Exhibit 10.62
Equity Interests Pledge Agreement
This Equity Interests Pledge Agreement (the "Agreement") is entered into on the
day of October 1, 2004 by and between the following parties:
Pledgee: Hurray! Times Communications (Beijing) Ltd.
Registered Address:
Pledgor: Beijing Enterprise Network Technology Co., Ltd.
Address: Xxxx 000, Xxxxxxxx Xxxxxxxx,
Xx. 0 Shangdi No. 7 Street,
Haidian District, Beijing
WHEREAS,
1. Beijing Enterprise Network Technology Co., Ltd., the Pledgor, is a
limited liability company duly incorporated and validly existing under
the laws of the People's Republic of China ("PRC") with a registered
address at Xxxx 000, Xxxxxxxx Xxxxxxxx, Xx.0 Xxxxxxx Xx. 0 Xxxxxx,
Xxxxxxx Xxxxxxxx, Xxxxxxx. The Pledgor owns 99% of the equity interest
in Beijing WVAS Solutions Ltd. is a limited liability company registered
in Beijing carrying on value added telecommunication business.
2. The Pledgee, a wholly foreign-owned company registered in Beijing, PRC,
has been licensed by the PRC relevant government authority to carry on
the businesses of technological development, software production, system
integration and technological services. The Pledgee and the
Pledgor-owned Beijing WVAS Solutions Ltd. enter into Exclusive Technical
Consulting and Services Agreement (the "Service Agreement") on October
1, 2004.
3. In order to make sure that the Pledgee collect technical and consulting
service fees as normal from Beijing WVAS Solutions Ltd., the Pledgor is
willing to pledge all its equity interest in Beijing WVAS Solutions Ltd.
to the Pledgee as a security for the Pledgee to collect technical and
consulting service fees under the Service Agreement.
In order to perform the Service Agreement, 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 99% equity interests in
Beijing WVAS Solutions Ltd. legally held by the Pledgor.
1.3 Rate of Pledge means the ratio between the value of the pledge
under this Agreement and the 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 Consulting and
Service Agreement entered into by and between Beijing WVAS
Solutions Ltd. 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. Pledge
2.1 The Pledgor agrees to pledge all its equity interest in Beijing
WVAS Solutions Ltd. to the Pledgee as guarantee for the
technical and 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 of equity interests under this Agreement
shall take effect as of the date when the equity
interests under this Agreement are recorded
2
in the Register of Shareholder of Beijing WVAS Solutions
Ltd. and registered with the competent Administration
for Industry and Commerce. The term of the Pledge is the
same as the term of Service Agreement.
3.2.2 During the term of the Pledge, the Pledgor shall be
entitled to dispose of the Pledge in accordance with
this Agreement in the event that Beijing WVAS Solutions
Ltd. fails to pay technical and consulting service fee
in accordance with the Service Agreement.
4. Physical Possession of Documents
4.1 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 Except as otherwise provided hereunder, the Pledgee shall not be
interfered with any parties at any time when the Pledgee
exercises its rights in accordance with this Agreement.
5.3 Except as otherwise provided hereunder, the Pledgee shall be
entitled to dispose or assign the pledge in accordance with this
Agreement.
5.4 The Pledgor has not pledged or encumbered 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 for the transfer of equity interest by the
Pledgor, as subject to the Exclusive Purchase Right
Contract entered into among the Pledgor,
3
Hurray! Holding Co., Ltd. and Beijing WVAS Solutions
Ltd., to the person designated by Hurray! Holding Co.,
Ltd., not transfer or assign the equity interests,
create or permit to be created 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 the 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 to exercise 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.
6.3 The Pledgor warrants to the Pledgee that in order to protect or
perfect the security over the payment of the technical and
consulting 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
4
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 Beijing WVAS Solutions Ltd. fails to make full payment
of the technical and consulting service fees payable 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
representations and 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 cannot 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;
5
7.1.10 The property of the Pledgor is adversely changed and
causes the Pledgee to deem that the capability of the
Pledgor to perform the obligations herein is affected;
7.1.11 The successors or assignees of the Pledgor 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.
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 equity interests
without prior written approval from the Pledgee prior to the
full repayment of the consulting 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 technical and consulting
service fees and all other payables under the Service Agreement
are repaid.
6
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 have the right to 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 its designated party
(natural person/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 reexecute a
pledge contract.
10. Termination
This Agreement shall not be terminated until the technical and consulting
service fees under the Service Agreement are paid off and Beijing WVAS Solutions
Ltd. will no longer undertake any obligations under the Service Agreement, 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
7
any taxes, formalities fees, management fees, litigation fees,
attorney's fees, and various insurance premiums in connection
with disposition or 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, geographical change, typhoon, flood,
earthquake, tide, lightning, war, means any unforeseen events
beyond the affected 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 being effected 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,
the 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
8
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. Effectiveness
15.1 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.
15.2 This Agreement is executed in duplicate in Chinese.
9
Equity Interests Pledge Agreement
(No text on this page)
By: /s/ signed
----------------------------------------------------
The Pledgee: Hurray! Times Communications (Beijing) Ltd.
Authorized Representative:
By: /s/ signed
----------
The Pledgor: Beijing Enterprise Network Technology Co., Ltd.
Authorized Representative: Beijing Enterprise Network Technology Co., Ltd.
10
