Exhibit 10.22
[Translation of Chinese original]
Assignment of Share Pledge Agreement
This Assignment of Share Pledge Agreement (The "Agreement") is entered into on
the day of September 26, 2003 in Beijing by and among the following parties:
Party A: Beijing Super Channel Network Limited
Address: Xxxx X00, 0/xx/ xxxxx, Xxxx Xxxxx Xxxxx Xxxx No.3, Beijing
Economic and Technology Development Area
Party B: Wang Xxx Xxxx
Gender: Female
PRC Passport No.: PCHN143637106
Address: Xxxx 0-000, Xxxxx 0, Xxxxxxxxxxxxx, Xxxxxxxx Xxxxxxxx, Xxxxxxx
Party C: LAVHIJI VALE LIMITED
Address: Offshore Incorporations Limited, P.O. Box 957, Offshore
Incorporations Center, Road Town, Tortola, British Virgin
Islands.
WHEREAS,
1. Party B is the citizen of the People's Republic of China ("PRC) and owns
80% of the equity interest in Beijing Lei Ting Wan Jun Network Technology
Ltd (the " Lei Ting Company"). Lei Ting Company is a limited liability
company registered in Beijing under the laws of the PRC.
2. Party C is a limited liability company registered in British Virgin
Islands.
3. Party B and Party C have entered into a Loan Agreement, pursuant to which
Party C shall provide a long-term loan to Party B in meeting Lei Ting
Company's capital demands for its business development. Furthermore, Party
B and Party C have entered into a Share Option Agreement, pursuant to which
Party B agrees to grant Party A the exclusive right to purchase 80% of the
equity interest of Lei Ting Company held by Party B on the premise that the
PRC law permits. (the "Share Option") In order to ensure Party B's
performance of its obligations under the Loan Agreement and the Share
Option Agreement aforesaid, Party B and Party C entered into Share Pledge
Agreement (the "Original Pledge Agreement") on August 8, 2002, pursuant to
which Party B pledged all its 80% equity interest in Lei Ting Company to
Party C.
4. Party A, a wholly foreign-owned company registered in Beijing under the
laws of the PRC, has been licensed by the PRC relevant government authority
to engage in the business of Internet technical service. Party A is a
subsidiary wholly owned by Party C's affiliate company.
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5. Party A and Lei Ting Company enter into Exclusive Technical and Consulting
Services Agreement (the " Service Agreement") on September 26, 2003,
pursuant to which Party A shall provide technical support to Lei Ting
Company and Lei Ting Company shall pay technical and consulting service
fees to Party A as a consideration.
6. In order to ensure Party A is collecting technical service fees from Lei
Ting Company, Party C is willing to assign all of its pledge over the 80%
equity interest in Lei Ting Company under the Original Pledge Agreement to
Party A and Party B is also willing to pledge over the above share
interest, which was originally pledged to Party C, to Party A as a security
for Party A's collecting technical and consulting service fees under the
Service Agreement. Party A, Party B and Party C agree to enter into this
Agreement to replace the Original Pledge Agreement entered into by and
between Party B and Party C.
In order to define each Party's rights and obligations, Party A, Party B
and Party C through mutual negotiations hereby enter into this Agreement
based upon the following terms:
1. Definitions And Interpretation
Unless otherwise provided in this Agreement, the following terms shall have the
following meanings:
1.1 Pledge means the full content listed in Article 2 hereunder
1.2 Equity Interest means all its 80% equity interests in Lei Ting Company
legally held by Party B.
1.3 Rate of Pledge means the ratio between the value of the pledge under
this Agreement and the exclusive technical and consulting service fees
under the Service Agreement.
1.4 Term of Pledge means the period provided for under Article 3.2
hereunder.
1.5 Service Agreement means the Exclusive Technical and Consulting Service
Agreement entered into by and between Lei Ting Company and Party A on
September 26, 2003.
1.6 Event of Default means any event listed as under Article 7 hereunder.
1.7 Notice of Default means the notice of default issued by Party A in
accordance with this Agreement.
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2. Assignment And Pledge
2.1 Party C hereby agrees to assign all of its pledge over the 80% equity
interest in Lei Ting Company under the Original Pledge Agreement to
Party A and Party A hereby agrees to accept the pledge aforesaid.
Party B also agrees to assign the pledge over the same which was
originally pledged to Party C, to Party A (namely, Party B agrees to
pledge all its equity interest in Lei Ting Company to Party A) as a
security for Party A's collecting technical and consulting service
fees under the Service Agreement.
2.2 Pledge under this Agreement refers to the rights owned by Party A who
shall be entitled to have priority in receiving payment by the
evaluation or proceeds from the auction or sale of the equity
interests pledged by Party B to Party A.
3. Rate Of Pledge And Term Of Pledge
3.1 The rate of Pledge
3.1.1 The rate of pledge shall be 100%.
3.2 The term of Pledge
3.2.1 Pledge Contract shall take effect as of the date when the
equity interests under this Agreement are recorded in the
Register of Shareholder of Lei Ting Company and registered with
the competent Administration for Industry and Commerce. The
term of the Pledge is the same with the term of Service
Agreement.
3.2.2 During the Pledge term, Party B shall be entitled to dispose
the Pledge in accordance with this Agreement in the event that
Party A fails to pay exclusive technical and consulting service
fee in accordance with the Service Agreement.
4. Physical Possession Of Documents
4.1 During the term of Pledge under this Agreement, Party B shall deliver
the physical possession of the Certificate of Distribution and the
Name List of Shareholder of Lei Ting Company to Party A within one
week as of the date of conclusion of this Agreement.
4.2 Party A shall be entitled to collect the dividends from the equity
interests.
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5. Warranties and Representation of Party B
5.1 Party B is the legal owner of the equity interests.
5.2 Party A shall not be interfered by any other Party A at any time once
Party exercises the rights of Party A in accordance with this
Agreement.
5.3 Without prejudice to Party C's Equity Interest Purchase Right, Party A
shall be entitled to dispose or assign the pledge in accordance with
this Agreement.
5.4 Party B does not pledge or encumber the equity interests to any other
person except for Party A and Party C.
6. Covenant Of Party B
6.1 During the effective term of this Agreement, Party B covenants to
Party A and Party C that Party B shall:
6.1.1 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 Party A without prior written consent
from Party A and Party C;
6.1.2 not grant to any third party its or the similar rights in Lei
Ting Company, except as such share option may be granted to
Party C. Such granting to any third Party other than Party C by
Party B shall not be valid or binding;
6.1.3 comply with and implement laws and regulations with respect to
the pledge of rights, present to Party A any notices, orders or
suggestions with respect to the Pledge issued or made by the
competent administration authority within five days upon
receiving such notices, orders or suggestions and comply with
such notices, orders or suggestions, or present objection and
opposite statement to the foregoing matters Upon Party A's
reasonable request of or consent.
6.1.4 timely notify Party A of any events or any notices which may
affect Party B's equity interest or any part of its right, and
which may change Party B's any covenant and obligation under
this Agreement or which may affect Party B's performance of its
obligations under this Agreement.
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6.2 Party B agrees that Party A's right of exercising the Pledge obtained
from this Agreement shall not be suspended or hampered through legal
procedure by Party B or any successors of Party B or any person
authorized by Party B or any other person.
6.3 Party B warrants to Party A and Party C that in order to protect or
perfect the security over the payment of the technical and consulting
service fees under the Service Agreement, Party B 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
Party A and facilitate the exercise of the rights and authorization
vested in Party A under this Agreement, and execute all the documents
with respect to the changes of certificate of equity interests Party A
or the person(natural person or legal entity) designed by Party A, and
provides all the notices, orders and decisions regarded as necessary
by Party A with Party A within the reasonable time.
6.4 Party B warrants to Party A that Party B will comply with and perform
all the guarantees, covenants, agreements, representations and
conditions for the benefits of Party A. Party B shall compensate all
the losses suffered by Party A for the reasons that Party B does not
perform or fully perform their guarantees, covenants, agreements,
representations and conditions.
7. Event Of Default
7.1 The following events shall be regarded as the event of default:
7.1.1 Lei Ting Company fails to make full payment of the exclusive
technical consulting and service fees as scheduled under the
Service Agreement;
7.1.2 Party B makes any material misleading or fraudulent
representations or warranties under Article 5 herein, and/or
Party B is in violation of any warranties under Article 5
herein;
7.1.3 Party B violates the covenants under Article 6 herein;
7.1.4 Party B violates any terms and conditions herein;
7.1.5 Party B waives the pledged equity interests or transfers or
assigns the pledged equity interests without prior written
consent from Party A, except as provided in Article 6.1.1;
7.1.6 Party B's any external loan, security, compensation, covenants
or
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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 Party A to deem that Party B's capacity to perform the
obligations herein is affected;
7.1.7 Party B is incapable of repaying the general debt or other
debt;
7.1.8 This Agreement becomes illegal for the reason of the
promulgation of the related laws or Party B becomes incapable
of continuing to perform the obligations herein;
7.1.9 Any approval, permit, license or authorization from the
competent authority of the government necessary to perform this
Agreement or validate this Agreement is withdrawn, suspended,
invalidated or materially amended;
7.1.10 The property of Party B is adversely changed and cause Party A
deem that the capability of Party B to perform the obligations
herein is affected;
7.1.11 The successors or assignees of Party B are only capable to
perform a portion of or refuse to perform the payment liability
under the Service Agreement;
7.1.12 Other circumstances whereby Party A is incapable of exercising
the right to dispose the Pledge in accordance with the related
laws.
7.2 Party B shall immediately give a written notice to Party A if Party B
comes to the truth that any event under Article 7.1 herein or any
events that may result in the foregoing events have happened or is
going on.
7.3 Unless the event of default under Article 7.1 herein has been solved
to Party A's satisfaction, Party A, at any time when the event of
default happens or thereafter, may give a written notice of default to
Party B and require Party B to promptly make full payment of the
outstanding service fees under the Service Agreement and other
payables or dispose the Pledge in accordance with Article 8 herein.
8. Exercise of The Right of The Pledge
8.1 Party B shall not transfer or assign the pledge without prior written
approval from Party A prior to the full repayment of the consulting
and service fee under the Service Agreement.
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8.2 Party A shall give a notice of default to Party B when Party A
exercises the right of pledge.
8.3 Subject to Article 7.3, Party A may exercise the right to dispose the
Pledge at any time when Party A gives a notice of default in
accordance with Article 7.3 or thereafter.
8.4 Party A 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 consulting and service fees and all other
payables under the Service Agreement are repaid.
8.5 Party B shall not hinder Party A from disposing the Pledge in
accordance with this Agreement and shall give necessary assistance so
that Party A could realize his Pledge.
9. Transfer Or Assignment
9.1 Party B shall not donate or transfer his rights and obligations herein
without prior consent from Party A.
9.2 This Agreement shall be binding upon Party B and his successors and be
effective to Party A and each of his successor and assignee.
9.3 Party A may transfer or assign his all or any rights and obligations
under the Service Agreement to any individual (natural person or legal
entity) at any time. In this case, the assignee shall enjoy and
undertake the same rights and obligations herein of Party A as if the
assignee is a party hereto. When Party A transfers or assigns the
rights and obligations under the Service Agreement, at the request of
Party A, Party B shall execute the relevant agreements and/or
documents with respect to such transfer or assignment.
9.4 After Party A's change resulting from the transfer or assignment, the
new parties to the pledge shall reexecute a pledge contract.
10. Termination
This Agreement shall not be terminated until the consulting and service fees
under the Service Agreement are paid off and the Lei Ting Company will not
undertake any obligations under the Service Agreement any more, and Party A
shall cancel or terminate this Agreement within reasonable time as soon as
practicable.
11. Formalities Fees And Other Charges
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11.1 Party B 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
Party A pays the relevant taxes in accordance with the laws, Party B
shall fully indemnify such taxes paid by Party A.
11.2 Party B 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 Party B for the reason that
(1) Party B fails to pay any payable taxes, fees or charges in
accordance with this Agreement; or (2) Party A has recourse to any
foregoing taxes, charges or fees by any means for other reasons.
12. Force Majeure
12.1 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, typhoon, 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.
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.
12.2 Party affected by Force Majeure shall not assume any liability under
this Agreement. However, subject to Party affected by Force Majeure
having taken its reasonable and practicable efforts to perform this
Agreement, 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.
13. Dispute Resolution
13.1 This Agreement shall be governed by and construed in accordance with
the
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PRC law.
13.2 The parties shall strive to settle any dispute arising from the
interpretation or performance, or in connection with this Agreement
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.
14. Notice
14.1 Any notice which is given by the parties hereto for the purpose of
performing the rights, duties and obligations hereunder shall be in
writing. Where such notice is delivered personally, the time of notice
is the time when such notice actually reaches the addressee; where
such notice is transmitted by telex or facsimile, the notice time is
the time when such notice is transmitted. If such notice does not
reach the addressee on business date or reaches the addressee after
the business time, the next business day following such day is the
date of notice. The delivery place is the address first written above
of the parties hereto or the address advised in writing including
facsimile and telex from time to time.
15. Appendices
15.1 The appendices to this Agreement are entire and integral part of this
Agreement.
16. Effectiveness
16.1 This agreement and any amendments, modification, supplements,
additions or changes hereto shall be in writing and come into effect
upon being executed and sealed by the parties hereto.
16.2 Equity Interest Pledge Agreement entered into by and between Party B
and Party C as of August 8, 2002 shall be terminated upon this
Agreement coming into effect.
16.3 This Agreement is written in Chinese and is executed in three
counterparts.
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Party A: Beijing Super Channel Network Limited
Authorized Representative:___________________
Party B: Wang Xxx Xxxx
_________________(Signature)
Party C: LAHIJI VALE LIMITED
Authorized Representative:____________________
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EXHIBIT A
1. Register of Shareholders of Beijing Lei Ting Wan Jun Network Technology
Ltd.
2. Certificate of Capital Contribution of Beijing Lei Ting Wan Jun Network
Technology Ltd.
3. Exclusive Technical and Consulting Services Agreement
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