EXHIBIT 10.28
CONTRACT RELATING TO THE EXCLUSIVE PURCHASE RIGHT OF
EQUITY INTEREST
AMONG
LINKTONE LTD.
AND
DU MINSHENG
AND
SHANGHAI UNILINK COMPUTER CO., LTD.
DATED AS OF NOVEMBER 27, 2003
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CONTRACT RELATING TO
THE EXCLUSIVE PURCHASE RIGHT OF AN EQUITY INTEREST
Contract Relating to the Exclusive Purchase Right of An Equity Interest, dated
as of 27 November, 2003 (this "Contract"), among:
(1) Linktone Ltd. (the "Lender"),a limited company established and
registered in Cayman island, with the address at Cayman islands in
British West Indies
(2) Du Minsheng Resident of the People's Republic of China (the "PRC"),
holding the Identification Card of the PRC (No.: 53010319711010061),
with the address at Room ▇▇▇, ▇▇.▇▇, ▇▇▇▇ ▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ (the
"Party B");
(3) Shanghai Unilink Computer Co., Ltd., a limited liability company
organized and existing under the laws of the PRC, with the legal
registration address at Room ▇▇▇, ▇▇.▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
, ▇▇▇▇▇▇▇▇ (the Party "C").
As used in this Contract, Party A, Party B, and Party C is "the Party"
respectively, and "Parties to the Contract" in all.
WHEREAS,
1. Party B has the ownership of 5% equity interest in Party C.
2. A loan agreement was entered into Party A and Party B
3. Party C and Shanghai Huitong Information Co., Ltd., a 100% owned
subsidiary company of Party A, entered into a series of contracts such
as Exclusive Technical Consulting and Services Agreement Contracts.
NOW, THEREFORE, the parties to this Contract hereby agree as follows:
1. Purchase and Sale of Equity Interest
Section 1.1 Authorization
Party B hereby irrevocably delivers to Party A, under the laws of the
PRC, an irrevocable sole authority ("Purchase Right of Equity Interest") of,
following the steps decided by Party A, and the price specified in Section 1.3
of this Contract, purchasing by Party A or by one or more persons designated by
Party A (the "Designated Persons") at any time from Party B of its all or part
of the equity interest of Party C. Besides Party A and the Designated Persons,
any third party does not have such Purchase Right
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of Equity Interest. Party C hereby agrees the delivery of Purchase Right of
Equity Interest from Party B to Party A. As specified in this Section and this
Contract, the "person" has the meaning of Person, Corporation, Joint Venture,
Partnership, Enterprise, Trust or Non-Corporation Organization.
Section 1.2 Steps
The performance of Purchase Right of Equity Interest of Party A shall
be upon and subject to the laws and regulations of PRC. Party A shall send a
written notice (the "Notice of Purchase of Equity Interest") to Party B upon its
performance of Purchase Right of Equity Interest, the Notice of Purchase of
Equity Interest shall have in it the following contents:
(a) Party A's decision of the performance of purchase right;
(b) The Equity Interest prospected to be purchased by Party A from
Party B (the "Purchased Equity Interest");
(c) Purchase Date/Equity Interest Transferring Date.
Section 1.3 Purchase Price
Except as requested by law to evaluate, the price of the
Purchased Equity Interest ("Purchase Price") shall be an equivalent of
the actual amount of the Purchased Equity Interest contributed by Party
B.
Section 1.4 Transfer of the Purchased Equity Interest
Every time upon Party A's performance of the Purchase Right of Equity Interest:
(a) Party B shall supervise and urge Party C to convene the shareholders
meeting, and during the meeting, to pass the decision or resolution to
transfer the equity interest from Party B to Party A and/or the Designated
Persons;
(b) Party B shall, upon the terms and conditions of this Contract and the Notice
of Purchase of Equity Interest, enter into Equity Interest Transfer Contract
with Party A (or, in applicable situation, the Designated Persons);
(c) The related parties shall execute all other requisite contracts, agreements
or documents, acquire all requisite approval and consent of the government,
and, without any security interest, perform all requisite action to transfer
the valid ownership of the Purchased Equity Interest to Party A and/or the
Designated Person, and to cause Party A and/or the Designated Person to be
the registered owner of the Purchased Equity Interest. For this Section and
this Contract, "Security Interest" has the meaning of security, mortgage,
right or interest of the third party, any purchase right of equity interest,
right of acquisition, prior purchase right, right of set-off,
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ownership detainment or other security arrangements. To further define the
meaning, it does not include any security interest subject to this Contract
or the equity interest pledge contract of Party B. As described in this
Section and this Contract, "the Equity Interest Pledge Contract of Party B"
has the meaning of the Equity Interest Pledge Contract entered into by
Shanghai Huitong Information ▇▇.▇▇▇ and Party B dated as of the execution
date of this Contract. According to the said Contract, to secure Party C to
perform the obligations subject to the Exclusive Technology Consulting and
Service Agreement entered into between Party C and Shanghai Huitong
Information Co., Ltd, Party B pledges all its equity interest in Party C to
Shanghai Huitong Information Co., Ltd.
Section 1.5 Payment
Whereas contemplated in the Loan Contract, any proceeds gained by Party B from
the transfer of its equity interest in Party C shall be used, according to the
Loan Contract, as the payment to its loan borrowed from Party A. Therefore, upon
the performance of the Purchase Right of Equity Interest by Party A, the
Purchase Price shall be used as the payment from Party B to Party A subject to
the loan. Party A does not need pay the Purchase Price to Party B anymore.
2. Promises Relating Equity Interest
Section 2.1 Promises Relating Party C
Party C hereby promises:
(a) Without prior written consent by Party A or Shanghai Huitong Information
Co., Ltd, Party A's Affiliate in PRC, not, in any form, to complement,
change or renew the Articles of the Association of Party C, to increase or
decrease registered capital of the corporation, or to change the structure
of the registered capital in any other forms;
(b) Following kind finance and business standard and tradition, to maintain the
exist of the corporation, prudently and effectively operate business and
process affairs;
(c) Without prior written consent by Party A or Shanghai Huitong Information
Co., Ltd, Party A's Affiliate in PRC, not, dated from the execution date of
this Contract, to sale, transfer, mortgage or dispose in any other form any
assets, legitimate or beneficial interest of business or income of Party C,
or to approve any other security interest set on it;
(d) Without prior written notice by Party A, no debt shall take place, be
inherited, be guaranteed, or be allowed to exist, with the exception of: (i)
debt from normal or daily business but not from borrowing; (ii) debt having
been disclosed to Party A or having gained written consent from Party A;
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(e) To normally operate all business to maintain the asset value of Party C,
without doing or otherwise any action that sufficiently affects the
operation and asset value;
(f) Without prior written consent by Party A or Shanghai Huitong Information
Co., Ltd, Party A's Affiliate in PRC, not to enter into any material
contract, with the exception of the contract entered into during the normal
business ( As in this paragraph, a contract with a value more than a hundred
thousand Yuan (RMB 100,000) shall be seemed as a material contract);
(g) Without prior written consent by Party A or Shanghai Huitong Information
Co., Ltd, Party A's Affiliate in PRC, not to provide loan or credit loan to
anyone;
(h) Upon the request of Party A, to provide all operation and finance materials
relevant to Party C;
(i) Party C purchases and holds all along insurance from the insurance company
accepted by Party A, the insurance amount and category shall be the same
with those held by the companies in the same area, operating the similar
business and owning the similar properties and assets;
(j) Without prior written consent by Party A or Shanghai Huitong Information
Co., Ltd, Party A's Affiliate in PRC, not to merger or associate with any
person, or purchase any Person or invest in any Person;
(k) To notify Party A the occurrence or the probable occurrence of the
litigation, arbitration or administrative procedure related to the assets,
business and income of Party C;
(l) In order to keep the ownership of Party C to all its assets, to execute all
requisite or appropriate documents, do all requisite or appropriate action,
and advance all requisite or appropriate accusation, or make requisite or
appropriate plea for all claims;
(m) Without prior written notice by Party A, not to assign stock interests to
shareholders in any form, but upon the request of Party A, to assign all its
assignable profits to their own shareholders;
(n) Upon the request of Shanghai Huitong Information Co., Ltd., Party A's
Affiliate in PRC, to commission any person designated by Shanghai Huitong
Information Co., Ltd. to be the member of the Board of Directors of Party C;
and
Section 2.2 Promises Relating Party B
Party B promises:
(a) Without prior written consent by Party A or Shanghai Huitong Information
Co., Ltd., Party A's Affiliate in PRC, not, dated from the execution date of
this Contract, to sale, transfer, mortgage or dispose in any other form any
legitimate or beneficial interest of equity interest, or to approve any
other security interest set on it, with the exception of the pledge set on
the equity interest of Party B subject to Equity Interest Pledge
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Contract of Party B;
(b) To cause the Board of Shareholders commissioned by it not to approve to,
with no prior written notice by Party A or Shanghai Huitong Information Co.,
Ltd., Party A's Affiliate in PRC, and dated from the execution date of this
Contract, sale, transfer, mortgage or dispose in any other form any
legitimate or beneficial interest of equity interest, or to approve any
other security interest set on it, with the exception of the pledge set on
the equity interest of Party B subject to Equity Interest Pledge Agreement
of Party B;
(c) To cause the Board of Shareholders commissioned by it not to approve Party C
to, with no prior written notice by Party A or Shanghai Huitong Information
▇▇.▇▇▇, Party A's Affiliate in PRC, merger or associate with any person, or
purchase any person or invest in any person;
(d) To notify Party A the occurrence or the probable occurrence of the
litigation, arbitration or administrative procedure related to the equity
interest owned by it;
(e) To cause the Board of Shareholders commissioned by it to vote to approve the
transfer of the Purchased Equity Interest subject to this Contract;
(f) In order to keep its ownership of the equity interest, to execute all
requisite or appropriate documents, do all requisite or appropriate action,
and advance all requisite or appropriate accusation, or make requisite or
appropriate plea for all claims;
(g) Upon the request of Shanghai Huitong Information Co., Ltd., Party A's
Affiliate in PRC, to commission any person designated by Shanghai Huitong
Information Co., Ltd. to be the member of the Board of Directors of Party C;
(h) Upon the request of Party A at any time, to immediately transfer its equity
interest to the representative designated by Party A unconditionally and at
any time, and abandon its prior purchase right of such equity interest
transferring to another available shareholder;
(i) To prudently comply with the terms and conditions of this Contract and other
contracts entered into totally or respectively by Party B, Party C and Party
A and Shanghai Huitong Information Co., Ltd., to actually perform all
obligations under these contracts, without doing or otherwise any action
that sufficiently affects the validity and enforceability of these
contracts;
3. Representations and Warranties
Representations and Warranties of Party B and Party C
Dated as of the execution date of this Contract and every transferring date,
Party B and Party C hereby represents and warrants together and respectively to
Party A as follows:
(a) It has the power and ability to enter into and deliver this Contract, and
any equity
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interest transferring contract ("Transferring Contract", respectively)
having it as a party, for every single transfer of the purchased equity
interest according to this Contract, and to perform its obligations under
this Contract and any Transferring Contract. Upon execution, this Contract
and the Transferring Contracts having it as a party constitute a legal,
valid and binding obligation of it enforceable against it in accordance with
its terms;
(b) The execution, delivery of this Contract and any Transferring Contract and
performance of the obligations under this Contract and any Transferring
Contract do not: (i) cause to violate any relevant laws of PRC; (ii)
constitute a conflict with its Articles of Association or other
organizational documents; (iii) cause to breach any contract or instruments
to which it is a party or having binding obligation on it, or cause to
breach any contract or instruments to which it is a party or having binding
obligation on it; (iv) cause to violate relevant authorization of any
consent or approval to it and/or any continuing valid condition; or (v)
cause any consent or approval authorized to it to be suspended, removed, or
into which other requests be added;
(c) Party C bears sellable ownership of all assets. Party C does not set any
security interest on the said assets;
(d) Party C does not have any undischarged debt, with the exception of (i) debt
from its normal business; and (ii) debt having been disclosed to Party A and
having gained written consent from Party A;
(e) Party C abides by all laws and regulations applicable to the purchase of
assets;
(f) No litigation, arbitration or administrative procedure relating to equity
interest, assets of Party C or the corporation is underway or to be decided
or to probably take place;
4. Effective Date
This Contract shall be effectively dated from the execution date, with
the term of effect as 10 years, and can be extended to another 10 years
by the choice of Party A.
5. Applicable Law and Dispute Resolution
Section 5.1 Applicable Law
The execution, validity, construing and performance of this Contract, and
resolution of the disputes under this Contract, shall be in accordance with the
laws of PRC.
Section 5.2 Dispute Resolution
Any dispute arising from the construing and performance of this Contract shall
be settled through friendly consultation between the parties of this Contract.
If no settlement can be reached through such consultation within thirty (30)
days after the date of the written
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notice sent by one party to the other requesting to settle the dispute, then
each of the parties shall have the right to refer the matter to China
International Economic and Trade Arbitration Commission, for settlement by
arbitration according to the its valid arbitration rules at the appointed time.
The arbitration shall take place in Shanghai. The arbitration result is final,
and is binding to both parties of this Contract.
6. Taxes and Expenses
Every party shall, according to laws of PRC, bear any and all transferring and
registering taxes, costs and expenses for the preparation and execution of this
Contract and all Transferring Contracts, and those arising from or imposed on
the party, to complete the transactions of this Contract and all Transferring
Contracts.
7. Notices
This Contract requests that notices or other communications sent by any party or
corporation shall be written in Chinese, and be delivered in person, by mail or
telecopy to other parties at the following addresses or other specified
addresses noticed by other parties to the party. The date deemed to be duly
given or made shall be confirmed as follows: (a) for notices delivered in
person, the date of delivery shall be deemed as having been duly given or made;
(b) for notices delivered by mail, the tenth day of the delivery date of air
certified mail with postage prepaid (as shown on stamp) shall be deemed as
having been duly given or made; and (c) for notices by telecopy, the receipt
date showed on the delivery confirming paper of the relevant document shall be
deemed as having been duly given or made.
Party A: Linktone Ltd.
Address: Cayman islands, British West Indies
Party B:Du Minsheng
Address: Room ▇▇▇, ▇▇.▇▇, ▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇
Party C: Shanghai Unilink Computer Co., Ltd.
Address: Room ▇▇▇, ▇▇.▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ , ▇▇▇▇▇▇▇▇
8. Confidentiality
The parties admit and confirm any oral or written materials exchanged by the
parties relating to this Contract are confidential. The Parties shall maintain
the secrecy and confidentiality of all such materials. Without written approval
by the other party, the party shall not disclose to any third party any relevant
materials, but with the exception of
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the following: (a) the public know or may know such materials (but not disclosed
by the party accepting the materials); (b) materials needed to be disclosed
subject to ordinance or listing rules or precedents of the united transaction
firm; or (c) any party necessarily discloses materials to its legal or financial
consultant relating the transaction of this Contract, and this legal or
financial consultant shall have the obligation of confidentiality similar to
that set forth in this Section. The breach of the obligation of confidentiality
by staff or employed institution of any party shall be deemed as the breach of
such obligation by that party, and by whom the liabilities for breach shall be
bored. No matter this Contract may terminate by any reason, this Section shall
continue in force and effect.
9. Further Warranties
The Parties to the Contract agree to promptly execute documents reasonably
requisite to the performance of the provisions and the aim of this Contract or
documents beneficial to it, and to take actions reasonably requisite to the
performance of the provisions and the aim of this Contractor actions beneficial
to it.
10. Miscellaneous
Section 10.1 Amendment, Modification and Supplement
Upon amendment, modification and supplement of this Contract shall be subject to
the written agreement executed by each party.
Section 10.2 Observance of Laws and Regulations
The parties of the contract shall observe and make sure the operation of each
party fully observe all laws and regulations of PRC officially published and
publicly gainable.
Section 10.3 Entire Contract
Except the written amendment, supplement and modification of this Contract
following the date of execution, this contract and attachments 1 constitute the
entire contract of the parties hereto with respect to the object hereof and
supersedes all prior oral or written agreements, representation and contracts
with respect to the object hereof.
Section 10.4 Headings
The headings contained in this Contract are for convenience of reference only
and shall not affect the interpretation, explanation or in any other way the
meaning of the provisions of this Contract.
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Section 10.5 Language
This Agreement is executed by Chinese and English in three copies, and in case
of confliction, the Chinese version is prevail..
Section 10.6 Separability
If any one or more provisions of this Contract are judged as invalid, illegal or
non-enforceable in any way according to any laws or regulations, the validity,
legality and enforceability of other provisions hereof shall not be affected or
impaired in any way. All parties shall, through sincere consultation, urge to
replace those invalid, illegal or non-enforceable provisions with valid ones,
and from such valid provisions, similar economic effects shall be tried to reach
as from those invalid, illegal or non-enforceable provisions.
Section 10.7 Successor
This Contract shall bind and benefit the successor of each party and the
transferee allowed by each party.
Section 10.8 Survival
(a) Any obligation taking place or at term hereof prior to the end or
termination ahead of the end of this Contract shall continue in force and
effect notwithstanding the occurrence of the end or termination ahead of the
end of the Contract.
(b) Section 5, Section 7 and Section 8 hereof shall continue in force and effect
after the termination of this Contract.
Section 10.9 Waiver
Any party to this Contract may waive the terms and conditions of this Contract.
Such waiver shall be valid only if set forth in an instrument in writing signed
by the party or parties to be bound thereby. Any waiver by a party to the breach
hereof by other parties in certain situation shall not be construed as a waiver
to any similar breach by other parties in other situation.
IN WITNESS THEREFORE, the parties hereof have caused this Contract to be
executed by their duly authorized representatives as of the date first written
above.
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Party A: Linktone Ltd.
By: /s/ ▇▇▇ ▇▇
Name:
Title:
Party B: Du Minsheng (ID Card : 53010319711010061 )
By: /s/ ▇▇ ▇▇▇▇▇▇▇▇
Name:
Headership:
Party C: Shanghai Unilink Computer Co., Ltd.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
Name:
Title: