EXHIBIT 2.8
ACCESSION TO COMPANY LOCK-UP AGREEMENT
Accession to Company Lock-up Agreement, dated as of August 30, 2004 (the
"Accession Agreement"), to the Company Lock-up Agreement, dated as of January
30, 2004 and attached to this Accession Agreement (the "Company Lock-up
Agreement"), by and among Linktone Ltd., a Cayman Islands company (the
"Company"), and Asiainfo (Indigo) Holdings Ltd, Fidelity Investors III Limited
Partnership, Hiking Corporation Ltd, Icon Ventures Asia Ltd, Xxxxxx Xxxxxxxx,
Xxxx Xxxxxx, Hu An Kai, Greenacre Ventures Ltd., Fidelity International Limited,
and FIL Ventures Limited (each the "Party" and taken together, the "Parties").
Each Party, in consideration of and as a condition to receiving a
distribution of ordinary shares of the Company from Intrinsic Technology
(Holdings) Ltd. ("Intrinsic Technology"), and in accordance with the resolutions
of the shareholders of Intrinsic Technology at an extraordinary general meeting
held on July 2, 2004, hereby:
(a) confirms and agrees to be a party to and to be bound by the Company
Lock-up Agreement as the same may be amended in accordance with its
terms from time to time as a "Founder and 10% Shareholder" (as such
term is defined in the Company Lock-up Agreement), with effect from
the Party's first receipt of a distribution of ordinary shares of
the Company from Intrinsic Technology, and
(b) acknowledges and agrees with the Company that the references to
"2,500,000" in Section 1(b) of the Company Lock-up Agreement are
hereby revised to "THE NUMBER OF ORDINARY SHARES OF THE COMPANY HELD
BY THE PARTY PRIOR TO MARCH 1, 2004 PLUS 10% OF THE TOTAL NUMBER OF
ORDINARY SHARES WHICH THE PARTY IS ENTITLED TO RECEIVE FROM
INTRINSIC TECHNOLOGY IN CONNECTION WITH ITS LIQUIDATION."
In addition, each Party hereby represents and warrants to the Company the
following:
(1) This Accession Agreement has been duly executed and delivered by such
Party, and constitutes a legal, valid and binding obligation of such Party,
enforceable against such Party in accordance with its respective terms, except
as enforcement thereof (whether in proceedings at law or in equity) may be
limited by bankruptcy and insolvency laws and by other laws affecting the rights
of creditors generally; and
(2) None of the execution and delivery by such Party of this Accession
Agreement, the performance of its obligations hereunder and under the Company
Lock-up Agreement, and the compliance by such Party with the terms and
provisions hereof and thereof results in or constitutes or will result in or
constitute (with or without due notice or lapse of time or both): (i) a
violation of any statute, rule, regulation, order, writ, judgment, injunction,
determination, award or decree of any court, public body or authority or any
other contractual or other provision or restriction of any kind or character
by which such Party or any of its properties or assets may be bound or to which
they may be subject; or (ii) an event requiring such Party to give notice,
complete any registration, deregistration, filing or application or seek any
consent, approval, authorization, order license, qualification, permit or
waiver.
This Accession Agreement shall be governed and construed in all respects
by the laws of the State of New York without reference to conflicts of laws
principles thereof.
IN WITNESS WHEREOF, the Parties have executed this Accession Agreement as
of the day and year first above written.
Asiainfo (Indigo) Holdings Ltd,
Fidelity Investors III Limited Partnership,
Hiking Corporation Ltd,
Icon Ventures Asia Ltd,
Xxxxxx Xxxxxxxx,
Xxxx Xxxxxx,
Hu An Kai,
Greenacre Ventures Ltd.,
Fidelity International Limited, and
FIL Ventures Limited
By: ________________________________
Name:
Title:
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