Exhibit 10.85
Beijing Enterprise Network Technology Ltd.
CONTRACT RELATING TO EXCLUSIVE PURCHASE RIGHT OF EQUITY INTEREST
Dated as of August 15, 2004
CONTRACT RELATING TO
THE EXCLUSIVE PURCHASE RIGHT OF AN EQUITY INTEREST
The Contract Relating to the Exclusive Purchase Right of An Equity Interest,
dated as of August 15, 2004 (this "Contract"), is made in Beijing by and among:
(1) Hurray! Holding Co., Ltd., a limited company incorporated in Cayman
Islands, with the address at Century Yard, Cricket Square, Xxxxxxxx
Drive, P.O. Box 2681GT, Xxxxxx Town, Grand Cayman, British West Indies
(the "Party A");
(2) Xxxx Xxxxxxxx, Citizen of the People's Republic of China (the "PRC"),
holding the Identification Card of the PRC (No. 440112611107062), with
the address at Xxxx 0, Xx. 00 Dayuan, 470 Xingangzhoulu, Guangzhou
(the "Party B"); and
(3) Beijing Enterprise Network Technology Co., Ltd., a limited liability
company organized and existing under the laws of the PRC, with the
registered address at Xxxx 000, Xxxxxxxx Xxxxxxxx, Xx.0 Xxxxxxx Xx.0
Street, Haidian District, Beijing (the "Party C").
As used in this Contract, Party A, Party B, and Party C is "the Party"
respectively, and "Parties to the Contract" in all.
WHEREAS,
1. Party B has the ownership of 50% equity interest in Party C.
2. Party C and Hurray! Times Communications (Beijing) Ltd., a 100% owned
subsidiary company of Party A within PRC, entered into a series of
contracts such as Exclusive Technical Consulting and Services
Agreement.
NOW, THEREFORE, the parties to this Contract hereby agree as follows:
1. Purchase and Sale of Equity Interest
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Section 1.1 Authorization
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Party B hereby irrevocably grants to Party A, under the laws of the PRC, an
irrevocable exclusive right ("Purchase Right of Equity Interest") for Party A or
one or more persons designated by Party A (the "Designated Persons") to purchase
(in accordance with steps decided by Party A and at the price specified in
Section 1.3 hereof) at any time from Party B all or part of Party B's equity
interest in Party C. Except for Party A and the Designated Persons, Party B
shall not grant such right to any other party. Party C hereby
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agrees to the delivery of Purchase Right of Equity Interest from Party B to
Party A. As specified in this Section and this Contract, "person" has the
meaning of Person, Corporation, Joint Venture, Partnership, Enterprise, Trust or
Non-Corporation Organization.
Section 1.2 Steps
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The performance of Purchase Right of Equity Interest of Party A shall be
upon and subject to the laws and regulations of PRC. Party A shall send a
written notice (the "Notice of Purchase of Equity Interest") to Party B upon its
performance of Purchase Right of Equity Interest, the Notice of Purchase of
Equity Interest shall have in it the following contents:
(a) Party A's decision of the performance of purchase right;
(b) The Equity Interest to be purchased by Party A from Party B (the
"Purchased Equity Interest");
(c) Purchase Date/Equity Interest Transfer Date.
Section 1.3 Purchase Price
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Except as requested by law to evaluate, the price of the Purchased Equity
Interest ("Purchase Price") shall be an equivalent of the actual amount of the
Purchased Equity Interest contributed by Party B.
The Purchase Price is subject to applicable laws and regulations of PRC.
Section 1.4 Transfer of the Purchased Equity Interest
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Every time upon Party A's performance of the Purchase Right of Equity Interest:
(a) Party B shall urge Party C to convene the shareholders meeting, and during
the meeting, to pass the resolution to transfer the equity interest from
Party B to Party A and/or the Designated Persons;
(b) Party B shall, upon the terms and conditions of this Contract and the
Notice of Purchase of Equity Interest, enter into Equity Interest Transfer
Contract with Party A (or the Designated Persons, as the case may be);
(c) The related parties shall execute all other requisite contracts, agreements
or documents, acquire all requisite approval and consent of the government,
and, without any security interest, perform all requisite action to
transfer the valid ownership of the Purchased Equity Interest to Party A
and/or the Designated Person, and to cause Party A and/or the Designated
Person to be the registered owner of the Purchased Equity Interest. For
this Section and this Contract, "Security Interest" has
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the meaning of security, mortgage, right or interest of the third party,
any purchase right of equity interest, right of acquisition, right of first
refusal, right of set-off, ownership detainment or other security
arrangements. To further define the meaning, it does not include any
security interest subject to this Contract or the equity interest pledge
contract of Party B. As described in this Section and this Contract, "the
Equity Interest Pledge Contract of Party B" has the meaning of the Equity
Interest Pledge Contract entered into by Hurray! Times Communications
(Beijing) Ltd. and Party B dated as of the execution date of this Contract.
According to the said Contract, to secure Party C to perform the
obligations subject to the Exclusive Technology Consulting and Service
Agreement entered into between Party C and Hurray! Times Communications
(Beijing) Ltd., Party B pledges all its equity interest in Party C to
Hurray! Times Communications (Beijing) Ltd.
Section 1.5 Payment
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Upon the performance of the Purchase Right of Equity Interest by Party A, the
Purchase Price shall be determined in compliance with the PRC laws and
regulation then in effect.
2. Promises Relating to Equity Interest
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Section 2.1 Undertaking of Party C
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Party C hereby undertakes:
(1) Without prior written consent by Party A or Hurray! Times Communications
(Beijing) Ltd., Party A's Affiliate in PRC, not, in any form, to
complement, change or renew the Articles of the Association of Party C, to
increase or decrease its registered capital, or to change the structure of
the registered capital in any other forms;
(2) Pursuant to good financial and business standard and practice, to maintain
the existence of the corporation, prudently and effectively operate
business and process affairs;
(3) Without prior written consent by Party A or Hurray! Times Communications
(Beijing) Ltd., Party A's Affiliate in PRC, not, from the execution date of
this Contract, to sell, transfer, mortgage or otherwise dispose of any
legitimate or beneficial interest of the assets, business or income of
Party C, or to approve any other security interest set on it;
(4) Without prior written notice by Party A or Hurray! Times Communications
(Beijing) Ltd., Party A's Affiliate in PRC, no debt shall take place, be
inherited, be guaranteed, or be allowed to exist, with the exception of:
(i) debt from normal or daily business but not from borrowing; (ii) debt
having been disclosed to Party A or having gained
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written consent from Party A;
(5) To carry out all operations in the ordinary course of business to maintain
the asset value of Party C, without taking any action/having omission which
would sufficiently have an adverse impact on the operation and asset value;
(6) Without prior written consent by Party A or Hurray! Times Communications
(Beijing) Ltd., Party A's Affiliate in PRC, not to enter into any material
contract, with the exception of the contract entered into in the ordinary
course of business (As in this paragraph, a contract with a value more than
RMB One Million (RMB1,000,000) shall be deemed as a material contract);
(7) Without prior written consent by Party A or Hurray! Times Communications
(Beijing) Ltd., Party A's Affiliate in PRC, not to provide loan or credit
loan to anyone;
(8) Upon the request of Party A, to provide all operation and financial
materials relevant to Party C;
(9) Party C purchases and holds all insurance from the insurance company
accepted by Party A, the insurance amount and category shall be the same
with those held by the companies in the same area, operating the similar
business and owning the similar properties and assets;
(10) Without prior written consent by Party A or Hurray! Times Communications
(Beijing) Ltd., Party A's Affiliate in PRC, not to merge or associate with
any person, or purchase any Person or invest in any Person;
(11) To immediately notify Party A of the occurrence or the possible occurrence
of litigation, arbitration or administrative procedure related to the
assets, business and income of Party C;
(12) In order to keep the ownership of Party C to all its assets, to execute all
requisite or appropriate documents, do all requisite or appropriate action,
and advance all requisite or appropriate accusation, or make requisite or
appropriate defense for all claims;
(13) Without prior written notice by Party A, not to pay dividends to
shareholders in any form, but upon the request of Party A, to distribute
all or part of its distributable profits to their own shareholders; and
(14) Upon the request of Hurray! Times Communications (Beijing) Ltd., Party A's
Affiliate in PRC, to appoint any person designated by Hurray! Times
Communications (Beijing) Ltd. to join the Board of Directors of Party C.
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Section 2.2 Undertaking of Party B
----------------------
Party B undertakes:
(1) Without prior written consent by Party A or Hurray! Times Communications
(Beijing) Ltd., Party A's Affiliate in PRC, not, from the execution date of
this Contract, to sell, transfer, mortgage or otherwise dispose of any
legitimate or beneficial interest of equity interest, or to approve any
other security interest set on it, with the exception of the pledge set on
the equity interest of Party B subject to Equity Interest Pledge Contract
of Party B;
(2) To cause the authorized representative(s) appointed by it not to approve at
the Shareholders' meeting without prior written notice by Party A or
Hurray! Times Communications (Beijing) Ltd., Party A's Affiliate in PRC,
the sale, transfer, mortgage or otherwise disposal of any legitimate or
beneficial interest of equity interest, or to approve any other security
interest set on it, with the exception of the pledge set on the equity
interest of Party B subject to Equity Interest Pledge Contract of Party B;
(3) To cause the authorized representative(s) appointed by it not to approve at
the Shareholders' meeting, without prior written notice by Party A or
Hurray! Times Communications (Beijing) Ltd., Party A's Affiliate in PRC,
the merge or association with any person by Party C, or its purchase of or
investment in any person;
(4) To immediately notify Party A of the occurrence or the possible occurrence
of litigation, arbitration or administrative procedure related to the
equity interest owned by it;
(5) To cause the authorized representative(s) appointed by it to vote for the
transfer of the Purchased Equity Interest subject to this Contract at the
shareholders' meeting;
(6) In order to keep its ownership of the equity interest, to execute all
requisite or appropriate documents, do all requisite or appropriate action,
and advance all requisite or appropriate accusation, or make requisite or
appropriate defense for all claims;
(7) Upon the request of Hurray! Times Communications (Beijing) Ltd., Party A's
Affiliate in PRC, to appoint any person designated by Hurray! Times
Communications (Beijing) Ltd. to join the Board of Directors of Party C;
(8) Upon the request of Party A at any time, to immediately transfer its equity
interest to the representative designated by Party A unconditionally and at
any time, and waive its right of first refusal over such equity interest
being transferred to other existing shareholder; and
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(9) To prudently comply with the terms and conditions of this Contract and
other contracts entered into jointly or severally by Party B, Party C and
Party A and Hurray! Times Communications (Beijing) Ltd., to actually
perform all obligations under these contracts, without taking any action or
having omission which would sufficiently affect the validity and
enforceability of these contracts.
3. Representations and Warranties
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Representations and Warranties of Party B and Party C
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Party B and Party C hereby jointly & severally represent and warrant to
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Party A as of the execution date of this Contract and each of the transfer date,
as follows:
(1) It has the power and ability to enter into and deliver this Contract, and
any equity interest transfer contract ("Transfer Contract",) having it as a
party, for every single transfer of the purchased equity interest according
to this Contract, and to perform its obligations under this Contract and
any Transfer Contract. Upon execution, this Contract and the Transfer
Contracts having it as a party shall constitute a legal, valid and binding
obligation of it and shall be enforceable against it in accordance with its
terms;
(2) The execution, delivery of this Contract and any Transfer Contract and
performance of its obligations under this Contract and any Transfer
Contract shall not: (i) result in violation of any relevant laws of PRC;
(ii) constitute a conflict with Articles of Association or other
organizational documents; (iii) cause to breach any contract or instruments
to which it is a party or having binding obligation on it, or constitute a
breach under any contract or instruments to which it is a party or having
binding obligation on it; (iv) cause to violate relevant authorization of
any consent or approval to it and/or any continuing valid condition; or (v)
cause any consent or approval authorized to it to be suspended, removed, or
into which other requests be added;
(3) Party B bears the good title to and marketable ownership of its equity
interest in Party C. Party B does not set any security interest on the said
equity interest, with the exception of the pledge of equity interests
agreed by Party A and Hurray! Times Communications (Beijing) Ltd., Party
A's Affiliate in PRC;
(4) Party C does not have any outstanding debt, with the exception of (i) debt
from its normal business; and (ii) debt having been disclosed to Party A
and having gained written consent from Party A;
(5) Party C abides by all laws and regulations applicable to the purchase of
assets; and
(6) There is litigation, arbitration or administrative procedure in respect of
equity interest, assets of Party C or the corporation to be ongoing or
pending or likely to take place.
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4. Effective Date
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This Contract shall become effective once it is signed, with a term of 10
years, and can be extended for 10 years at the discretion of Party A.
5. Applicable Law and Dispute Resolution
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Section 5.1 Applicable Law
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The execution, validity, interpretation and performance of this Contract, and
resolution of the disputes under this Contract, shall be governed by the laws of
PRC.
Section 5.2 Dispute Resolution
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Any dispute arising from the interpretation and performance of this Contract
shall be settled through friendly consultation between the parties to this
Contract. If no settlement can be reached through such consultation within
thirty (30) days after the written notice is sent by one party to the other
requesting to settle the dispute, then either party shall have the right to
refer the matter to China International Economic and Trade Arbitration
Commission, for arbitration according to the its arbitration rules then in
effect. The arbitration shall take place in Beijing. The arbitration award is
final, and is binding upon the parties hereto.
6. Taxes and Expenses
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Each party shall, according to laws of PRC, bear any and all taxes of the
transfer and registration, costs and expenses for the preparation and execution
of this Contract and all Transfer Contracts, and those incurred by or imposed on
it for completion of the transactions contemplated under this Contract and all
Transfer Contracts.
7. Notices
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This Contract requires that notices or other communications sent by any party or
corporation shall be written in Chinese, and be delivered in person, by mail or
fax to other parties at the following addresses or other specified addresses
informed by other parties to the party. The date deemed to be duly given or made
shall be confirmed as follows: (a) for notices delivered in person, the date of
delivery shall be deemed as having been duly given or made; (b) for notices
delivered by mail, the tenth day of the delivery date of air registered mail
with postage prepaid (as shown on stamp), or the fourth day of the delivery to
an express service company accepted internationally shall be deemed as having
been duly given or made; and (c) for notices by fax, the receipt date shown on
the delivery confirmation of the relevant document shall be deemed as having
been duly given or made.
Party A: Hurray! Holding Co., Ltd.
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Address: Century Yard, Cricket Square, Xxxxxxxx Drive, P.O. Box 2681GT, Xxxxxx
Town, Grand Cayman, British West Indies
Party B: Xxxx Xxxxxxxx
Address: Xxxx 0, Xx. 00 Xxxxxx, 000 Xxxxxxxxxxxxxx, Guangzhou
Party C: Beijing Enterprise Network Technology Co., Ltd.
Address: Xxxx 000, Xxxxxxxx Xxxxxxxx, Xx.0 Xxxxxxx Xx.0 Xxxxxx, Xxxxxxx
Xxxxxxxx, Xxxxxxx
0. Confidentiality
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Both the parties acknowledge and confirm that any oral or written materials
exchanged by the parties relating to this Contract are confidential. Both
parties shall keep all such materials in strict confidence. Without written
approval by the other party, the party shall not disclose to any third party any
relevant materials, but with the exception of the following: (a) the public know
or may know such materials (but not disclosed by the party accepting the
materials without authorization); (b) materials needed to be disclosed subject
to applicable laws; or (c) any party necessarily discloses materials to its
legal or financial consultant relating the transaction of this Contract, and
this legal or financial consultant shall have the obligation of confidentiality
similar to that set forth in this Section. The breach of the obligation of
confidentiality by staff or institution employed by any party shall be deemed as
the breach of such obligation by that party, and by whom the liabilities for
breach shall be borne. No matter this Contract may terminate by any reason, this
Section shall continue in force and effect.
9. Further Warranties
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The Parties to the Contract agree to promptly execute documents reasonably
requisite to the performance of the provisions and the aim of this Contract or
documents beneficial to it, and to take actions reasonably requisite to the
performance of the provisions and the aim of this Contract or actions beneficial
to it.
10. Miscellaneous
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Section 10.1 Amendment, Modification and Supplement
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Amendment, modification and supplement of this Contract shall be subject to the
written agreement executed by each party.
Section 10.2 Observance of Laws and Regulations
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The parties to the contract shall observe and ensure the operation of each party
to be fully complied with all laws and regulations of PRC officially published
and publicly available.
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Section 10.3 Entire Contract
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Except for a written amendment, supplement and modification of this Contract
following the date of execution, this contract constitutes the entire contract
of the parties hereto with respect to the subject matter hereof and supersedes
all prior oral or written agreements, representation and contracts with respect
to the subject matter hereof.
Section 10.4 Headings
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The headings contained in this Contract are for convenience of reference only
and shall not affect the interpretation, explanation or in any other way the
meaning of the provisions of this Contract.
Section 10.5 Language
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This Agreement is executed in Chinese in three copies.
Section 10.6 Severability
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If any one or more provisions of this Contract are judged as invalid, illegal or
non-enforceable in any way according to any laws or regulations, the validity,
legality and enforceability of other provisions hereof shall not be affected or
impaired in any way. All parties shall, through sincere consultation, seek to
replace those invalid, illegal or non-enforceable provisions with valid ones,
and the economic effects brought by the valid provisions shall be similar to
those effects brought by those invalid, illegal or non-enforceable provisions as
much as possible.
Section 10.7 Successor
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This Contract shall be binding upon and beneficial to the successor of each
party and the transferee allowed by each party.
Section 10.8 Survival
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(a) Any obligation arising at termination or early termination hereof or
any obligation which has been due shall continue in force and effect after
the termination or early termination of the Contract.
(b) Section 5, Section 8 and Section 10.8 hereof shall continue in force and
effect after the termination of this Contract.
Section 10.9 Waiver
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Any party to this Contract may waive the terms and conditions of this Contract.
Such waiver shall be valid only if set forth in an instrument in writing signed
by the party or parties to be bound thereby. Any waiver by a party to the breach
hereof by other parties in certain situation shall not be construed as a waiver
to any similar breach by other parties in other situation.
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IN WITNESS THEREFORE, the parties hereof have caused the Contract Relating to
the Exclusive Purchase Right of An Equity Interest to be executed by their duly
authorized representatives as of the date first written above.
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Party A: Hurray! Holding Co., Ltd. (Seal affixed)
By: /s/ Signed
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Name:
Title:
Party B: Xxxx Xxxxxxxx
By: /s/ Signed
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Name:
Party C: Beijing Enterprise Network Technology Co., Ltd. (Seal affixed)
By: /s/ Signed
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Name:
Title:
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