EXHIBIT 4.26
EQUITY INTERESTS PLEDGE AGREEMENT
This Equity Interests Pledge Agreement (the "Agreement") is entered into on the
day of 25 August, 2004 by and between the following parties:
Pledgee: Shanghai Huitong Information Co., Ltd.
Address: Xx.00, Xxxxxxx Xxxx Xxxx, Xxxxxxx Xxxxxxxx, Xxxxxxxx
Pledgor: Xxxx Xxxx
Identity Code: 310107780209404
Address: Xxxx 000, Xx. 00, Xxxx 000, Xxxxxx Xxxx, Xxxxxxxx
WHEREAS,
1. Xxxx Xxxx, the Pledgor, is the citizen of the People's Republic of China
("PRC"). The Pledgor owns 50% of the equity interest in Shanghai Unilink
Computer Co., Ltd. ("Shanghai Unilink") is a limited liability company
registered in Shanghai carrying on value added telecommunication business.
2. The Pledgee, a wholly foreign-owned company registered in Shanghai, PRC, has
been licensed by the PRC relevant government authority to carry on the business
of Internet technical service. The Pledgee and the Pledgor-owned Shanghai
Unilink Computer Co., Ltd enter into Exclusive Technical Consulting and Services
Agreement (the " Service Agreement").
3. In order to make sure that the Pledgee collect technical service fees as
normal from Shanghai Unilink , the Pledgor is willing to pledge all its equity
interest in Shanghai Unilink to the Pledgee as a security for the Pledgee to
collect technical consulting and service fees under the Service Agreement.
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:
1. Definitions and Interpretations
Unless otherwise provided in this Agreement, the following terms shall have the
following meanings:
1.1 Pledge means the full content of Article 2 hereunder
1.2 Equity Interest means all its 50% equity interests in Shanghai Unilink
legally held by the Pledgor.
1.3 Rate of Pledge means the ratio between the value of the pledge under
this Agreement and the exclusive technical consulting and 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 Consulting and Service
Agreement entered into by and between Shanghai Unilink and the Pledgee.
1.6 Event of Default means any event in accordance with Article 7
hereunder.
1.7 Notice of Default means the notice of default issued by the Pledgee in
accordance with this Agreement.
2. Assignment and Pledge
2.1 The Pledgor agrees to pledge all its equity interest in Shanghai
Unilink to the Pledgee as guarantee for the technical consulting service fee
payable to the Pledgee under the Service Agreement.
2.2 Pledge under this Agreement refers to the rights owned by the Pledgee
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 the Pledgor
to the Pledgee.
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 The Pledge shall take effect as of the date when the equity
interests under this Agreement are recorded in the Register of Shareholder of
Shanghai Unilink 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, the Pledgor shall be entitled to dispose
the Pledge in accordance with this Agreement in the event that Shanghai Unilink
fails to pay exclusive technical Consulting and service fee in accordance with
the Service Agreement.
4. Physical Possession of Documents
4.1 During the term of Pledge under this Agreement, the Pledgor shall
deliver the physical possession of the Certificate of Distribution and the Name
List of Shareholder of Shanghai Unilink to the Pledgee within one week as of the
date of conclusion of this Agreement.
4.2 The Pledgee shall be entitled to collect the dividends from the equity
interests.
5. Warranties and Representations of the Pledgor
5.1 The Pledgor is the legal owner of the equity interests.
5.2 The Pledgee shall not be interfered by any parties at any time when
the Pledgee exercises its rights in accordance with this Agreement.
5.3 The Pledgee shall be entitled to dispose or assign the pledge in
accordance with this Agreement.
5.4 The Pledgor does not pledge or encumber the equity interests to any
other person except for the Pledgee.
6. Covenant of the Pledgor
6.1 During the effective term of this Agreement, the Pledgor covenants to
the Pledgee that the Pledgor shall:
6.1.1 Except the transfer of equity interest, as subject to the
Exclusive Purchase Right Contract entered into among the Pledgor, Linktone Ltd
and Shanghai Unilink, to Linktone Ltd or the person designated by Linktone Ltd,
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;
6.1.2 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 comply with such
notices, orders or suggestions, or object to the foregoing matters at the
reasonable request of the Pledgee or with consent from the Pledgee.
6.1.3 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.
6.2 The Pledgor agrees that the Pledgee's right of exercising the Pledge
obtained from this Agreement shall not be suspended or hampered through legal
procedure by the Pledgor or any successors of the Pledgor or any person
authorized by the Pledgor or any other person.
6.3 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 the person (natural person or legal entity)
designed by the Pledgee, and provides all the notices, orders and decisions
regarded as necessary by the Pledgee with the Pledgee within the reasonable
time.
6.4 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 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.
7. Events of Default
7.1 The following events shall be regarded as the event of default:
7.1.1 Shanghai Unilink fails to make full payment of the exclusive
technical consulting and service fees as scheduled under the Service Agreement;
7.1.2 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;
7.1.3 The Pledgor violates the covenants under Article 6 herein;
7.1.4 The Pledgor violates any terms and conditions herein;
7.1.5 The Pledgor waives the pledged equity interests or transfers
or assigns the pledged equity interests without prior written consent of the
Pledgee, except as provided in Article 6.1.1 in this Agreement;
7.1.6 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;
7.1.7 The Pledgor is incapable of repaying the general debt or other
debt;
7.1.8 This Agreement is illegal for the reason of the promulgation
of the related laws or the Pledgor's incapability of continuing to perform the
obligations herein;
7.1.9 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;
7.1.10 The property of the Pledgor is adversely changed and cause
the Pledgee deem that the capability of the Pledgor to perform the obligations
herein is affected;
7.1.11 The successors or assignees of the Shanghai Unilink are only
entitled to perform a portion of or refuse to perform the payment liability
under the Service Agreement;
7.1.12 Other circumstances whereby the Pledgee is incapable of
exercising the right to dispose the Pledge in accordance with the related laws.
7.2 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.
7.3 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 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 The Pledgor shall not transfer or assign the pledge without prior
written approval from the Pledgee prior to the full repayment of the consulting
and service fee under the Service Agreement.
8.2 The Pledgee shall give a notice of default to the Pledgor when the
Pledgee exercises the right of pledge.
8.3 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.
8.4 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 consulting and service fees and all other payables under the Service
Agreement are repaid.
8.5 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.
9. Transfer or Assignment
9.1 The Pledgor shall not donate or transfer his rights and obligations
herein without prior consent from the Pledgee.
9.2 This Agreement shall be binding upon the Pledgor and his successors
and be effective to the Pledgee and his each successor and assignee.
9.3 The Pledgee 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 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.
9.4 After the Pledgee's change resulting from the transfer or assignment,
the new parties to the pledge shall execute 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 Shanghai Unilink 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.
11. Formalities Fees And Other Charges
11.1 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.
11.2 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.
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.
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.
12.2 The party 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.
13. Dispute Resolution
13.1 This Agreement shall be governed by and construed in accordance with
the 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 Shanghai. 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 This Agreement is executed in English and Chinese forms in 2 copies.
(No text on this page)
The Pledgee: Shanghai Huitong Information Co., Ltd. (Seal)
Authorized Representative:
The Pledgor: Xxxx Xxxx
Signature: /s/ Xxxx Xxxx
EXHIBIT A
1. Register of Shareholders of Shanghai Unilink Computer Co., Ltd.
2. Certificate of Capital Contribution of Shanghai Unilink Computer Co., Ltd.
3. Exclusive Technical Consulting and Services Agreement
