EXHIBIT 4.6
COMPANY LOCK-UP AGREEMENT
January 30, 2004
Linktone Ltd.
00 Xxxxxx Xxxxx Xxxx
Xxxxxxxx 000000
Xxxxx
Ladies and Gentlemen:
This Agreement is being delivered to you in connection with
the proposed offering (the "Offering") of American depositary shares ("ADSs")
representing ordinary shares of the Company, par value US$0.0001 per share
("Ordinary Shares"), by Linktone Ltd., a company limited by shares incorporated
under the laws of the Cayman Islands (the "Company").
All share amounts stated below reflect the 100-for-one share
split which will occur before or at the time of the Offering.
For purposes of this Agreement, the following definitions will
apply:
"DIRECTOR/OBSERVER SHAREHOLDERS" shall mean IP Fund One, L.P.,
Icon Ventures Asia Limited, Mitsubishi Corporation, Index Corporation
and Cresciendo Investments Limited.
"FOUNDER AND 10% SHAREHOLDERS" shall mean Intrinsic Technology
(Holdings) Ltd., Merry Asia Limited, Lunar Group Xxxxxxx Partners I
LLC, Lunar Group Stokenchurch Partners I LLC, LiTech Digital Technology
Limited and People Holdings Limited.
"IPO PRICE" shall mean the sale price of the ADSs in the
Offering.
"ONE-MONTH MOVING AVERAGE" shall mean, on any given date, the
average of the daily closing prices of the ADSs, as reported on the
Nasdaq National Market, for every business day during the one-month
period immediately prior to that given date.
"TERMINATION OF THE UNDERWRITER LOCK-UP AGREEMENT" shall mean
the expiration, or mutually agreed termination given in writing, of the
Underwriter Lock-Up Agreement entered into by and among the Company's
shareholders and Credit Suisse First Boston LLC.
In consideration and as a condition of the Company effecting
the Offering, and for other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the undersigned agrees as follows:
That for the two-year period commencing upon the Termination
of the Underwriter Lock-Up Agreement, the undersigned will not, and
will not announce its intention or make any application or filing with
the U.S. Securities and Exchange Commission or any other applicable
regulatory authority to, directly or indirectly
(1) offer for sale, pledge, encumber, sell, contract to sell, sell
any option or contract to purchase, purchase any option or contract to
sell, grant any option, right or warrant to purchase, lend, or
otherwise transfer or dispose of (or enter into any transaction or
device which is designed to, or could reasonably be expected to, result
in the disposition by any person at any time in the future of),
directly or indirectly, (A) ADSs, (B) Ordinary Shares or securities
convertible into or exercisable or exchangeable for Ordinary Shares,
(C) securities of the same class as the ADSs or Ordinary Shares or (D)
other instruments representing interests in securities of the same
class as ADSs or Ordinary Shares or
(2) sell, grant or enter into any option, right, warrant, swap or
other arrangement with respect to, or which transfers to another, in
whole or in part, of the economic consequences of ownership of ADSs or
Ordinary Shares
whether any such transaction described in clause (1) or (2) above is to
be settled by delivery of ADSs, Ordinary Shares or such other
securities, in cash or otherwise. The forgoing shall not, however,
restrict or prohibit any shareholder from effecting the following
transactions, as applicable:
(1) In the case of the Founder and 10% Shareholders, any
transaction or series of transactions described above:
(a) if the One-Month Moving Average on the date of the
proposed transaction or series of transactions
exceeds 125% of the IPO Price, or
(b) involving in the aggregate not more than 2,500,000
Ordinary Shares, ADSs representing not more 2,500,000
Ordinary Shares, or options, rights, warrants, swaps
or other arrangements with respect to the economic
consequences of not more than 2,500,000 Ordinary
Shares (it being understood and agreed that the
2,500,000 share amount above applies to each such
entity individually) in any 30-day period.
(2) In the case of the Director/Observer Shareholders, any
transaction or series of transactions described above:
(a) if the One-Month Moving Average on the date of the
proposed transaction or series of transactions
exceeds 125% of the IPO Price, or
(b) involving in the aggregate not more than one-third of
the Ordinary Shares owned by the shareholder on the
date of the Offering, ADSs representing not more than
one-third of the Ordinary Shares owned by the
shareholder on the date of the Offering, or options,
rights, warrants, swaps or other arrangements with
respect to the economic consequences of not more than
one-third of the Ordinary Shares owned by the
shareholder on the date of
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the Offering (it being understood and agreed that the
share amount above applies to each such entity
individually) in any 30 day period.
Any ADSs or Ordinary Shares received upon exercise of options
granted to the undersigned will also be subject to this Agreement. Any ADSs or
Ordinary Shares acquired by the undersigned in the open market will not be
subject to this Agreement. A transfer of ADSs or Ordinary Shares to a family
member or trust may be made after this date, provided the transferee agrees to
be bound in writing by the terms of this Agreement.
In furtherance of the foregoing, the Company, its transfer
agent and registrar and the depositary for the ADSs are hereby authorized to
decline to make any transfer of ADSs or Ordinary Shares if such transfer would
constitute a violation or breach of this Agreement.
The undersigned understands that the Company will proceed with
the Offering in reliance on this Agreement. However, whether or not the Offering
occurs depends on a number of factors, including market conditions.
This Agreement may be executed in counterparts, each of which
shall be deemed an original but all of which shall constitute one and the same
instrument.
This Agreement shall be binding on the undersigned and the
successors, heirs, personal representatives and assigns of the undersigned.
This Agreement shall be governed by and construed in
accordance with the laws of the State of New York, United States of America. The
undersigned irrevocably submits to the non-exclusive jurisdiction of any New
York state court or United States federal court sitting in New York City over
any suit, action or proceeding arising out of or relating to this Agreement.
Nothing contained herein shall affect or limit any right to serve process in any
manner permitted by law to bring proceedings in the courts of any jurisdiction
or to enforce in any lawful manner a judgment obtained in one jurisdiction in
any other jurisdiction.
Notwithstanding anything herein to the contrary, this
Agreement shall terminate and have no effect if for any reason the underwriting
agreement for the Offering is terminated prior to the closing of the Offering.
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IN WITNESS WHEREOF, this Agreement is hereby executed and
delivered as of the date first set forth above.
Very truly yours,
_________________________ (entity name if applicable)
By:______________________
Name:
Title:
Accepted as of the date
first set forth above
LINKTONE LTD.
By:______________________
Name:
Title:
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