Exhibit 4.63
English Translation
CONTRACT REGARDING EXCLUSIVE PURCHASING RIGHT
BETWEEN
LINKTONE LTD.,
▇▇▇▇ ▇▇▇,
AND
SHANGHAI LANGYI ADVERTISING CO., LTD.
Date December 14, 2007
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This Contract (hereinafter called "This Contract") is signed by the following
parties on the date December 14, 2007:
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1. Linktone Ltd., a limited liability company founded at Cayman Islands with
its registration address at: Cayman Islands, British West Indies
(hereinafter called "Party A");
2. ▇▇▇▇ ▇▇▇, a citizen of the People's Republic of China (hereinafter called
"China"), his ID number is ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇, and his address is: Suite
201, 10 ▇▇.▇ ▇▇▇-▇▇▇▇, ▇▇.▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ (hereinafter
called "Party B");
3. Shanghai Langyi Advertising Co., Ltd, a limited liability company founded
according to Chinese laws, and its registration address is: ▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇▇▇ ▇, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ (hereinafter
called "Party C");
Party A, Party B, and Party C are individually called "one party" or
collectively called "parties" herein.
WHEREAS:
1. Party B holds 10% of the shares of Party C;
2. Party A and Party B signed the Loan Contract on December 14, 2007
(hereinafter called "Loan Contract");
3. Party C and Shanghai Linktone Software Co., Ltd , a subsidiary wholly
funded by Party A in China, have signed a series of agreements including
the Contract for Exclusive Technical and Consulting Services.
NOW THEREFOR, the three parties agree as follows:
1. SHARES PURCHASING AND SELLING
GRANTING OF RIGHTS
Party B hereby grants Party A an irrevocable and exclusive right to, at
anytime and as long as Chinese laws permit, purchase from Party B or
appoint one or more persons (hereinafter called "Appointed Person") to
purchase from Party B all or some of the shares of Party C that are held by
Party B according to the right exercising steps decided by Party A and at
the price specified in Clause 1.3 hereof (hereinafter called "Shares
Purchasing Right"). No one other than Party A and the Appointed Person has
the Shares Purchasing Right. Party C hereby agrees that Party B grants the
Shares Purchasing Right to Party A. The so called "person" in this clause
and in this Contract refers to an individual, a company, a joint venture, a
partnership, an enterprise, a trust, or a non-company organization.
STEPS TO EXERCISE SUCH RIGHT
When Party A exercises its Shares Purchasing Right, it shall abide by
Chinese laws and regulations, and shall send Party B a written notice
(hereinafter called "Notice for Shares Purchase") on which the following
items shall be specified: (a) the decision of Party A to exercise its
Shares Purchasing Right; (b) the shares that Party A plans to purchase from
Party B (hereinafter called "Shares to Be Purchased"); and (c) Purchase
Date/ Date of Shares Transfer.
PURCHASE PRICE OF THE SHARES
Except where the laws otherwise require an assessment, the purchase price
of the Shares to Be Purchased shall be equal to the actual amount paid by
Party B for the Shares to Be Purchased.
TRANSFER OF THE SHARES TO BE PURCHASED
Each time when Party A exercises its Shares Purchasing Right:
(1) Party B shall demand Party C to promptly hold a shareholders meeting,
in which a resolution to authorize Party B to transfer shares to Party
A and/or the Appointed Person shall be passed.
(2) Party B shall sign a contract of shares transfer with Party A (or the
Appointed Person if applicable) according to this Contract and the
Notice for Shares Purchase.
(3) All the concerned parties shall sign all the other required contracts,
agreements, or documents, obtain all the required governmental
approvals, and take all the required actions, to, without additional
guaranteed rights and interests, transfer the effective ownership of
the Shares to Be Purchased to Party A and/or the Appointed Person and
make Party A and/or the Appointed Person the duly registered owner of
the Shares to Be Purchased. For the purposes of this Clause and this
Contract, the "guaranteed rights and interests" include guarantee,
mortgage, third-party rights or rights and interests, any shares
purchasing right, purchasing right, preemptive right, set-off right,
lien or other guarantee arrangements, however, for the avoidance of
ambiguity, it shall be pointed out that the "guaranteed rights and
interests" do not include any guaranteed right or interest rendered in
this Contract or the Share Mortgage Contract of Party B. The Share
Mortgage Contract of Party B mentioned in this Clause and this
Contract refers to the shares mortgage contract signed by Shanghai
Linktone Software Co., Ltd and Party B on the signing date of this
Contract. According to the Share Mortgage Contract, Party B will
mortgage all the shares of Party B held by Party C to Shanghai
Linktone Software Co., Ltd for guaranteeing that Party C can perform
the obligations under the Contract for Exclusive Technical and
Consulting Services signed by Party C and Shanghai Linktone
Software Co., Ltd.
PAYMENT
Whereas it has been specified in the Loan Contract that all the income of
Party B from the transfer of the shares of Party C held by Party B shall be
used to pay Party A the loan pursuant to the Loan Contract, therefore, when
Party B exercises its Shares Purchasing Right, the purchase price of the
shares shall be used to pay Party A the loan and Party A does not need to
pay Party B such purchase price of the shares.
2. WARRANTIES REGARDING SHARES
2.1 WARRANTIES OF PARTY C
Party C hereby warrants that:
(1) Without a prior written content of Party A or its Chinese subsidiary
Shanghai Linktone Software Co., Ltd, it won't add, change, or modify
the Articles of Association of Party C in any way, increase or
decrease the registered capital of Party C, or change the structure of
the registered capital of Party C by other means;
(2) It will keep its company continuously existent and carefully and
effectively operate its business according to good financial and
commercial standards and practices;
(3) Without a prior written content of Party A or its Chinese subsidiary
Shanghai Linktone Software Co., Ltd, it shall not sell, transfer,
mortgage, or dispose in other ways, any asset, or business, or lawful
or beneficial rights and interests, or set any other guaranteed rights
and interests on them after the conclusion of this Contract;
(4) Without a prior written content of Party A or its Chinese subsidiary
Shanghai Linktone Software Co., Ltd, it shall not create, succeed to,
guarantee, or allow any debt, except (i) the debt that happens in the
normal or daily operation and not through money borrowing; and (ii)
the debt that has been disclosed to Party A and approved by Party A in
written form;
(5) It will always operate all the businesses of the company normally to
ensure the asset value of Party C, and it will not affect the
operation and asset value of Party C in any way;
(6) Without a prior written content of Party A or its Chinese subsidiary
Shanghai Linktone Software Co., Ltd, it won't sign any important
contract, except those contracts signed in the normal operations (in
this Paragraph, a contract with a price more than 500,000 RMB will be
considered as an important contract);
(7) Without a prior written content of Party A or its Chinese subsidiary
Shanghai Linktone Software Co., Ltd, it won't provide any loan or
credit to any person;
(8) Upon the request of Party A, provide it with all the operational and
financial materials and documents of Party C;
(9) It has bought insurances from and always has the insurances of an
insurance company accepted by Party A, and the insurance coverage and
types kept by it shall be the same to that held by the companies of
the similar businesses and having similar asset or capital in the same
region;
(10) Without a prior written content of Party A or its Chinese subsidiary
Shanghai Linktone Software Co., Ltd, it won't merge or be united with
any person, or purchase or invest in any person;
(11) It will immediately notify Party A of any lawsuit, arbitration, or
administrative procedure that is relating to the asset, business, or
income of Party C and has happened or may possibly happen;
(12) It will sign all necessary or proper documents, take all necessary or
proper actions, raise all necessary or proper claims, or use all
necessary or proper means to answer all claims, to keep the ownership
of Party C to all its assets;
(13) Without a prior written content of Party A, it won't distribute any
share interest to any shareholder in any way, but it will distribute
all the distributable profits to all the shareholders immediately upon
the request of Party A; and
(14) Upon the request of the Chinese subsidiary of Party A Shanghai
Linktone Software Co., Ltd, it will appoint any person appointed by
Shanghai Linktone Software Co., Ltd to be the director of Party C.
2.2 WARRANTIES OF PARTY B
Party B hereby warrants that:
(1) Without a prior written content of Party A or its Chinese subsidiary
Shanghai Linktone Software Co., Ltd, it won't sell, transfer,
mortgage, or dispose in other ways, any asset, or business, or lawful
or beneficial rights and interests, or permit any other guaranteed
rights and interests set on them, after the conclusion of this
Contract, except the mortgage to be set on the shares of Party B in
accordance with the Shares Mortgage Contract of Party B;
(2) It will urge the shareholders meeting of the company appointed by it
not to approve,
without a prior written content of Party A or its Chinese subsidiary
Shanghai Linktone Software Co., Ltd, the decision of selling,
transferring, mortgaging, or disposing in other ways, any asset or
business, or lawful or beneficial rights and interests, or the
decision of permitting any other guaranteed rights and interests to be
set on them, except otherwise the mortgage set on the shares of Party
B in accordance with the Shares Mortgage Contract of Party B;
(3) It will urge the shareholders meeting of the company appointed by it
not to approve, without a prior written content of Party A or its
Chinese subsidiary Shanghai Linktone Software Co., Ltd, the decision
of merging or uniting any person, or purchasing or investing in any
person;
(4) It will immediately notify Party A of any lawsuit, arbitration, or
administrative procedure that is relating to the asset, business, or
income of Party C and has happened or may possibly happen;
(5) It will urge the shareholders meeting of the company appointed by it
to approve the transfer of the Shares to Be Purchased specified
herein;
(6) It will sign all necessary or proper documents, take all necessary or
proper actions, raise all necessary or proper claims, or use all
necessary or proper means to answer all claims, to keep the ownership
of Party C to all its assets;
(7) Upon the request of the Chinese subsidiary of Party A Shanghai
Linktone Software Co., Ltd, it will appoint any person appointed by
Shanghai Linktone Software Co., Ltd to be the director of Party C.
(8) Upon the request of Party A at any time, it will unconditionally and
immediately transfer its shares to the appointed representative by
Party A or abandon its preemptive right on the shares transferred by
another current shareholder to Party A or the appointed person by
Party A;
(9) It will strictly abide by this Contract and the other contracts
jointly or separately signed by Party B, Party C, and Party A and
Shanghai Linktone Software Co., Ltd, will earnestly perform all its
obligations under those contracts, and will not conduct any act that
may affect the validity and feasibility of those contracts.
3. REPRESENTATIONS AND WARRANTIES
Representations and warranties of Party B and Party C
After signing this Contract and upon each transfer date, Party B and Party
C hereby jointly or separately represent and undertake as follows:
(1) That they have the right and capacity to sign and deliver this
Contract and any shares transfer contract (hereinafter called
"Transfer Contract") to be signed by either of them for each transfer
of the Shares to Be Purchased in accordance with this Contract, and to
perform all the obligations under this Contract and any Transfer
Contract; once signed, this Contract and any Transfer Contract will
constitute lawful, valid, binding, and enforceable obligations;
(2) Neither the signing and delivery of this Contract and any Transfer
Contract nor the performance of any obligation under this Contract and
any Transfer Contract will: (i) cause a violation of any relevant
Chinese law; (ii) be in conflict with the Articles of Association of
their company or the other documents of their company; (iii) cause a
violation or a breach of any contract or document in which one of them
is party; (iv) cause a violation of any condition under which any
permit or approval is granted to them or remains effective; or (v)
cause the suspension or withdrawal of or any additional condition to
any permit or approval granted to them;
(3) Party B has a sound and saleable ownership to all the assets and sets
no guaranteed rights and interests on such assets;
(4) Party C does not have any unpaid debt, except: (i) the debts that
happen during the normal business operations;; and (ii) the debts that
have been disclosed to and approved by Party A;
(5) Party C will abide by all the laws and regulations applicable to the
asset purchase;
(6) Currently they don't have on-going, unsettled, or possible lawsuit,
arbitration, or administrative procedure regarding shares, the asset
of Party C, or the company.
4. EFFECTIVE DATE
This Contract will enter into force once all the parties sign it, remain
effective for 10 years, and may be renewed for another 10 years at the
discretion of Party A.
5. GOVERNING LAW AND SETTLEMENT OF DISPUTE
GOVERNING LAW
The execution, validity, interpretation, and performance of this Contract
as well as the settlement of any dispute hereunder shall be governed by
Chinese laws.
SETTLEMENT OF DISPUTE
Any dispute arising from interpretation and performance of this Contract
shall be settled by the parties hereto first through friendly negotiation.
If such dispute cannot be settled within 30 days after one party sends a
written notice of friendly settlement to another party, then any party may
submit such dispute to China International Economic and Trade Arbitration
Commission and have that Commission to arbitrate it according to its
arbitration rules effective by then in Shanghai. The arbitration award will
be final and binding to all the parties.
6. TAXES AND FEES
Each party shall be responsible for any and all the transfer and
registration taxes, expenses, and fees that happen or are imposed for the
preparation and conclusion of this Contract and all the Transfer Contracts
and the completion of the scheduled transactions under this Contract and
those Transfer Contracts according to Chinese laws.
7. NOTICE
The notices or the other communications that this Contract requires any
party or the company to send shall be made in the Chinese language and
delivered by a special person or by means of mailing or fax or other ways
at any time to the following addresses or the other addresses informed by
the sending party at any time. The date on which a notice is actually
served shall be decided in the following ways: (a) as for the notice sent
by a special person, it shall be considered have been actually served on
the same day on which the special person delivers the notice; (b) As for
the notice sent by means of mailing, it shall be considered have been
actually served on the 10th day following the date (on the postal seal) on
which the notice is sent out by a prepaid registered air mail; and (c) As
for the notice sent by means of fax, it shall be considered have been
actually served depending on the receiving time on the transmission
confirmation ▇▇▇▇.
Party A: Linktone Ltd.
Address: Cayman Islands, British West Indies
Tel:
Fax:
Party B: ▇▇ ▇▇▇
▇▇▇▇▇▇▇: ▇▇▇▇▇ ▇▇▇, ▇▇, ▇▇.▇▇▇ Lane, Qingshan Road, Minxing District,
Shanghai
Party C: Shanghai Langyi Advertising Co., Ltd.
Address: Room 201, Building ▇, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇
Fax:
Tel:
8. CONFIDENTIALITY
Each party acknowledges and confirms to the others that any oral or written
information exchanged for this Contract is confidential information. All
the parties shall keep all such information secret and may not disclose to
any third party without a prior written content of the other party, except
(a) the information is known or will be known by the public (only when not
disclosed to the public by the receiving party at its own discretion); (b)
the information required for disclosure by laws or associated transaction
rules; (c) the information that any party needs to disclose to its legal or
financial consultant for the transactions specified herein, in such case
such legal or financial consultant shall also needs to be bound to the
similar confidentiality obligations of this Article. The disclosure made by
the employees or hired organization of any party shall be considered a
disclosure made by such party, which shall be responsible for breach of
this Contract. This Article will remain effective after this Contract is
terminated for any reason.
9. FURTHER WARRANTIES
All the parties agree to promptly sign all the documents that are
reasonably required for the fulfillment of all the provisions and purposes
of this Contract or favorable to them, and agree to take further actions
that are reasonably required for the fulfillment of all the provisions and
purposes of this Contract or favorable to them.
10. MISCELLANEOUS
MODIFICATION, AMENDMENT, AND SUPPLEMENTATION
For any modification, amendment and supplementation to this Contract, all
the parties must sign a written agreement.
COMPLIANCE OF LAWS AND REGULATIONS
All the parties shall abide by and guarantee their operations to comply
with all the laws and regulations officially promulgated and publicly
available.
ENTIRE AGREEMENT
Except the modification, amendment and supplementation to this Contract
made after the conclusion of this Contract, this Contract and Appendix 1
constitute the entire contract between all the parties in respect of the
subject matter of this Contract and replace all the
previous oral or written negotiations, presentations, and agreements made
for the subject matter of this Contract.
TITLES
The titles used herein are only for the convenience of reading and shall
not be used for interpretation, specification or in the other ways to
affect the meaning of each provision hereof.
LANGUAGE
This Contract is made in Chinese and in three copies.
SEVERABILITY
In the event that one or more of the provisions hereof is determined
invalid, unenforceable, or illegal by any applicable law or regulation, the
validity, enforceability or legality of the other provisions hereof shall
not be affected or impaired for that reason on any aspect. All the parties
shall try to replace those invalid, unenforceable, or illegal ones through
good-faith negotiation with valid provisions that can produce similar
economic effect as those invalid, unenforceable, or illegal ones.
SUCCESSORS
(a) This Contract is binding and favorable to the successors of all the
parties and the assignees permitted by all the parties.
REMAINING EFFECTIVE
(a) Any obligation that happens or become due under this Contract before
the expiration or advanced termination of this Contract shall continue
to be effective after the expiration or advanced termination of this
Contract.
(b) Article 5, Article 7, and Clause 10.8 hereof shall remain effective
after the termination of this Contract.
WAIVER
Any party's waiver of the terms and conditions of this Contract must be
made in written form by such party and signed by all the three parties
hereto. The waiver of one party towards an instance of contract
noncompliance by another party shall not be deemed a waiver of such party
to similar contract noncompliance in other circumstances.
IN WITNESS WHEREOF, this Contract has been executed by the respective duly
authorized representatives of the three parties on the date on the contract
cover.
Agreed and signed by:
Party A: Linktone Ltd.
Authorized Representative: /s/ Linktone Ltd.
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Name:
Title:
Party B: ▇▇▇▇ ▇▇▇ (ID number: ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇)
Signature: /s/ ▇▇▇▇ ▇▇▇
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Name:▇▇▇▇ ▇▇▇
Party C: Shanghai Langyi Advertising Co., Ltd.
Authorized Representative: /s/ Shanghai Langyi Advertising Co., Ltd.
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Name:
Title: