[Translation of Chinese original]
EXHIBIT 10.8
AMENDED AND RESTATED SHARE PLEDGE AGREEMENT
This Amended and Restated Share Pledge Agreement (this Agreement) is entered
into on May 10, 2004 in Beijing by and between the following parties:
PLEDGEE: KONGZHONG INFORMATION TECHNOLOGIES (BEIJING) CO., LTD.
Registered Address: 12th floor, ▇▇▇▇▇ ▇▇▇▇ Building, ▇▇▇▇▇ ▇▇▇▇ Cun South
Street, Hai ▇▇▇▇ District, Beijing
Legal Representative: ▇▇▇▇ ▇▇▇▇▇▇
And
PLEDGOR: ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ AND ▇▇▇▇ CHA
WHEREAS,
1. The Pledgor, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇ Cha, are
citizens of the People's Republic of China ("PRC", excluding Hong Kong
Special Administration District, Macao Special Administration District
and Taiwan area , for the purpose of this "Agreement"), and
respectively owns 10%, 42%, 3% and 45% equity interest in Beijing
AirInBox Information Technologies Co., Ltd.
2. Beijing AirInBox Information Technologies Co., Ltd. is a limited
liability company registered in Beijing engaging in the business of
Internet information provision services, value-added telecommunication
services, etc.
3. The Pledgee, a wholly foreign-owned company registered in Beijing,
PRC, has been licensed by the PRC relevant government authority to
carry on the business of computer software products, internet products
development, sale and services, etc. The Pledgee and the Pledgor-owned
Beijing AirInBox Information Technologies Co., Ltd. entered into
Exclusive Technical Consulting and Services Agreement, Trademark
Licensing Agreement and Domain Name Licensing Agreement on March 31,
2004.
4. In order to make sure that the Pledgee collect technical service fees
under Exclusive Technical Consulting and Services Agreement, Trademark
Licensing Agreement and Domain Name Licensing Agreement as normal from
Pledgor-owned Beijing AirInBox Information Technologies Co., Ltd., the
Pledgor are willing to severally and jointly pledge all their equity
interest in Beijing AirInBox Information Technologies Co., Ltd. to the
Pledgee as a security for the Pledgee to collect the above-mentioned
fees.
1
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
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 the 100% equity interests in Beijing
AirInBox Information Technologies Co., Ltd. legally and jointly held
by the Pledgor and all the present and future rights and benefits
based on such equity interest.
1.3 Service Agreement means the Exclusive Technical Consulting and Service
Agreement entered into by and between Beijing AirInBox Information
Technologies Co., Ltd. and the Pledgee on March 31, 2004.
1.4 Licensing Agreement means the Trademark Licensing Agreement and Domain
Name Licensing Agreement entered into by and between Beijing AirInBox
Information Technologies Co., Ltd. and the Pledgee on March 31, 2004.
1.5 Event of Default means any event in accordance with Article 7
hereunder.
1.6 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 his equity interest in Beijing
AirInBox Information Technologies Co., Ltd. to the Pledgee to ensure
the Pledgee collect the services fees under the Services Agreement
Licensing Agreement.
2.2 The Pledge under this Agreement refers to the rights owned by the
Pledgee to collect the fees (including legal fees), expenses and
losses that Beijing AirInBox Information Technologies Co., Ltd. shall
pay under the Service Agreement and Licensing Agreement, and the civil
liability that Beijing AirInBox Information Technologies Co., Ltd.
shall bear in case the Service Agreement and/or Licensing Agreement
wholly or partially nullify due to
2
any reason.
2.3 The Pledge under this Agreement refers to the prior right owned by the
Pledgee to the money gained from the conversion, auction, or sell of
the equity interests pledged by the Pledgor to the Pledgee.
2.4 The pledge under this Agreement shall be terminated only Beijing
AirInBox Information Technologies Co., Ltd. has performed all the
obligations and liabilities under the Servicing Agreement and
Licensing Agreement and the Pledgee has confirm in written form. If
Beijing AirInBox Information Technologies Co., Ltd. does not fully
perform all or part of its obligations or liabilities under the
Servicing Agreement and Licensing Agreement at the expiration of such
agreements, the Pledgee shall maintain the pledge hereunder up to the
date all such obligations and liabilities are fully performed.
3. EFFECT
3.1 This Agreement shall take effect as of the date when the equity
interests pledged are recorded in the Register of Shareholder of
Beijing AirInBox Information Technologies Co., Ltd..
3.2 The Pledgee is entitled to dispose the pledge hereunder if Beijing
AirInBox Information Technologies Co., Ltd. fails to pay the fees in
accordance with the Servicing Agreement and Licensing Agreement during
the Pledge.
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
(original) of Beijing AirInBox Information Technologies Co., Ltd. and
provide the testify of the proper record of such pledge on the
shareholders' name list of Beijing AirInBox Information Technologies
Co., Ltd. to the Pledgee within one week as of the date of conclusion
of this Agreement.
4.2 The Pledgor shall be entitled to collect the incomes (such as,
including but not limited to, any dividends and profits) from the
equity interests, which shall become the assurance for the debt of
Beijing AirInBox Information Technologies Co., Ltd., within the term
of this Agreement, except for written consent of the Pledgee.
3
5. WARRANTIES AND REPRESENTATION OF THE PLEDGOR
The Pledgor hereby makes the following representation and warranties to the
Pledgee and confirm that the Pledgee execute such Agreement in reliance of
such representation and warranties:
5.1 The Pledgor is the legal owner of the equity interests hereunder and
is entitled to create pledge on such equity interests;
5.2 The Pledgee shall not be interfered by any other pledgee at any time
once the Pledgee exercises the rights of the Pledge in accordance with
this Agreement.
5.3 The Pledgee shall be entitled to dispose or assign the pledge in
accordance with relevant laws and this Agreement.
5.4 The execution and performance of this Agreement of the Pledgor has
gained all necessary authorization and shall not violate any
applicable laws and regulations. The representative who signs this
Agreement shall be lawfully and effectively authorized.
5.5 The Pledgor shall not encumber the equity interests (including but not
limited to pledge) hereunder to any other person.
5.6 The Pledgor warrant that there is no on-going civil, administrative or
criminal litigation or administrative punishment or arbitration
related with the equity interests hereunder and have no idea about
those in future at the date of conclusion of this Agreement.
5.7 There are no outstanding taxes, fees or undecided legal procedures
related with the equity interests hereunder at the date of conclusion
of this Agreement.
5.8 Each stipulation hereunder is the expression of each Party's true
meaning and shall be binding upon all the Parties.
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 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 except transfer to the Pledgee or the person designated
4
by the Pledgee as required by 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 take actions in accordance with the
reasonable instruction of 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, take actions in accordance with the
reasonable instruction of the Pledgee.
6.2 The Pledgor agrees that the Pledgee's right of exercising the Pledge
obtained from this Agreement shall not be suspended or hampered 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 and the licensing fees under
the Licensing 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 another party designated by the Pledgee, and provides the
Pledgee with all the documents regarded as necessary to 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 for 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 EVENT OF DEFAULT
5
7.1 The following events shall be regarded as an event of default:
7.1.1 Beijing AirInBox Information Technologies Co., Ltd. or its
successor or trustee fails to make full payment of service fees
or licensing fees under the Servicing Agreement and Licensing
Agreement as scheduled there under;
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 warrants under Article 5 and the
covenants under Article 6 herein;
7.1.4 The Pledgor badly 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 from the Pledgee except otherwise agreed under Article
6.1.1 herein ;
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
any 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 to deem that the capability of the Pledgor to perform the
obligations herein is affected;
6
7.1.11 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 fees under the Service Agreement and the
Licensing 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
fees under the Service Agreement and the Licensing 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 fees under the Servicing Agreement and the
Licensing Agreement and all other payables there under 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 to
any third party herein without prior consent from the Pledgee.
9.2 This Agreement shall be binding upon the Pledgor and his successors
7
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 and/or the Licensing Agreement
to any third party 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 and/or
the Licensing 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 fees under the Service
Agreement and the Licensing Agreement are paid off and the Beijing AirInBox
Information Technologies Co., Ltd. will not undertake any obligations under the
Service Agreement and the Licensing Agreement any more, and the Pledgee shall
cancel or terminate this Agreement within reasonable time as soon as
practicable.
11 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
8
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, geographic change,
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 Pledge 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 APPLICABLE LAW AND DISPUTE RESOLUTION
13.1 The execution, validity, performance and interpretation of 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 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.
13.3 Each Party shall continue performance of this Agreement in good faith
according to the stipulations herein except the matters in dispute.
14 NOTICE
Any notice or correspondence, which is given by the Party as stipulated
hereunder, shall be in Chinese and English writing and shall be delivered
in person or by registered or prepaid mail or recognized express service,
or be transmitted by telex or facsimile to the following addresses:
9
PLEDGEE: KONGZHONG INFORMATION TECHNOLOGIES (BEIJING) CO., LTD.
Registered Address: Room 809,12 floor, Tower A, ▇▇▇ ▇▇▇ Building, ▇▇▇ ▇▇▇
Bei Jie, Xi Cheng District, Beijing
Fax: (▇▇)▇▇-▇▇▇▇▇▇▇▇
Tele: (▇▇)▇▇-▇▇▇▇▇▇▇▇
Addressee: ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇
Address: Room ▇▇▇, ▇▇.▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇, Hai ▇▇▇▇
District, Beijing
Fax:
Tele:
Addressee: ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇
Address: Room ▇▇▇, ▇▇.▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇, Hai ▇▇▇▇
District, Beijing
Fax:
Tele:
Addressee: ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
Address: Room ▇▇▇, ▇▇.▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇, Hai ▇▇▇▇
District, Beijing
Fax:
Tele:
Addressee: ▇▇▇▇ ▇▇▇▇▇
YANG CHA
Address: Room ▇▇▇, ▇▇.▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇, Hai ▇▇▇▇
District, Beijing
Fax:
Tele:
Addressee: Yang Cha
15 APPENDICES
The appendices to this Agreement are entire and integral part of this
Agreement.
16 WAIVER
The Pledgee's non-exercise or delay in exercise of any rights, remedies,
power or
10
privileges hereunder shall not be deemed as the waiver of such rights,
remedies, power or privileges. Any single or partial exercise of the
rights, remedies, power and privileges shall not exclude the Pledgee from
exercising any other rights, remedies, power and privileges. The rights,
remedies, power and privileges hereunder are accumulative and shall not
exclude the application of any other rights, remedies, power and privileges
stipulated by laws.
17 MISCELLANEOUS
17.1 Any amendments, modifications or supplements to this Agreement shall
be in writing and come into effect upon being executed and sealed by
the parties hereto.
17.2 This Agreement and all the agreements and/or documents referenced or
specifically included herein constitute the entire agreement among the
Parties in respect of the subject matter hereof and supersede all
prior oral or written agreements, contract, understanding and
correspondence among them, including the equity pledge agreement among
the Pledgee, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇ dated March 31,
2004.
17.3 In case any terms and stipulations in this Agreement is regarded as
illegal or can not be performed in accordance with the applicable law,
such terms and stipulations shall be deemed to lose effect and
enforcement within the scope governed by the applicable law, and the
rest stipulations will remain effective.
17.4 This Agreement is translated from the Chinese original and shall be
kept in seven copies.
11
(No text on this page)
PLEDGEE: KONGZHONG INFORMATION TECHNOLOGIES (BEIJING) CO., LTD.
Authorized Representative: /s/ ▇▇▇▇ ▇▇▇▇
-------------
PLEDGOR: ▇▇▇▇▇▇ ▇▇▇▇
Signature: /s/ ▇▇▇▇▇▇ ▇▇▇▇
PLEDGOR: ▇▇▇▇▇▇▇ ▇▇▇▇
Signature: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇
PLEDGOR: ▇▇▇▇ ▇▇▇▇▇
Signature: /s/ ▇▇▇▇ ▇▇▇▇▇
PLEDGOR: YANG CHA
Signature: /s/ Yang Cha
12
APPENDICES
1. Register of Shareholders of Beijing AirInBox Information Technologies Co.,
Ltd.
2. Certificate of Capital Contribution of Beijing AirInBox Information
Technologies Co., Ltd.
13