EXHIBIT 4.22
LOAN AGREEMENT
The Loan Agreement (the "Agreement") is entered into as of 25 August, 2004
between the following two parties.
(1) LINKTONE LTD. (the "Lender"), a limited company established and
registered in Cayman island.
LEGAL ADDRESS: Cayman island in British West Indies
(2) Xxxx Xxxx (the "Borrower")
PRC ID NUMBER: 310107780209404
ADDRESS: Room 000, Xx.00, Xxxx 000, Xxxxxx Xxxx, Xxxxxxxx
The Lender and the Borrower will each be referred to as "One Party" and
the Lender together with the Borrower will be referred to as "Both Parties"
collectively.
WHEREAS, the Borrower holds 50% equity in Shanghai Unilink Computer Co.,
Ltd. (the "Borrower's Company"), a limited liability company registered in the
People's Republic of China (the "PRC").
WHEREAS, the Lender is a company registered in Cayman Islands. The Lender
intends to provide a loan to the Borrower.
NOW THEREFORE, Both Parties agree as follows:
1. LOAN
1.1 The Lender agrees to provide a long-term loan to the Borrower with the
principal as RMB 5,000,000 in accordance with the terms and conditions set forth
in this Agreement. Term for such loan will be ten (10) years and shall be
extended upon the agreement of Both Parties through negotiations. During the
term or extended term of such loan, the Borrower shall refund the loan ahead of
the loan term or the extended loan term, if either of the following events
occurs:
(1) the Borrower dies or becomes a person without capacity or with limited
capacity for civil acts;
(2) Yang Lei quits from or dismissed by the Lender or its affiliates;
(3) the Borrower commits a crime or involves a crime;
(4) any other third party claim more than RMB2,000,000 against the
Borrower;
(5) foreign investors are permitted to invest in the business of
value-added telecommunication and the relevant authorities begin to approve such
business in accordance with the applicable laws of PRC.
1.2 The Lender agrees to remit the amount of such loan to the account
designated by the Borrower within seven (7) days after receiving the Borrower's
written notification to use the loan, provided that all of the preconditions set
forth in Section 2 of this Agreement are
satisfied. The Borrower shall issue confirmation notification to the Lender on
the day receiving the amount of the loan. The commitments of the Lender under
this section are effective only to the Borrower itself, but not the Borrower's
inheritor or transferee.
1.3 The Borrower agrees to accept such loan provided by the Lender and
agrees and warrants hereby such loan shall be used only for the investment in
the Borrower's Company to expand the business of the company. Without the
Lender's prior written consent, the Borrower shall not use the amount of such
loan for any other purpose or transfer or pledge its equity in the Borrower's
Company to any other third party.
1.4 The Lender and the Borrower jointly agree and confirm that the
Borrower shall refund the loan only by transferring all of Borrower's equity in
the Borrower's Company to the Lender or other (legal person or natural person)
designated by the Lender.
1.5 The Lender and the Borrower hereby jointly agree and confirm that any
proceeds raised from the transfer of Borrower's equity in the Borrower's Company
shall be paid to the Lender, as the consideration of the loan provided by the
Lender, in the means designated by the Lender in accordance with this Agreement
and the Agreement shall terminate simultaneously.
1.6 The Lender and the Borrower hereby jointly agree and confirm that the
Lender has the right to, but has no obligation to, at any time, purchase or
designate the other (legal person or natural person) to purchase all or part of
Borrower's equity in the Borrower's Company at purchase price agreed by Both
Parties, subject to the permission of the law.
The Borrower warrants to issue an irrevocable proxy to confer all
its rights as a shareholder of the Borrower's Company to a person designated by
the Lender.
1.7 Interest of the Loan. In the event when the Borrower transfer its
equity in the Borrower's Company to the Lender or the person designated by the
Lender, the loan hereunder shall be deemed as the loan without interest, if the
transfer price of such equity equals to or is less than the principal under this
Agreement. However, in case that the transfer price exceeds the amount of
principal hereunder, the exceeding amounts shall be deemed the interests of such
loan under this Agreement and shall be paid to the Lender by the Borrower.
2. PRECONDITIONS OF THE LOAN
The Lender will be liable to provide loan to the Borrower in accordance
with Section 1.1 when all of the following conditions are satisfied or are
waived by the Lender in writing.
2.1 Subject to the terms of Section 1.2, the Lender receives the drawing notice
formally issued by the Borrower.
2.2 The Lender, the Borrower and Shanghai Huitong Information Co., Ltd. have
formally executed a equity pledge contract (the "Equity Pledge Contract"), by
virtue of which the Borrower agrees to pledge all its equity in the Borrower's
Company to Shanghai Huitong Information Co., Ltd.
2.3 The Borrower, Lender and Borrower's Company have executed an exclusive
purchase contract (the "Exclusive Purchase Contract"), according to which the
Borrower shall grant the
Lender an irrevocable option to purchase all of the Borrower's equity in the
Borrower's Company, provided that it is permitted by laws of PRC.
2.4 The above-mentioned Equity Pledge Contract and Exclusive Purchase Contract
are in full effectiveness, of which there is none of default event and all
relevant filing procedures, approval, authorization, registration and
governmental proceedings have been obtained or completed (if needed).
2.5 The representation and warranties under Section 3.2 are, and shall be true,
integrate, correct and un-misleading, on the day of drawing notification and on
the drawing day, just as the representation and warranties are made on such
days.
2.6 The Borrower breaches none of its commitments under Section 4 and no event
which will affect the Borrower's performance of the obligations hereunder,
happens or threatens to happen.
3. REPRESENTATION AND WARRANTIES
3.1 The Lender hereby represents and warrants to the Borrower that, from
the execution date of this Agreement until the date this Agreement terminates,
(a) the Lender is a company registered and validly existing under
the laws of Cayman Islands ;
(b) subject to its business scope, articles of association and other
organizational documents, the Lender has full right, power and all necessary and
appropriate approval and authorization to execute and perform this Agreement;
(c) the execution and the performance of this Agreement shall not be
against any enforceable and effective laws and regulations, governmental
approval, authorization and notification, other government documents and any
contracts executed with, or commitments made to, any third party; and
(d) this Agreement shall constitute the legal, valid and binding
obligations of the Lender, which is enforceable against the Lender in accordance
with its terms upon its execution.
3.2 The Borrower hereby represents and warrants that, from the execution
date of this Agreement until the date this Agreement terminates,
(a) the Borrower's Company is a limited liability company registered
and validly existing under the laws of PRC and the Borrower is the legal owner
of its equity interest in the Company;
(b) subject to its articles of association and other organizational
documents, the Borrower has full right, power and all necessary and appropriate
approval and authorization to execute and perform this Agreement;
(c) the execution and the performance of this Agreement shall not be
against any enforceable and effective laws and regulations, governmental
approval, authorization and
notification, other government documents and any contracts executed with, or
commitments made to, any third party;
(d) this Agreement shall constitute the legal and valid obligations
of the Borrower, which is enforceable against the Borrower in accordance with
its terms upon its execution;
(e) the Borrower has paid contribution in full for its equity in the
Borrower's Company in accordance with applicable laws and regulations and has
acquired capital contribution verification report issued by the qualified
accounting firm;
(f) the Borrower neither create pledge or any other security, nor
make third party any offer to transfer the Borrower's equity nor make acceptance
for the offer of any third party to purchase Borrower's equity, nor execute
agreement with any third party to transfer Borrower's equity, except the terms
of the Equity Pledge Contract;
(g) there are no disputes and legal or other proceedings pending or
threatened before any court, tribunal or other regulatory authority and
involving the Borrower; and
(h) the Borrower's Company has completed all governmental approval,
authorization, license, register, filing and otherwise necessary to carry out
the business subject to its business license and to possess its assets.
4. COMMITMENTS OF BORROWER
4.1 The Borrower, as major shareholder of the Borrower's Company, agrees that it
shall cause the Borrower's Company, during the term of this Agreement,
(a) not to supply, amend or modify its articles of association, to
increase or decrease its registered capital, or to change its capital structure
in any way without the Lender's prior written consent;
(b) subject to good financial and business rules and practices, to
maintain and operate its business and handle matters prudently and effectively;
(c) not to sell, transfer, mortgage, dispose of in any other way, or
to create other security interest on, any of its assets, business or legal right
to collect interests without the Lender's prior written consent;
(d) without the Lender's prior written consent, not to create,
succeed to, guarantee or permit any debt, except (i)the debt arising in the
course of the ordinary or daily business operation, but not arising from the
loan, and (ii)the debt being reported to the Lender or having approved by the
Lender in writing;
(e) to operate persistently all the business of the Borrower's
Company and to maintain the value of its assets;
(f) without the Lender's prior written consent, not to execute any
material contracts (during this stage, a contract will be deemed material if the
value of it exceeds RMB100,000) except those executed during the ordinary
operation;
(g) not to provide loan or credit to any person without the Lender's
prior written consent;
(h) to provide information concerning all of its operation and
financial affairs subject to the Lender's request;
(i) to purchase insurance from the insurance company accepted by the
Lender and maintain persistently such insurance, provided that the amount and
type of such insurance are as the same as, or equivalent to, the insurance
amount and insurance type taken out generally by the company which operates, in
the same territory, the similar business and possesses the similar properties or
assets;
(j) not to merger or combine with, buy or invest in, any other
person without the Lender's prior written consent;
(k) to inform promptly the Lender of the pending or threatened suit,
arbitration or regulatory procedure concerning the assets, business or income of
the Borrower's Company;
(l) to execute all necessary or appropriate documents, to take all
necessary or appropriate action and to bring all necessary or appropriate
lawsuit or to make all necessary and appropriate defending against all claims,
in order to maintain the ownership of the Borrower's Company for all its assets;
(m) without the Lender's prior written consent, not to issue
dividends to each shareholder in any form, provided however, the Borrower's
Company shall promptly allocate all its allocable profits to each of its
shareholders upon the Lender's request;
(n) to appoint any person designated by the Lender to be the
director of the Borrower's Company subject to the Lender's request;
(o) to comply strictly with the terms under the Exclusive Purchase
Contract and to do nothing affecting the validity and enforceability of such
contract;
4.2 The Borrower agrees that it shall, during the term of this Agreement,
(a) not sell, transfer, mortgage, dispose of in any other way, or
create other security interest on, any of its legal right of equity or equity
interest without the Lender's prior written consent, except the terms of the
Equity Pledge Contract;
(b) cause the shareholder's meeting appointed by the Lender not to
sell, transfer, mortgage, dispose of in any other way, or to create other
security interest on, any of the Borrower's legal right of equity or equity
interest without the Lender's prior written consent, except that the counter
party is the Lender or those designated by the Lender;
(c) cause the shareholder's meeting appointed by the Lender not to
merge or combine with, buy or invest in, any person without the Lender's prior
consent;
(d) promptly inform the Lender of the pending or threatened suit,
arbitration or regulatory procedure concerning the Borrower's equity in the
Borrower's Company;
(e) execute all necessary or appropriate documents, take all
necessary or appropriate action and bring all necessary or appropriate lawsuit
or make all necessary and appropriate defending against all claims, in order to
maintain the ownership of the Borrower's Company for all its assets;
(f) do nothing that may materially affect the assets, business and
liabilities of the Borrower's Company without the Lender's prior written
consent;
(g) appoint any person to be the director of the Borrower's Company
subject to the Lender's request;
(h) transfer promptly and unconditionally, at any time, all of the
Borrower's equity in the Borrower's Company to the Lender or representative
designated by the Lender and cause the other shareholder of the Borrower's
Company to waive its option to purchase such equity hereof, subject to the
requesting of the then holding company of the Lender, provided that such
transfer is permitted under the laws of PRC;
(i) cause the other shareholder of the Borrower's Company to
transfer promptly and unconditionally, at any time, all equity of the other
shareholder in the Borrower's Company to the representative designated by the
Lender and the Borrower hereby waive its option to purchase such equity hereof,
subject to the requesting of the then holding company of the Lender, provided
that such transfer is permitted under the laws of PRC;
(j) refund the loan to the Lender with such amount arising from
transferring Borrower's equity in the Borrower's Company if the Lender purchases
the Borrower's equity subject to the Exclusive Purchase Contract; and
(k) comply strictly with the terms of this Agreement, Equity Pledge
Contract and Exclusive Purchase Contract, fully perform all obligations under
such contracts and do nothing affecting the validity and enforceability of such
contracts.
5. DEFAULT
The Borrower shall pay the overdue interests with 0.01% of the overdue
amount until the Borrower refunds all of the principal, overdue interests of the
principal and other money, in the event when the Borrower dose not perform its
obligation of repayment.
6. NOTIFICATIONS
Notice or other communications under this Contract shall be delivered
personally or sent by facsimile transmission or by registered mail to the
address set forth below, except that such address has been changed in writing.
The date noted on the return receipt of the registered mail is the service date
of the notice if the notice is sent by registered mail; the sending date is the
service date of the notice if the notice is sent personally or by facsimile
transmission. The original of the notice shall be sent personally or by
registered mail to the following address after the notice is sent by facsimile.
the Lender: Linktone Ltd.
Address: Cayman islands, British West Indies
the Borrower: Xxxx Xxxx
Address: Xxxx 000, Xx.00, Xxxx 000, Xxxxxx Xxxx, Xxxxxxxx
0. CONFIDENTIALITY
Both parties acknowledge and confirm that any oral or written materials
concerning this Agreement exchanged between them are confidential information.
Both parties shall protect and maintain the confidentiality of all such
confidential data and information and shall not disclose to any third party
without the other party's written consent, except (a) the data or information
that was in the public domain or later becomes published or generally known to
the public, provided that it is not released by the receiving party, (b) the
data or information that shall be disclosed pursuant to applicable laws or
regulations, and (c) the data or information that shall be disclosed to One
Party's legal counsel or financial counsel who shall also bear the obligation of
maintaining the confidentiality similar to the obligations hereof. The undue
disclosing of the confidential data or information of One Party's legal counsel
or financial counsel shall be deemed the undue disclosing of such party who
shall take on the liability of breach of this Agreement. This section shall
survive after this Agreement terminates by any reason.
8. GOVERNING LAW AND SETTLEMENT OF DISPUTES
8.1 The execution, validity, interpretation, performance,
implementation, termination and settlement of disputes of this Agreement shall
be governed by the laws of PRC.
8.2 Both Parties shall strive to settle any dispute arising from the
interpretation or performance in connection with this Agreement through friendly
consultation within 30 days after One Party ask for consultation. In case no
settlement can be reached through consultation, One Party can submit such matter
to China International Economic and Trade Arbitration Commission (the "CIETAC").
The arbitration shall follow the current rules of CIETAC, and the arbitration
proceedings shall take place in Shanghai. The arbitration award shall be final
and binding upon the Both Parties and shall be enforceable in accordance as its
terms.
8.3 In case of any disputes arising out of the interpretation and
performance of this Agreement or any pending arbitration of such dispute, Both
Parties shall continue to perform their rights and obligations under this
Agreement, except that such maters are involved in the disputes.
9. MISCELLANEOUS
9.1 This Agreement shall be effective as of the date of execution and
shall expire when Both Parties has fully performed their obligations under this
Agreement.
9.2 This Agreement is executed in two copies, each Party hold one copy
which has the same legal effect.
9.3 Both Parties may amend and supply this Agreement with a written
agreement The amendment and supplement duly executed by Both Parties shall be
part of this Agreement and shall have the same legal effect as this Agreement.
9.4 Any provision of this Agreement that is invalid or unenforceable shall
not affect the validity and enforceability of any other provisions hereof.
9.5 The Appendices referred to in this Agreement are an integral part of
this Agreement and have the same legal effect as this Agreement.
the Lender: Linktone Ltd. (Seal)
Representative:
the Borrower: /s/ Xxxx Xxxx
