AMENDED AND RESTATED SHARE PLEDGE AGREEMENT
Exhibit
4.14
AMENDED
AND RESTATED SHARE PLEDGE AGREEMENT
THIS
AMENDED AND RESTATED SHARE PLEDGE AGREEMENT
(this
"Agreement") is entered into by and among the following parties (the “parties”)
in Beijing, People’s Republic of China (“PRC”) on October 16, 2006:
PLEDGEE:
Kongzhong
Information Technologies (Beijing) Co., Ltd.
[Chinese
Characters], with its registered address at 35 F, Tengda Plaza, No.168 Xiwai
Street, Haidian District, Beijing, PRC
And
PLEDGOR:
Xxxxxx
Xxxx, Xxxxxxx Xxxx, Xxxx Xxxxx, Linguang Wu
WHEREAS,
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1.
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The
Pledgor, Xxxxxx Xxxx, Xxxxxxx Xxxx, Xxxx Xxxxx and Linguang Wu,
are
citizens of the People's Republic of China ("PRC", excluding Hong
Kong
Special Administration District, Macao Special Administration District
and
Taiwan area, for the purpose of this "Agreement"), and respectively
owns
10%, 42%, 3% and 45% equity interest in Beijing AirInBox Information
Technologies Co., Ltd.
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2.
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Beijing
AirInBox Information Technologies Co., Ltd. is a limited liability
company
registered in Beijing engaging in the business of Internet information
provision services, value-added telecommunication services,
etc.
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3.
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The
Pledgee, a wholly foreign-owned company registered in Beijing, PRC,
has
been licensed by the PRC relevant government authority to carry on
the
business of computer software products, internet products development,
sale and services, etc. The Pledgee and the Pledgor-owned Beijing
AirInBox
Information Technologies Co., Ltd. entered into Exclusive Technical
Consulting and Services Agreement on March 31,
2004.
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4.
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In
order to make sure that the Pledgee collect technical service fees
under
Exclusive Technical Consulting and Services Agreement as normal from
Pledgor-owned Beijing AirInBox Information Technologies Co., Ltd.,
the
Pledgor are willing to severally and jointly pledge all their equity
interest in Beijing AirInBox Information Technologies Co., Ltd. to
the
Pledgee as a security for the Pledgee to collect the above-mentioned
fees.
In order to define each Party's rights and obligations, the Pledgee
and
the Pledgor through mutual negotiations hereby enter into this Agreement
based upon the following terms:
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I.
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DEFINITIONS
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Unless
otherwise provided in this Agreement, the following terms shall have the
following meanings:
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1.1
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Pledge
means the full content of Article 2
hereunder.
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1.2
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Equity
Interest means all the 100% equity interests in Beijing AirInBox
Information Technologies Co., Ltd. legally and jointly held by the
Pledgor
and all the present and future rights and benefits based on such
equity
interest.
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1.3
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Service
Agreement means the Exclusive Technical Consulting and Service Agreement
entered into by and between Beijing AirInBox Information Technologies
Co.,
Ltd. and the Pledgee on March 31, 2004.
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1.4
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Event
of Default means any event in accordance with Article 7 hereunder.
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1.5
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Notice
of Default means the notice of default issued by the Pledgee in accordance
with this Agreement.
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II.
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PLEDGE
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2.1
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The
Pledgor agrees to pledge all his equity interest in Beijing AirInBox
Information Technologies Co., Ltd. to the Pledgee to ensure the Pledgee
collect the services fees under the Services Agreement.
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2.2
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The
Pledge under this Agreement refers to the rights owned by the Pledgee
to
collect the fees (including legal fees), expenses and losses that
Beijing
AirInBox Information Technologies Co., Ltd. Shall pay under the Service
Agreement, and the civil liability that Beijing AirInBox Information
Technologies Co., Ltd. shall bear in case the Service Agreement wholly
or
partially nullify due to any
reason.
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2.3
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The
Pledge under this Agreement refers to the prior right owned by the
Pledgee
to the money gained from the conversion, auction, or sell of the
equity
interests pledged by the Pledgor to the
Pledgee.
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2.4
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The
pledge under this Agreement shall be terminated only when Beijing
AirInBox
Information Technologies Co., Ltd. has performed all the obligations
and
liabilities under the Servicing Agreement and the Pledgee has confirm
in
written form. If Beijing AirInBox Information Technologies Co., Ltd.
does
not fully perform all or part of its obligations or liabilities under
the
Servicing Agreement at the expiration of such agreements, the Pledgee
shall maintain the pledge hereunder up to the date all such obligations
and liabilities are fully
performed.
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III.
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EFFECT
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3.1
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This
Agreement shall take effect as of the date when the equity interests
pledged are recorded in the Register of Shareholder of Beijing AirInBox
Information Technologies Co., Ltd.
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3.2
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The
Pledgee is entitled to dispose the pledge hereunder if Beijing
AirInBox
Information Technologies Co., Ltd. fails to pay the fees in accordance
with the Servicing Agreement during the
Pledge.
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IV.
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PHYSICAL
POSSESSION OF DOCUMENTS
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4.1
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During
the term of Pledge under this Agreement, the Pledgor shall deliver
the
physical possession of the Certificate of Distribution (original)
of
Beijing AirInBox Information Technologies Co., Ltd. And provide the
testify of the proper record of such pledge on the shareholders'
name list
of Beijing AirInBox Information Technologies Co., Ltd. to the Pledgee
within one week as of the date of conclusion of this
Agreement.
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4.2
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The
Pledgor shall be entitled to collect the incomes (such as, including
but
not limited to, any dividends and profits) from the equity interests,
which shall become the assurance for the debt of Beijing AirInBox
Information Technologies Co., Ltd., within the term of this Agreement,
except for written consent of the Pledgee.
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V.
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WARRANTIES
AND REPRESENTATION OF THE PLEDGOR
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The
Pledgor hereby makes the following representation and warranties to the Pledgee
and confirm that the Pledgee execute such Agreement in reliance of such
representation and warranties:
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5.1
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The
Pledgor is the legal owner of the equity interests hereunder and
is
entitled to create pledge on such equity
interests;
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5.2
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The
Pledgee shall not be interfered by any other pledgee at any time
once the
Pledgee exercises the rights of the Pledge in accordance with this
Agreement.
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5.3
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The
Pledgee shall be entitled to dispose or assign the pledge in accordance
with relevant laws and this
Agreement.
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5.4
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The
execution and performance of this Agreement of the Pledgor has gained
all
necessary authorization and shall not violate any applicable laws
and
regulations. The representative who signs this Agreement shall be
lawfully
and effectively authorized.
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5.5
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The
Pledgor shall not encumber the equity interests (including but
not limited
to pledge) hereunder to any other
person.
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5.6
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The
Pledgor warrant that there is no on-going civil, administrative or
criminal litigation or administrative punishment or arbitration related
with the equity interests hereunder and have no idea about those
in future
at the date of conclusion of this
Agreement.
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5.7
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There
are no outstanding taxes, fees or undecided legal procedures related
with
the equity interests hereunder at the date of conclusion of this
Agreement.
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5.8
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Each
stipulation hereunder is the expression of each Party's true meaning
and
shall be binding upon all the
Parties.
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VI.
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COVENANT
OF THE PLEDGOR
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6.1
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During
the effective term of this Agreement, the Pledgor covenants to the
Pledgee
that the Pledgor shall:
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6.1.1
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not
transfer or assign the equity interests, create or permit to create
any
pledges which may have an adverse effect on the rights or benefits
of the
Pledgee without prior written consent from the Pledgee except transfer
to
the Pledgee or the person designated by the Pledgee as required by
the
Pledgee;
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6.1.2
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comply
with and implement laws and regulations with respect to the pledge
of
rights, present to the Pledgee the notices, orders or suggestions
with
respect to the Pledge issued or made by the competent authority
within
five days upon receiving such notices, orders or suggestions and
take
actions in accordance with the reasonable instruction of the
Pledgee;
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6.1.3
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timely
notify the Pledgee of any events or any received notices which may
affect
the Pledgor's equity interest or any part of its right, and any events
or
any received notices which may change the Pledgor's any covenant
and
obligation under this Agreement or which may affect the Pledgor's
performance of its obligations under this Agreement, take actions
in
accordance with the reasonable instruction of the Pledgee.
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6.2
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The
Pledgor agrees that the Pledgee's right of exercising the Pledge
obtained
from this Agreement shall not be suspended or hampered by the Pledgor
or
any successors of the Pledgor or any person authorized by the Pledgor
or
any other person.
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6.3
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The
Pledgor warrants to the Pledgee that in order to protect or perfect
the
security over the payment of the technical consulting and service
fees
under the Service Agreement, the Pledgor shall execute in good faith
and
cause other parties who have interests in the pledge to execute all
the
title certificates, contracts, and/or perform and cause other parties
who
have interests to take action as required by the Pledgee and make
access
to exercise the rights and authorization vested in the Pledgee under
this
Agreement, and execute all the documents with respect to the changes
of
certificate of equity interests with the Pledgee or another party
designated by the Pledgee, and provides the Pledgee with all the
documents
regarded as necessary to the Pledgee within the reasonable
time.
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6.4
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The
Pledgor warrants to the Pledgee that the Pledgor will comply with
and
perform all the guarantees, covenants, agreements, representations
and
conditions for the benefits of the Pledgee. The Pledgor shall compensate
for all the losses suffered by the Pledgee for the reasons that the
Pledgor does not perform or fully perform their guarantees, covenants,
agreements, representations and
conditions.
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VII.
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EVENT
OF DEFAULT
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7.1
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The
following events shall be regarded as an event of
default:
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7.1.1
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Beijing
AirInBox Information Technologies Co., Ltd. or its successor or trustee
fails to make full payment of service fees under the Servicing Agreement
as scheduled there under;
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7.1.2
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The
Pledgor makes any material misleading or fraudulent representations
or
warranties under Article 5 herein, and/or the Pledgor is in violation
of
any warranties under Article 5
herein;
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7.1.3
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The
Pledgor violates the warrants under Article 5 and the covenants under
Article 6 herein;
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7.1.4
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The
Pledgor badly violates any terms and conditions
herein;
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7.1.5
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The
Pledgor waives the pledged equity interests or transfers or assigns
the
pledged equity interests without prior written consent from the
Pledgee
except otherwise agreed under Article 6.1.1
herein;
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7.1.6
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The
Pledgor's any external loan, security, compensation, covenants or
any
other compensation liabilities (1) are required to be repaid or performed
prior to the scheduled date; or (2) are due but can not be repaid
or
performed as scheduled and thereby cause the Pledgee to deem that
the
Pledgor's capacity to perform the obligations herein is
affected;
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7.1.7
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The
Pledgor is incapable of repaying the general debt or other debt;
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7.1.8
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This
Agreement is illegal for the reason of the promulgation of any related
laws or the Pledgor's incapability of continuing to perform the
obligations herein;
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7.1.9
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Any
approval, permits, licenses or authorization from the competent authority
of the government needed to perform this Agreement or validate this
Agreement are withdrawn, suspended, invalidated or materially
amended;
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7.1.10
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The
property of the Pledgor is adversely changed and cause the Pledgee
to deem
that the capability of the Pledgor to perform the obligations herein
is
affected;
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7.1.11
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Other
circumstances whereby the Pledgee is incapable of exercising the
right to
dispose the Pledge in accordance with the related
laws.
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7.2
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The
Pledgor shall immediately give a written notice to the Pledgee if
the
Pledgor is aware of or find that any event under Article 7.1 herein
or any
events that may result in the foregoing events have happened or is
going
on.
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7.3
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Unless
the event of default under Article 7.1 herein has been solved to
the
Pledgee's satisfaction, the Pledgee, at any time when the event of
default
happens or thereafter, may give a written notice of default to the
Pledgor
and require the Pledgor to immediately make full payment of the
outstanding fees under the Service Agreement, and other payables
or
dispose the Pledge in accordance with Article 8
herein.
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VIII.
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EXERCISE
OF THE RIGHT OF THE PLEDGE
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8.1
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The
Pledgor shall not transfer or assign the pledge without prior written
approval from the Pledgee prior to the full repayment of the fees
under
the Service Agreement.
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8.2
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The
Pledgee shall give a notice of default to the Pledgor when the Pledgee
exercises the right of pledge.
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8.3
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Subject
to Article 7.3, the Pledgee may exercise the right to dispose the
Pledge
at any time when the Pledgee gives a notice of default in accordance
with
Article 7.3 or thereafter.
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8.4
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The
Pledgee is entitled to have priority in receiving payment by the
evaluation or proceeds from the auction or sale of whole or part
of the
equity interests pledged herein in accordance with legal procedure
until
the outstanding fees under the Servicing Agreement and all other
payables
there under are repaid.
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8.5
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The
Pledgor shall not hinder the Pledgee from disposing the Pledge in
accordance with this Agreement and shall give necessary assistance
so that
the Pledgee could realize his
Pledge.
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IX.
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TRANSFER
OR ASSIGNMENT
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9.1
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The
Pledgor shall not donate or transfer his rights and obligations to
any
third party herein without prior consent from the
Pledgee.
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9.2
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This
Agreement shall be binding upon the Pledgor and his successors and
be
effective to the Pledgee and his each successor and
assignee.
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9.3
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The
Pledgee may transfer or assign his all or any rights and obligations
under
the Service Agreement to any third party at any time. In this case,
the
assignee shall enjoy and undertake the same rights and obligations
herein
of the Pledgee as if the assignee is a party hereto. When the Pledgee
transfers or assigns the rights and obligations under the Service
Agreement, at the request of the Pledgee, the Pledgor shall execute
the
relevant agreements and/or documents with respect to such transfer
or
assignment.
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9.4
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After
the Pledgee's change resulting from the transfer or assignment, the
new
parties to the pledge shall reexecute a pledge
contract.
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X.
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TERMINATION
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This
Agreement shall not be terminated until the fees under the Service Agreement
are
paid off and the Beijing AirInBox Information Technologies Co., Ltd. will not
undertake any obligations under the Service Agreement any more, and the Pledgee
shall cancel or terminate this Agreement within reasonable time as soon as
practicable.
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XI.
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FEES
AND OTHER CHARGES
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11.1
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The
Pledgor shall be responsible for all the fees and actual expenditures
in
relation to this Agreement including but not limited to legal fees,
cost
of production, stamp tax and any other taxes and charges. If the
Pledgee
pays the relevant taxes in accordance with the laws, the Pledgor
shall
fully indemnify such taxes paid by the
Pledgee.
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11.2
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The
Pledgor shall be responsible for all the fees (including but not
limited
to any taxes, formalities fees, management fees, litigation fees,
attorney's fees, and various insurance premiums in connection with
disposition of Pledge) incurred by the Pledgor for the reason that
(1) The
Pledgor fails to pay any payable taxes, fees or charges in accordance
with
this Agreement; or (2) The Pledgee has recourse to any foregoing
taxes,
charges or fees by any means for other
reasons.
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XII.
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FORCE
MAJEURE
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12.1
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If
this Agreement is delayed in or prevented from performing in the
Event of
Force Majeure ("Event of Force Majeure"), only within the limitation
of
such delay or prevention, the affected party is absolved from any
liability under this Agreement. Force Majeure, which includes acts
of
governments, acts of nature, fire, explosion, geographic change,
flood,
earthquake, tide, lightning, war, means any unforeseen events beyond
the
prevented party's reasonable control and cannot be prevented with
reasonable care. However, any shortage of credit, capital or finance
shall
not be regarded as an event beyond a Party's reasonable control.
The Party
affected by Force Majeure who claims for exemption from performing
any
obligations under this Agreement or under any Article herein shall
notify
the other party of such exemption promptly and advice him of the
steps to
be taken for completion of the
performance.
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12.2
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The
Pledge affected by Force Majeure shall not assume any liability under
this
Agreement. However, subject to the Party affected by Force Majeure
having
taken its reasonable and practicable efforts to perform this Agreement,
the Party claiming for exemption of the liabilities may only be exempted
from performing such liability as within limitation of the part
performance delayed or prevented by Force Majeure. Once causes for
such
exemption of liabilities are rectified and remedied, both parties
agree to
resume performance of this Agreement with their best
efforts.
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XIII.
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APPLICABLE
LAW AND DISPUTE RESOLUTION
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13.1
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The
execution, validity, performance and interpretation of this Agreement
shall be governed by and construed in accordance with the PRC
law.
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13.2
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The
parties shall strive to settle any dispute arising from the interpretation
or performance through friendly consultation. In case no settlement
can be
reached through consultation, each party can submit such matter to
China
International Economic and Trade Arbitration Commission ("CIETAC")
for
arbitration. The arbitration shall follow the current rules of CIETAC,
and
the arbitration proceedings shall be conducted in Chinese and shall
take
place in Beijing. The arbitration award shall be final and binding
upon
the parties.
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13.3
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Each
Party shall continue performance of this Agreement in good faith
according
to the stipulations herein except the matters in
dispute.
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XIV.
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NOTICE
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Any
notice or correspondence, which is given by the Party as stipulated hereunder,
shall be in Chinese and English writing and shall be delivered in person or
by
registered or prepaid mail or recognized express service, or be transmitted
by
telex or facsimile to the following addresses:
PLEDGEE:
KONGZHONG INFORMATION TECHNOLOGIES (BEIJING) CO., LTD.
Registered
Address: 35 F, Tengda Xxxxx, Xx.000 Xxxxx Xxxxxx, Xxxxxxx Xxxxxxxx, Xxxxxxx,
XXX
Fax:
(86)10−00000000
Tele:
(86)10−88576000
Addressee:
Xxxxxx Xxxx
XXXXXX
XXXX
Address:
35 F, Tengda Xxxxx, Xx.000 Xxxxx Xxxxxx, Xxxxxxx Xxxxxxxx, Xxxxxxx,
XXX
Fax:
(86)10−00000000
Tele:
(86)10−88576000
Addressee:
Xxxxxx Xxxx
XXXXXXX
XXXX
Address:
35 F, Tengda Xxxxx, Xx.000 Xxxxx Xxxxxx, Xxxxxxx Xxxxxxxx, Xxxxxxx,
XXX
Fax:
(86)10−00000000
Tele:
(86)10−88576000
Addressee:
Xxxxxxx Xxxx
XXXX
XXXXX
Address:
35 F, Tengda Xxxxx, Xx.000 Xxxxx Xxxxxx, Xxxxxxx Xxxxxxxx, Xxxxxxx,
XXX
Fax:
(86)10−00000000
Tele:
(86)10−88576000
Addressee:
Xxxx Xxxxx
LINGUANG
WU
Address:
35 F, Tengda Xxxxx, Xx.000 Xxxxx Xxxxxx, Xxxxxxx Xxxxxxxx, Xxxxxxx,
XXX
Fax:
(86)10−00000000
Tele:
(86)10−88576000
Addressee:
Linguang Wu
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XV.
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APPENDICES
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The
appendices to this Agreement are entire and integral part of this Agreement.
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XVI.
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WAIVER
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The
Pledgee's non−exercise or delay in exercise of any rights, remedies, power or
privileges hereunder shall not be deemed as the waiver of such rights, remedies,
power or privileges. Any single or partial exercise of the rights, remedies,
power and privileges shall not exclude the Pledgee from exercising any other
rights, remedies, power and privileges. The rights, remedies, power and
privileges hereunder are accumulative and shall not exclude the application
of
any other rights, remedies, power and privileges stipulated by
laws.
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XVII.
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MISCELLANEOUS
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17.1
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Any
amendments, modifications or supplements to this Agreement shall
be in
writing and come into effect upon being executed and sealed by the
parties
hereto.
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17.2
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This
Agreement and all the agreements and/or documents referenced or
specifically included herein constitute the entire agreement among
the
Parties in respect of the subject matter hereof and supersede all
prior
oral or written agreements, contract, understanding and correspondence
among them, including the equity pledge agreement among the Pledgee,
Yang
Cha, Xxxxxxx Xxxx, Xxxxxx Xxxx and Xxxx Xxxxx dated May 10, 2004.
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17.3
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In
case any terms and stipulations in this Agreement is regarded as
illegal
or can not be performed in accordance with the applicable law, such
terms
and stipulations shall be deemed to lose effect and enforcement within
the
scope governed by the applicable law, and the rest stipulations will
remain effective.
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17.4
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This
Agreement shall be kept in seven
copies.
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(No
text
on this page)
PLEDGEE:
KONGZHONG INFORMATION TECHNOLOGIES (BEIJING) CO., LTD.
Authorized
Representative: /s/ Xxxxxx Xxxx
PLEDGOR:
XXXXXX XXXX
Signature:
/s/ Xxxxxx Xxxx
PLEDGOR:
XXXXXXX XXXX
Signature:
/s/ Xxxxxxx Xxxx
PLEDGOR:
XXXX XXXXX
Signature:
/s/ Xxxx Xxxxx
PLEDGOR:
LINGUANG WU
Signature:
/s/ Linguang Wu
APPENDICES
| 1. |
Register
of Shareholders of Beijing AirInBox Information Technologies Co.,
Ltd.
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| 2. |
Certificate
of Capital Contribution of Beijing AirInBox Information Technologies
Co.,
Ltd.
|
