pledgee's
request, Pledgors shall execute relevant agreements and / or documents relating
to such an assignment.
9.4 In the event of a change in Pledgee due to an assignment, the new parties to
the Pledge shall execute a new pledge agreement.
10. TERMINATION
10.1Upon the payoff of the consulting service fees under the Service Agreement
and Pledgors no longer undertakes any obligations under the Service Agreement,
this Pledge Agreement shall be terminated, and Pledgors shall then cancel or
terminate this Agreement as soon as reasonably practicable.
11. HANDLING FEES AND OTHER EXPENSES
11.1 All fees and out of pocket expenses relating to this Agreement, including
but not limited legal costs, cost of production, stamp tax and any other taxes
and fees shall be borne by Pledgors. In the event that the law requires Pledgee
to pay relevant taxes, Pledgors shall provide full reimbursement for all taxes
already paid by Pledgee.
11.2 IN THE EVENT THAT PLEDGORS FAIL TO PAY ANY TAXES AND FEES IN ACCORDANCE
WITH THE PROVISIONS OF THIS AGREEMENT OR IN THE EVENT THAT DUE TO OTHER REASONS,
PLEDGEE ATTEMPTS TO RECOVER TAXES AND FEES PAYABLE BY PLEDGORS THROUGH ANY
MEANS, ALL EXPENSES (INCLUDING BUT NOT LIMITED TO VARIOUS TAXES, HANDLING FEES,
MANAGEMENT FEES, COST OF LITIGATION, ATTORNEY'S FEES AND VARIOUS INSURANCE
PREMIUMS, ETC.) RESULTING THEREFROM SHALL BE BORNE BY PLEDGORS.
12. FORCE MAJEURE
12.1 "Force majeure" shall refer to any event beyond the reasonable control of
either party and that still cannot be avoided even if the party affected has
exercised reasonable care, including but not limited government actions, acts of
God, fire, explosions, storms, flood, earthquakes, tides, lightning or war. But
a lack of credit, funds or financing shall not be deemed a circumstances beyond
the reasonable control of either party. The party affected by a "force majeure
event" shall notify the other party of such relief from liability as soon as
possible.
12.2 In the event that the performance of this Agreement is delayed or impeded
by the aforementioned "force majeure," the party affected by such force majeure
shall not be liable in any way under this Agreement to the extent of such delay
or impedance. The party affected shall take appropriate measures to mitigate or
eliminate the impact of such "force majeure" and shall attempt to resume the
performance of obligations delayed or impeded by such "force majeure." As soon
as the force majeure event is eliminated, the parties agree to use their best
efforts to resume the performance of this Agreement.
13. RESOLUTION OF DISPUTES
13.1 This Agreement shall be governed by laws of China and shall be construed in
accordance therewith.
13.2 In the event of any dispute with respect to the construction and
performance of the provisions of this Agreement, the parties shall negotiate in
good faith to resolve same. Upon failure of such negotiations, any party may
submit the relevant disputes to the China International Economics and Foreign
Trade Arbitration Commission for resolution by arbitration, in accordance with
its current arbitration rules., and the language used during arbitration shall
be Chinese. The arbitration ruling shall be final and binding on both parties.
14. NOTICES
14.1 Notices sent by the parties to perform the rights and obligations under
this Agreement shall be in writing. If sent by personal delivery, such a notice
shall be deemed served upon actual delivery; if sent by telex or facsimile, such
a notice shall be deemed served at the time of transmission. If the date of
transmission is not a business day or if transmission is after hours, then the
next consecutive business day shall be the date of service. The address of
service shall be the addresses of the two parties on the first page of this
Agreement or addresses notified in writing at any time subsequently. In writing
shall include facsimiles and telexes.
15. ATTACHMENTS
The attachments set forth in this Agreement shall be an integral part hereof.
16. EFFECTIVENESS
Any amendments, changes and supplements to this Agreement shall be in writing
and shall take effect upon affixation of the signatures and seals of the
parties.
16.2 This Agreement is written in English in triplicate copies.
(Signature Page to Follow)
PLEDGEE: Guangzhou 3G Information Technology Co., Ltd.
Authorized representative: /s/ Liao Mengjiang
------------------------
Liao Mengjiang
Title: General Manager
PLEDGORS:
/s/ Sun Zhengquan
Sun Zhengquan:
-----------------------------
/s/ Xxxx Xxxxxxxx
Xxxx Xxxxxxxx:
-----------------------------
/s/ Liao Mengjiang
Liao Mengjiang:
-----------------------------
POWER OF ATTORNEY
We SUN ZHENGQUAN (PRC ID: 420111196801105655), LIAO MENGJIANG (PRC ID:
432503197202144812), and WANG, YONGCHAO - (PRC ID: 440823197306096917), hereby
irrevocably authorize Xx. Xxxxxx Tongto exercise the following rights during the
term of this Power of Attorney:
Xx. Xxxxxx Xxxx is hereby authorized to exercise on my behalf at shareholders
meetings of GUANGZHOU SUNROOM INFORMATION INDUSTRIAL CO., LTD. (the "Company"),
all the shareholder's voting rights I am entitled to under Chinese laws and the
Company's bylaws, including but not limited to the sale or transfer of the
shares I hold in the Company in part or in whole, and designate and appoint on
my behalf at the shareholders meetings of the Company, the chief executive
officer of the Company.
The aforementioned authorization shall be subject to Xx. Xxxxxx Xxxx being an
employee of PACIFICNET STRATEGIC INVESTMENT HOLDINGS LIMITED. ("PacificNet
Strategic"). As soon as Xx. Xxxxxx Xxxx no longer holds any position with
PacificNet Strategic, I shall withdraw the authorization granted thereto herein,
and shall designate / authorize another employee of PacificNet Strategic to
exercise all of my shareholders voting rights at shareholders meetings of the
Company.
During the valid existence of the Company, unless the Operating Agreement
jointly executed by and between Guangzhou 3G Information Technology Co., Ltd.
and the Company is terminated early due to any reason, the term of this Power of
Attorney shall be 5 years from the date of execution of this Power of Attorney.
SIGNATURE:
Sun Zhengquan: /s/ Sun Xxxxxxxxx
Xxxx Mengjiang: /s/ Liao Mengjiang
Xxxx Xxxxxxxx: /s/ Xxxx Xxxxxxxx
Date: March 28, 2005
CONSULTING AND SERVICES AGREEMENT
This Consulting and Services Agreement (hereinafter referred to as the
"Agreement") has been executed by and between the following parties on October
10, 2004 in Guangzhou.
Party A: Guangzhou Dianxun Digital Network Technology Co., Ltd (Chinese Company
Name "________________"), a company incorporated in Guangzhou, China whose
principal place of business is Xxxx 000, XxxxxXx Xxxxxxxx, Xx You Xxx Xxxx,
Xxxxxx XxxXxxxx, Xxxxxxxxx 000000, Xxxxx (Chinese Address "________________")
Party B: An affiliated Chinese entity of Party A: GuangZhou DianXun Company
Limited (Chinese Company Name "________________"), a company incorporated in
Guangzhou, China whose principal place of business is Xxxx 000, XxxxxXx
Xxxxxxxx, Xx You Xxx Xxxx, Xxxxxx XxxXxxxx, Xxxxxxxxx 000000, Xxxxx (Chinese
Address "________________") .
WHEREAS:
(1) Party A is a wholly foreign owned enterprise established in the People's
Republic of China (hereinafter referred to as "China"), and has the resources to
provide technical and consulting services;
(2) Party B is a company with exclusively domestic capital registered in China
and may engage in the business of providing value-added telecom services (VAS),
internet and mobile entertainment application development, mobile game software
design and development, mobile customer relationship management (CRM) services
for China's telecom operators, mobile marketing and promotion services,
management and consulting services, mobile internet information technology,
mobile payment and mobile point of sale (POS) solutions, mobile consumer
analytics, mobile data-mining, internet e-commerce and mobile commerce, mobile
applications based on WAP, KJava, BREW, EMS, short messaging services (SMS),
multimedia messaging services (MMS), outsourced game development, and other
mobile value-added services (VAS) in the PRC, and operates the following
internet and mobile gaming web sites:
xxx.Xx000.xxx;
(3) Party A agrees to provide Party B with exclusive technical consulting and
related services in VAS service business during the term of this Agreement
utilizing its own advantages in human capital and information, and Party B
agrees to accept the technical consultations and services provided by Party A.
(4) Party A and Party B previously executed a Consulting Services Contract on
Dec 1, 2004, and the parties now desire to make amendments to the conditions of
said contract, and to execute this Agreement to replace said Consulting Services
Contract.
Wherefore, through mutual discussion, the parties have reached the following
agreements:
1. Exclusive Consultations and Services: Exclusive Interest
1.1 During the term of this Agreement, Party A agrees to provide Party B with
relevant technical consultations and services as Party B's exclusive provider of
technical and consultation services, in accordance with the conditions of this
Agreement (for specific contents, see Attachment 1).
1.2 Party B agrees to accept the technical consultations and services provided
by Party A. Party B further agrees that unless Party A consents in writing in
advance, during the term of this Agreement, Party B shall not accept technical
consultations and services provided by any third party regarding the
aforementioned business.
1.3 Party A shall have exclusive interests in all rights, ownership, interests
and intellectual properties arising from the performance of this Agreement,
including but not limited to copyrights, patents, technical secrets, trade
secrets and others, regardless of whether they have been developed by Party A or
by Party B based on Party A's intellectual properties.
2. The Calculation and Payment of the Technical Consulting and Service Fee
(hereinafter referred to as "Consulting Service Fee")
The parties agree that the Consulting Service Fee under this Agreement shall be
determined and paid based on the methods set forth in Attachment 2.
Representations and Warranties
3.1 Party A hereby represents and warrants as follows:
3.2.1 Party A is a wholly foreign owned enterprise legally registered and
validly existing in accordance with Chinese laws.
3.2.2 Party A's execution and performance of this Agreement is within the scope
of its business operations; Party A has taken necessary corporate actions and
given appropriate authorization and has obtained the consent and approval from
third parties and government agencies, and will not violate the restrictions of
laws binding or having an impact thereon.
3.2.3 This Agreement shall constitute Party A's legitimate and valid obligations
as soon as it is executed, and shall be enforceable against it.
3.2 Party B hereby represents and warrants as follows:
3.2.1 Party B is a company legally registered and validly existing in accordance
with Chinese laws and may engage in VAS business as approved by authority
Chinese government departments;
3.2.2 Party B's execution and performance of this Agreement is within the scope
of its business operations; Party B has taken necessary corporate actions and
given appropriate authorization and has obtained the consent and approval from
third parties and government agencies, and will not violate the restrictions of
laws binding or having an impact thereon.
3.2.3 This Agreement shall constitute Party B's legitimate and valid obligations
as soon as it is executed, and shall be enforceable against it.
4. Confidentiality Clauses
4.1 Party B agrees to maintain the confidentiality of confidential materials and
information (hereinafter referred to as "Confidential Information") of Party A
that Party B learns or has access to due to its acceptance of Party A's
exclusive consultations and services, and shall take various security measures
designed to maintain such confidentiality; without the prior written consent of
Party A, Party B shall not disclose, give or transfer such Confidential
Information to any third party. Upon the termination of this Agreement, Party B
shall return any document, material or software that contains such Confidential
Information to Party A at Party A's request, or shall destroy same on his own
and shall delete any Confidential Information from the relevant memory devices
and shall not continue to use such Confidential Information.
4.2 The parties agree that this section shall survive changes to, rescission or
termination of this Agreement.
5. Indemnification
Party B shall indemnify Party A for and hold Party A harmless from any loss,
injury, obligation or expenses caused by any lawsuit, claims or other demands
against Party A arising from or caused by contents of consultations and services
requested by Party B.
6. Effectiveness and Term
6.1 This Agreement shall be executed on the date first above written and shall
take effect as of the even date therewith. Unless terminated early in accordance
with the provisions of this Agreement or relevant agreements separately executed
between the parties, the term of this Agreement shall be ten years.
6.2 The term of this Agreement shall not be extended unless confirmed in writing
by Party A prior to the expiration thereof. The extended term shall be
determined by the parties to this Agreement through consensus.
7. Termination
7.1 Termination upon date of expiration. Unless renewed in accordance with the
relevant terms of this Agreement, this Agreement shall be terminated upon the
date of expiration thereof.
7.2 Early termination. During the term of this Agreement, unless Party A commits
a gross fault, fraudulent act, other illegal acts or becomes bankrupt, Party B
shall not terminate this Agreement early. Notwithstanding the aforementioned
covenant, Party A shall have the right to terminate this Agreement upon 30 days
of written notice to Party B at any time.
7.3 Terms that survive termination. The rights and obligations of the parties
under Article 4 and Article 5 shall survive the termination of this Agreement.
8. Resolution of Disputes
In the event of any dispute with respect to the construction and performance of
the provisions of this Agreement, the parties shall hold consultations in good
faith to resolve same. Upon failure of such consultations, either party may
submit the relevant dispute to the China International Economics and Foreign
Trade Arbitration Commission Guangzhou Chapter for resolution by arbitration, in
accordance with its current arbitration rules. The arbitration shall be
performed in Guangzhou, and the language used during arbitration shall be
Chinese. The arbitration ruling shall be final and binding on both parties.
9. Force Majeure
9.1 "Force majeure" shall refer to any event beyond the reasonable control of
either party and that still cannot be avoided even if the party affected has
exercised reasonable care, including but not limited government actions, acts of
God, fire, explosions, storms, flood, earthquakes, tides, lightning or war. But
a lack of credit, funds or financing shall not be deemed a circumstances beyond
the reasonable control of either party. The party affected by a "force majeure
event" shall notify the other party of such relief from liability as soon as
possible.
9.2 In the event that the performance of this Agreement is delayed or impeded by
the aforementioned "force majeure," the party affected by such force majeure
shall not be liable in any way under this Agreement to the extent of such delay
or impedance. The party affected shall take appropriate measures to mitigate or
eliminate the impact of such "force majeure" and shall attempt to resume the
performance of obligations delayed or impeded by such "force majeure." As soon
as the force majeure event is eliminated, the parties agree to use their best
efforts to resume the performance of this Agreement.
10. Notices
Notices or other communications sent by either party as required by this
Agreement shall be written in Chinese, and a notice shall be deemed served when
it is delivered to the address of either party or the addresses of both parties
below by personal delivery, registered mail, mail with prepaid postage or
recognized express mail or facsimile.
To Party A (Licensor):
Attn: Xx. Xxxxx, MingOAA/, General Manager
Guangzhou Dianxun Digital Network Technology Co., Ltd
("________________")
Xxxx 000, XxxxxXx Xxxxxxxx, Xxx You Xxx Xxxx,
Xxxxxx XxxXxxxx, Xxxxxxxxx 000000, Xxxxx
(Chinese Address "________________")
To Party B:
Attn: Xx. Xxxxx, MingOAA/, General Manager
GuangZhou DianXun Company Limited
("________________")
Xxxx 000, XxxxxXx Xxxxxxxx, Xxx You Xxx Xxxx,
Xxxxxx XxxXxxxx, Xxxxxxxxx 000000, Xxxxx
(Chinese Address "________________")
11. Assignment
Unless Party A's prior written consent is obtained, Party B shall not assign the
rights enjoyed to thereby and obligations undertaken thereby under this
Agreement to any third party.
12. Severability
In the event that any provisions of this Agreement are invalid or unenforceable
due to inconsistency with law, then such provisions shall only be invalid or
unenforceable to the extent of the jurisdiction of such law, and shall not
affect the legal validity of the remaining provisions of this Agreement.
13. Amendments and Supplements
Any amendments and supplements to this Agreement shall be in writing. The
amendment agreements and supplementary agreements that have been signed by the
parties and that relate to this Agreement shall be an integral part of this
Agreement and shall have the same legal validity as this Agreement.
14. Governing Laws
This Agreement shall be governed by laws of China and shall be construed in
accordance therewith.
IN WITNESS WHEREOF, the parties have caused their authorized representatives to
execute this Agreement as of the date first above written.
(Signature Page to Follow)
Party A: Guangzhou Dianxun Digital Network Technology Co., Ltd
(Chinese Company Name "________________")
By: /s/ Xx. Xxxxx, Ming
------------------------------------------
Name: Xx. Xxxxx, Ming
Title: Legal Representative and
General Manager
Party B: An affiliated Chinese entity of Party A:
GuangZhou DianXun Company Limited (Chinese Company Name "________________")
By: /s/ Xx. Xxxxx, Ming
------------------------------------------
Name: Xx. Xxxxx, Ming
Title: Legal Representative and
General Manager
ATTACHMENT 1: Table of Contents of Technical Consultations and Services
Including furnishing of training of personnel, network platforms appurtenant to
management and information services required for Party B's business, making
recommendations to Party B regarding the telecommunications value-added and
other forms of services accepted by the parties.
ATTACHMENT 2: The Calculation and Payment of the Technical Consulting and
Service Fee
For each Value-adder Service sold by Party B, Party B shall pay Party A 100% of
each income in technical consulting and service fee. Party B shall settle and
pay the aforementioned technical consulting and service fee by the 15th of each
month.
The aforementioned method of calculation may be adjusted quarterly by Party A
and Party B depending on the current actual circumstances.
SHARE PLEDGE AGREEMENT
This Share Pledge Agreement (hereinafter referred to as this "Agreement") has
been executed by and between the following parties on Dec 1, 2004 in Guangzhou.
Pledgee: Guangzhou Dianxun Digital Network Technology Co., Ltd (Chinese Company
Name "________________"), a company incorporated in Guangzhou, China whose
principal place of business is Xxxx 000, XxxxxXx Xxxxxxxx, Xx You Xxx Xxxx,
Xxxxxx XxxXxxxx, Xxxxxxxxx 000000, Xxxxx (Chinese Address "________________")
Pledgor: Xxxxx, Xxxx, Xxx, Xxxxxx, and Xxx, Xxxx residents of PRC, located at
Xx.0, Xx.0 Xxxxxx, Xxxxxx, Xxxxxxxx Estates, Panyu Borough, Guangzhou,
Guangdong, China ("________________"); at 901, Xx 0 Xxxx, Xx0 Xxxxxxxx, 000
XxxXxx Xxxx, XxxxxXxxx Xxxxxxx, Xxxxxx, Xxxxxxxxx, Xxxxx ("________________");
and at 000 XxxxxXx Xxxxxxxx, XxXxxxXxxXxxxx, SiYou South Road, Guangzhou,
Guangdong, China ("________________").
WHEREAS:
1. Pledgors are citizens of the People's Republic of China (hereinafter referred
to as "China"), and holds 100% of the shares in Guangzhou DianXun Technology
Co., Ltd. ("Guangzhou Dianxun"). Guangzhou Dianxun is a limited liability
company registered in Guangzhou, China.
2. Pledgee is a wholly foreign owned entity registered in Guangzhou, China, and
is engaged in the business of developing computer software and hardware
technologies and systems integration and information services (including online
travel information consulting services). Pledgee and Guangzhou Dianxun executed
a Consulting Services Agreement (hereinafter referred to as the "Service
Agreement") on Oct 10, 2004;
3. To ensure that Pledgee collects consulting and service fees regularly from
Guangzhou Dianxun partially owned by Pledgor, Pledgor hereby pledges all of the
shares in Guangzhou Dianxun held by him as security for the consulting and
service fees under the Service Agreement.
To perform the provisions of the Service Agreement, Pledgors and Pledgee have
mutually agreed to execute this Agreement upon the following terms.
1. Unless otherwise provided herein, the terms below shall have the following
meanings:
1.1 Pledge: shall refer to the entire content set forth in Article 2 of this
Agreement.
1.2 Shares: shall refer to all of the shares lawfully held by Pledgors in
Guangzhou Dianxun.
1.3 Pledge Ratio: shall refer to the ratio between value of the pledge under
this Agreement and the service fees payable by Guangzhou Dianxun to Pledgee.
1.4 Term of Pledge: shall refer to the term set forth in Section 3.2 of this
Agreement.
1.5 Service Agreement: shall refer to the Consulting Services Agreement executed
by and between Guangzhou Dianxun owned by Pledgors and Pledgee on October 10,
2004.
1.6 Event of Default: shall refer to any circumstances set forth in Article 7 of
this Agreement.
1.7 Notice of Default: shall refer to the notice issued by Pledgee in accordance
with this Agreement declaring an Event of Default.
2. THE PLEDGE
2.1 Pledgors hereby pledge to Pledgee all of his shares in Guangzhou Dianxun.
"Pledge" shall refer to the right of Pledgee to be compensated on a preferential
basis with the conversion, auction or sales price of the shares held by
Pledgors.
3. THE PLEDGE RATIO AND TERM OF PLEDGE
3.1 The Pledge Ratio
3.1.1 The Pledge Ratio of the Pledge shall be approximately 100%.
3.2 Term of Pledge
3.2.1 The Pledge in accordance with this Agreement shall take effect as of the
date of recording on the shareholders list of Guangzhou Dianxun, and the
effective term of the Pledge shall be the same as the effective term of the
Service Agreement. The parties agree to complete the filing procedures of the
Pledge with the industry and commerce administration government authorities with
which Guangzhou Dianxun was registered after this Agreement takes effect.
3.2.2 DURING THE TERM OF THE PLEDGE, IN THE EVENT THAT PLEDGORS FAIL TO PAY THE
EXCLUSIVE TECHNICAL CONSULTING SERVICE FEES IN ACCORDANCE WITH THE SERVICE
AGREEMENT, PLEDGEE SHALL HAVE THE RIGHT TO DISPOSE OF THE PLEDGE IN ACCORDANCE
WITH THE PROVISIONS OF THIS AGREEMENT.
4. CUSTODY OF RECORDS FOR SHARES SUBJECT TO PLEDGE
4.1 During the Term of Pledge set forth in this Agreement, Pledgors shall submit
to Pledgee's custody the capital contribution certificate for the Shares and the
shareholder's list within one week from the execution of this Agreement.
4.2 Pledgee shall have the right to collect dividends generated by the Shares.
5. REPRESENTATIONS AND WARRANTIES OF PLEDGORS
5.1 Pledgors are the lawful owners of the Shares.
5.2 Whenever Pledgee exercises its right with respect to the Pledge in
accordance with this Agreement, there shall not be any intervention from any
other parties.
5.3 Pledgee shall have the right to dispose of and transfer the Pledge in
accordance with the provisions set forth in this Agreement.
5.4 Except the Pledgee, the Pledgors have not placed any other pledge rights on
the Shares.
6. COVENANTS OF THE PLEDGORS
6.1 Pledgors hereby promise to the Pledge for the interest of the Pledgee, that
during the term of this Agreement, Pledgors shall:
6.1.1 Not transfer the Shares, place or permit the existence of any pledge that
may affect the Pledgee's rights and interests in the Shares, without the prior
written consent of Pledgee;
6.1.2 Comply with the provisions of all laws and regulations applicable to the
pledge of rights, and within 5 days of receipt of any notice, order or
recommendation issued or prepared by relevant competent authorities regarding
the Pledge, shall present the aforementioned notice, order or recommendation to
Pledgee, and shall comply with the aforementioned notice, order or
recommendation or submit objections and representations with respect to the
aforementioned matters upon Pledgee's reasonable request or upon consent of
Pledgee;
6.1.3 Promptly notify Pledgee of any event or notice received by Pledgee that
may have an impact on Pledgee's rights to the Shares or any portion thereof, as
well as promptly notify Pledgee of any event or notice received by Pledgee that
may have an impact on any guarantees and other obligations of Pledgor arising in
connection with this Agreement.
6.2 Pledgors agree that the rights acquired by Pledgee in accordance with this
Pledge Agreement with respect to Pledge shall not be interrupted or harmed by
Pledgors or any heirs or representatives of Pledgors or any other persons
through operation of law.
6.3 Pledgors hereby warrant to Pledgee that to protect or perfect the guarantee
provided by this Agreement for payment of the consulting service fees under the
Service Agreement, Pledgors hereby execute in good faith and shall cause other
parties who have a stake in the Pledge to execute all rights certificates,
agreements, deeds and/or covenants required by Pledgee and / or shall perform
and shall cause other parties who have a stake in the Pledge to perform actions
required by Pledgee, and facilitate the exercise by Pledgee of its rights and
authority granted thereto by this Agreement, execute all relevant documents that
modify stock certificates with Pledgee or designee(s) of Pledgee (natural
persons / legal persons), and shall provide to Pledgee within a reasonable time
all notices, orders and decisions regarding the Pledge that are required by
Pledgee.
6.4 Pledgors hereby warrant to Pledgee that for Pledgee's interest, Pledgors
shall comply with representations and conditions under this Agreement. In the
event of failure or partial performance of its guarantees, promises, agreements,
representations and conditions, Pledgors shall indemnify Pledgee for all of its
losses resulting therefrom.
7. EVENT OF DEFAULT
7.1 The following circumstances shall be deemed Events of Default:
7.1.1 Guangzhou Dianxun fails to pay in full the exclusive technical service
fees payable under the Service Agreement;
7.1.2 Any representation or warranty by Pledgors in Article 5 of this Agreement
contains material misrepresentations or errors, and/or Pledgors violate any of
the warranties in Article 5 of this Agreement;
7.1.3 Pledgors breach any of the covenants in Article 6 of this Agreement;
7.1.4 Pledgors breach any provisions of this Agreement;
7.1.5 Pledgors give up the Shares pledged or assign the Shares pledged without
the written consent of Pledgee;
7.1.6 Any of Pledgors' own loans, guarantees, indemnification, promises or other
debt liabilities to any third party or parties (1) have been subject to a demand
of early repayment or performance; or (2) have become due but are not capable of
being repaid or performed in a timely manner, thus leading Pledgee to believe
that Pledgors' ability to perform its obligations under this Agreement has been
affected;
7.1.7 Pledgors are unable to repay general debts and other debts;
7.1.8 The promulgation of applicable laws have rendered this Agreement illegal
or have rendered it impossible for Pledgors to continue to perform its
obligations under this Agreement;
7.1.9 All approvals, licenses, permits or authorizations of government agencies
that make this Agreement enforceable, legal and effective have been withdrawn,
terminated, invalidated or substantively changed;
7.1.10 Adverse changes in properties owned by Pledgors, which lead Pledgee to
believe that that Pledgors' ability to perform its obligations under this
Agreement has been affected;
7.1.11 The successor or custodian of Guangzhou Dianxun is capable of only
partially perform or refuses to perform the payment obligations under the
Service Agreement;
7.1.12 Breach of this Agreement resulting from breach of other provisions of
this Agreement by Pledgors' action or omission; and
7.1.13 Other circumstances where Pledgee is unable to exercise its right with
respect to the Pledge.
7.2 Upon information or discovery of the occurrence of any circumstances or
event that may lead to the aforementioned circumstances described in Section
7.1, Pledgors shall immediately notify Pledgee in writing. Unless an Event of
Default set forth in this Section 7.1 has been successfully resolved to
Pledgee's satisfaction, Pledgee may issue a Notice of Default to Pledgors in
writing upon the occurrence of the Event of Default or at any time thereafter
and demand that Pledgors immediately pay all outstanding payments due under the
Service Agreement and all other payments due to Pledgee, or dispose of the
Pledge in accordance with the provisions of Article 8 of this Agreement.
8. EXERCISE OF PLEDGE
8.1 Prior to the full payment of the consulting service fee described in the
Service Agreement, without the Pledgee's written consent, Pledgors shall not
assign the Pledge.
8.2 Pledgee shall issue a Notice of Default to Pledgors when exercising the
Pledge.
8.3 Subject to the provisions of Section 7.3, Pledgee may exercise the right to
dispose of the Pledge concurrently with the issuance of the Notice of Default in
accordance with Section 7.2 or at any time after the issuance of the Notice of
Default.
8.4 Pledgee shall have the right to be compensated with the conversion price of
the Shares under this Agreement in part or in whole, in accordance with legally
mandated procedures, or with the auction or sale price of such Shares on a
preferential basis, until all outstanding consulting service fees and all other
outstanding payments under the Service Agreement have been paid off.
8.5 When Pledgee disposes of the Pledge in accordance with this Agreement,
Pledgors shall not erect any impediment, and shall provide necessary assistance
to enable Pledgee to realize its Pledge.
9. ASSIGNMENT
9.1 Unless Pledgee consents in advance, Pledgors shall not have the right to
assign or delegate its rights and obligations under this Agreement.
9.2 This Agreement shall be binding on Pledgors and the successors thereof, and
shall be valid with respect to Pledgee and each of the successors and assigns
thereof.
9.3 At any time, Pledgee may assign any and all of its rights and obligations
under the Service Agreement to its designee(s) (natural / legal persons), in
which case the assigns shall have the rights and obligations of Pledgee under
this Agreement, as if it were a party to this Agreement. When the Pledgee
assigns the rights and obligations under the Service Agreement, upon Pledgee's
request, Pledgors shall execute relevant agreements and / or documents relating
to such an assignment.
9.4 In the event of a change in Pledgee due to an assignment, the new parties to
the Pledge shall execute a new pledge agreement.
10. TERMINATION
10.1Upon the payoff of the consulting service fees under the Service Agreement
and Pledgors no longer undertakes any obligations under the Service Agreement,
this Pledge Agreement shall be terminated, and Pledgors shall then cancel or
terminate this Agreement as soon as reasonably practicable.
11. HANDLING FEES AND OTHER EXPENSES
11.1 All fees and out of pocket expenses relating to this Agreement, including
but not limited legal costs, cost of production, stamp tax and any other taxes
and fees shall be borne by Pledgors. In the event that the law requires Pledgee
to pay relevant taxes, Pledgors shall provide full reimbursement for all taxes
already paid by Pledgee.
11.2 IN THE EVENT THAT PLEDGORS FAIL TO PAY ANY TAXES AND FEES IN ACCORDANCE
WITH THE PROVISIONS OF THIS AGREEMENT OR IN THE EVENT THAT DUE TO OTHER REASONS,
PLEDGEE ATTEMPTS TO RECOVER TAXES AND FEES PAYABLE BY PLEDGORS THROUGH ANY
MEANS, ALL EXPENSES (INCLUDING BUT NOT LIMITED TO VARIOUS TAXES, HANDLING FEES,
MANAGEMENT FEES, COST OF LITIGATION, ATTORNEY'S FEES AND VARIOUS INSURANCE
PREMIUMS, ETC.) RESULTING THEREFROM SHALL BE BORNE BY PLEDGORS.
12. FORCE MAJEURE
12.1 "Force majeure" shall refer to any event beyond the reasonable control of
either party and that still cannot be avoided even if the party affected has
exercised reasonable care, including but not limited government actions, acts of
God, fire, explosions, storms, flood, earthquakes, tides, lightning or war. But
a lack of credit, funds or financing shall not be deemed a circumstances beyond
the reasonable control of either party. The party affected by a "force majeure
event" shall notify the other party of such relief from liability as soon as
possible.
12.2 In the event that the performance of this Agreement is delayed or impeded
by the aforementioned "force majeure," the party affected by such force majeure
shall not be liable in any way under this Agreement to the extent of such delay
or impedance. The party affected shall take appropriate measures to mitigate or
eliminate the impact of such "force majeure" and shall attempt to resume the
performance of obligations delayed or impeded by such "force majeure." As soon
as the force majeure event is eliminated, the parties agree to use their best
efforts to resume the performance of this Agreement.
13. RESOLUTION OF DISPUTES
13.1This Agreement shall be governed by laws of China and shall be construed in
accordance therewith.
13.2 In the event of any dispute with respect to the construction and
performance of the provisions of this Agreement, the parties shall negotiate in
good faith to resolve same. Upon failure of such negotiations, any party may
submit the relevant disputes to the China International Economics and Foreign
Trade Arbitration Commission for resolution by arbitration, in accordance with
its current arbitration rules., and the language used during arbitration shall
be Chinese. The arbitration ruling shall be final and binding on both parties.
14. NOTICES
14.1 Notices sent by the parties to perform the rights and obligations under
this Agreement shall be in writing. If sent by personal delivery, such a notice
shall be deemed served upon actual delivery; if sent by telex or facsimile, such
a notice shall be deemed served at the time of transmission. If the date of
transmission is not a business day or if transmission is after hours, then the
next consecutive business day shall be the date of service. The address of
service shall be the addresses of the two parties on the first page of this
Agreement or addresses notified in writing at any time subsequently. In writing
shall include facsimiles and telexes.
15. ATTACHMENTS
The attachments set forth in this Agreement shall be an integral part hereof.
16. EFFECTIVENESS
Any amendments, changes and supplements to this Agreement shall be in writing
and shall take effect upon affixation of the signatures and seals of the
parties.
16.2 This Agreement is written in English in triplicate copies.
(Signature Page to Follow)
Pledgee: Guangzhou Dianxun Digital Network Technology Co., Ltd
Authorized representative: ___________
Pledgor: Xxxxx, Xxxx
Xx.0, Xx.0 Xxxxxx, Xxxxxx, Xxxxxxxx Estates, Panyu Borough, Guangzhou,
Guangdong, China ("________________")
Signed: /s/ Zhang, Xxxx
Xxx, Jinnan
901, No 3 Door, No3 Building, 388 JinNin Road, XiangZhou Borough, Zhuhai,
Guangdong, China ("________________")
Signed: /s/ Lai, Jinnan
Xxx, Xxxx
803 GuangRi Building, XxXxxxXxxXxxxx, XxXxx Xxxxx Xxxx, Xxxxxxxxx, Xxxxxxxxx,
Xxxxx ("________________")
Signed: /s/ Xxx, Xxxx
POWER OF ATTORNEY
I, Xxxxx, Xxxx OAA/ ("WenChu"), a Chinese citizen with Chinese PASSPORT #
X00000000, hereby irrevocably authorize Xx. Xxxxxx Xxxx to exercise the
following rights during the term of this Power of Attorney:
Xx. Xxxxxx Xxxx is hereby authorized to exercise on my behalf at shareholders
meetings of Guangzhou DianXun Technology Co., Ltd. (the "Company"), 51% of all
the shareholder's voting rights I am entitled to under Chinese laws and the
Company's bylaws, including but not limited to the sale or transfer of the
shares I hold in the Company in part or in whole, and designate and appoint on
my behalf at the shareholders meetings of the Company, the chief executive
officer of the Company.
The aforementioned authorization shall be subject to Xx. Xxxxxx Xxxx being an
employee of PacificNet Inc ("PacificNet"). As soon as Xx. Xxxxxx Xxxx no longer
holds any position with PacificNet, I shall withdraw the authorization granted
thereto herein, and shall designate / authorize another employee of PacificNet
to exercise all of my shareholders voting rights at shareholders meetings of the
Company.
During the valid existence of the Company, unless the Operating Agreement
jointly executed by and between PacificNet and the Company is terminated early
due to any reason, the term of this Power of Attorney shall be 5 years from the
date of execution of this Power of Attorney.
/s/ Zhang, Xxxx
Xxxxx, Ming
("WenChu")
DECEMBER 1, 2004
POWER OF ATTORNEY
I, Lai, Jinnan Au1/2oAI ("Marco"), a Chinese citizen with Chinese PASSPORT #
X00000000, hereby irrevocably authorize Xx. Xxxxxx Xxxx to exercise the
following rights during the term of this Power of Attorney:
Xx. Xxxxxx Xxxx is hereby authorized to exercise on my behalf at shareholders
meetings of Guangzhou DianXun Technology Co., Ltd. (the "Company"), 51% of all
the shareholder's voting rights I am entitled to under Chinese laws and the
Company's bylaws, including but not limited to the sale or transfer of the
shares I hold in the Company in part or in whole, and designate and appoint on
my behalf at the shareholders meetings of the Company, the chief executive
officer of the Company.
The aforementioned authorization shall be subject to Xx. Xxxxxx Xxxx being an
employee of PacificNet Inc ("PacificNet"). As soon as Xx. Xxxxxx Xxxx no longer
holds any position with PacificNet, I shall withdraw the authorization granted
thereto herein, and shall designate / authorize another employee of PacificNet
to exercise all of my shareholders voting rights at shareholders meetings of the
Company.
During the valid existence of the Company, unless the Operating Agreement
jointly executed by and between PacificNet and the Company is terminated early
due to any reason, the term of this Power of Attorney shall be 5 years from the
date of execution of this Power of Attorney.
/s/ Lai, Xxxxxx
Xxx, Jinnan
("Marco")
DECEMBER 1, 2004
POWER OF ATTORNEY
I, Xxx Xxxx ("_____"), a Chinese citizen with Chinese ID number:
000000000000000000, hereby irrevocably authorize Xx. Xxxxxx Xxxx to exercise the
following rights during the term of this Power of Attorney:
Xx. Xxxxxx Xxxx is hereby authorized to exercise on my behalf at shareholders
meetings of Guangzhou DianXun Technology Co., Ltd. (the "Company"), 51% of all
the shareholder's voting rights I am entitled to under Chinese laws and the
Company's bylaws, including but not limited to the sale or transfer of the
shares I hold in the Company in part or in whole, and designate and appoint on
my behalf at the shareholders meetings of the Company, the chief executive
officer of the Company.
The aforementioned authorization shall be subject to Xx. Xxxxxx Xxxx being an
employee of PacificNet Inc ("PacificNet"). As soon as Xx. Xxxxxx Xxxx no longer
holds any position with PacificNet, I shall withdraw the authorization granted
thereto herein, and shall designate / authorize another employee of PacificNet
to exercise all of my shareholders voting rights at shareholders meetings of the
Company.
During the valid existence of the Company, unless the Operating Agreement
jointly executed by and between PacificNet and the Company is terminated early
due to any reason, the term of this Power of Attorney shall be 5 years from the
date of execution of this Power of Attorney.
/s/ Xxx Xxxx
Xxx Xxxx
("______")
DECEMBER 1, 2004
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