EXHIBIT 4.42
SHARE PLEDGE AGREEMENT
This Share Pledge Agreement (this "Agreement") is entered into on January 26,
2006 in Beijing by and among the following parties:
Party A: ANJIAN XINGYE TECHNOLOGY (BEIJING) COMPANY LIMITED
Address: Room C709, south road No. 18, west ring of Beijing Economy
& Technology Development Area
Legal Representative:
Xinrui Network: WANG GUIJUN
Address: A17, An De Li North Street, Dongcheng District, Beijing
Party C: LI YANG
Address: No. 210 Building 397, Guang An Men Wai Avenue, Xuanwu
District Beijing
WHEREAS,
1. Party A is a wholly foreign owned company registered in the PRC.
2. Beijing Xinrui Network Technology Company Limited ("Xinrui Network")is a
limited company registered in China and licensed by relevant government
authorities to hold a Telecommunications Value-added Service Operation
Permit, which qualifies it to engage in telecommunications value-added
service.
3. Party A and Party B signed Exclusive Technical Consultation and Service
Agreement on January 28, 2006; Party A, Party B, Party C and Xinrui Network
have signed Share Disposal Agreement and Business Operation Agreement on
January 28, 2006.
4. Party B and Party C (the "Pledgor") are the shareholders of Xinrui Network
and own 51% and 49% equity interest in Xinrui Network respectively.
5. In order to guarantee that Party A collects normally technical service fees
from Xinrui Network,
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which is owned by Party B and Party C, under the Exclusive Technical
Consulting and Services Agreement, and to ensure the performance of the
Share Disposal Agreement and Business Operation Agreement, the Pledgors are
willing to severally and jointly pledge all their equity interest in Xinrui
Network to the Pledgee as a security for the performance of the obligations
under the aforesaid agreements, with Party A as the Pledgee.
Therefore, through friendly negotiations and in the principles of equality and
mutual benefit, the parties hereby enter agreement as follows.
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 100% equity interests in Xinrui Network legally and
jointly held by the Pledgors and all the present and future rights and
benefits based on such equity interest.
1.3 Reorganization Agreements mean Exclusive Technical Consultation and Service
Agreement, Share Disposition Agreement and Business Operation Agreement as
mentioned in point 3 under whereas of this Agreement.
1.4 Event of Default means any event in accordance with Article 7 hereunder.
1.5 Notice of Default means the notice of default issued by the Pledgee in
accordance with this Agreement.
2. PLEDGE
2.1 The Pledgors agree to pledge all the equity interest in Xinrui Network to
Party A as the security for Party A's rights and interest under the
reorganization agreements.
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 Xinrui
Network shall pay under the Technical
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Consulting and Service Agreement, and civil liabilities that Xinrui Network
or Pledgors shall bear in case the Reorganization Agreement wholly or
partially becomes nullify due to 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 Unless consented to in writing by Xinrui Network after the execution of
this Agreement, the pledge under this Agreement will be discharged only
when Xinrui Network and Pledgors have performed all the obligations and
liabilities under the Reorganization Agreements and Party A confirms in
writing. If Xinrui Network or Pledgors have not fully performed all or part
of its obligations or liabilities under the Reorganization Agreements at
the expiration of such agreements, Party A will maintain the pledge
hereunder up to the date when all such obligations and liabilities are
fully performed.
3. EFFECT
3.1 This Agreement shall take effect as of the date when the Agreement is
executed by Party A, Party B and Party C.
3.2 Party A is entitled to dispose the pledge hereunder if Xinrui Network fails
to pay the fees in accordance with the Technical Consulting and Service
Agreement or fail to perform the Business Operation Agreement and the Share
Disposal 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 (original) of
Xinrui Network, provide the testification of the proper record of such
pledge on the shareholders' register of Xinrui Network to Party A within 7
working days as of the date of conclusion of this Agreement and pass
through all procedures required by Chinese laws.
4.2 Party B and Party C shall make corresponding change to the record of
pledge, provided the change is required to be recorded according to law;
and such change shall be made within 15
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days from occurrence of the change.
4.3 During the share pledge term, the Pledgor shall instruct Xinrui Network not
to distribute any dividends and profits or make any profit distribution
plan; in case Pledgor shall receive any monetary interests other than from
dividends, profits and profit distribution plan, Pledgor shall, on Party
A's request, instruct Xinrui Network to remit such kind of payment to the
bank account appointed by Party A; Pledgor shall not use the aforesaid
interest without Party A's prior written consent.
4.4 During the share pledge term, in case Pledgor receive new shares according
to Xinrui Network's plan of free delivering shares to shareholder, the new
increased shares shall be automatically turned into pledged shares under
this Agreement; the Pledgor shall complete all pledge procedures of the new
increased shares within 10 working days from receipt of the new shares.
Party A is entitled to exercise the right of the pledge pursuant Article 8
hereto in case the Pledgor fails to complete the aforesaid procedures.
4.5 If Pledgor is Party A's employee, during the pledge term, the Pledgor
hereby agrees and promises that whenever either of the Pledgor ceases
employment with Party A, it shall transfer all its shares in Xinrui Network
to Party A's designated third party. The third party, which receives the
transferred shares, shall take all the obligations and enjoy all the rights
under relevant reorganization agreements. The aforesaid guaranty is
irrevocable in the term of this Agreement.
5. WARRANTIES AND REPRESENTATION OF THE PLEDGOR
The Pledgors hereby make the following representation and warranties to
the Pledgee and confirm that Party A executes this Agreement in reliance of
such representation and warranties:
5.1 The Pledgors lawfully own the equity interests hereunder and are entitled
to create pledge on such the equity interests;
5.2 Party A shall not be interfered by any other parties once the board of
directors of Party A exercises the rights of the Pledge in accordance with
this Agreement.
5.3 Party A is entitled to dispose the pledge in accordance with relevant laws
and this Agreement.
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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 Except for the pledge under this Agreement, there is no other burden of
rights on the equity interests pledged by the Pledgors (including but not
limited to pledge).
5.6 There is no pending or incoming civil, administrative or criminal
litigation or administrative punishment or arbitration relating to the
equity interests hereunder at the date of execution 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 execution of this
Agreement.
5.8 Each provision 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 term of this Agreement, the Pledgor covenants to Party A that
the Pledgor will:
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 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 Party A 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 Party A;
6.1.3 timely notify Party A of any events or any received notices which may
affect the
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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 instructions of Party A;
6.2 The Pledgors agree that Party A's right of exercising the Pledge pursuant
to this Agreement shall not be suspended or hampered by the Pledgors or any
successors or transferees of the Pledgors or any other persons.
6.3 The Pledgors warrant to Party A that in order to protect or perfect the
security over the payment of the technical consulting and service fees
under the Technical Consulting and Service Agreement, the Pledgors 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 Pledgors warrants to Party A that the Pledgors 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 Party A for the reasons that the Pledgor
does not perform or fully perform their guarantees, covenants, agreements,
representations and conditions.
7. EVENT OF DEFAULT
7.1 The following events shall be regarded as an event of default:
7.1.1 Xinrui Network or its successors or transferees fail to make full
payment of service fees under the Service Agreement on time, or the
Pledgors or its successors or transferees fail to perform the Business
Operation Agreement, Assets Transfer Agreement and the Share Disposal
Agreement;
7.1.2 The Pledgors make any material misleading or fraudulent
representations or
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warranties under Article 5 and 6 herein, and/or the Pledgor is in
violation of any representations or warranties under Article 5 and 6
herein;
7.1.3 The Pledgors gravely violate any provisions of this Agreement;
7.1.4 The Pledgors waive the pledged equity interests or transfers the
pledged equity interests without prior written consent from the
Pledgee except otherwise agreed under Article 6.1.1 herein;
7.1.5 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;
7.1.6 The Pledgors are incapable of repaying the general debt or other
debt, which subsequently affects the interests of Party A;
7.1.7 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;
7.1.8 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;
7.1.9 The property of the Pledgor is adversely changed and causes Party A
to deem that the capability of the Pledgor to perform the obligations
herein is affected;
7.1.10 Other circumstances whereby the Pledgee is incapable of exercising
the right to dispose the Pledge in accordance with relevant laws.
7.2 The Pledgor shall immediately give a written notice to Party A 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 are going
on.
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7.3 Unless the event of default under Article 7.1 herein has been solved to
Party A's satisfaction, Party A, 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 other payables or timely perform the
Share Disposal Agreement, Business Operation Agreement and Assets Transfer
Agreement, 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 the pledge without prior written approval
from Party A prior to the full repayment of the fees under the Service
Agreement and the full performance of the Share Disposal Agreement,
Business Operation Agreement and the Assets Transfer Agreement.
8.2 Party A shall give a notice of default to the Pledgors when it 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 Party A gives a notice of default in accordance
with Article 7.3 or thereafter.
8.4 Party A is entitled to have priority in receiving payment by the evaluation
or proceeds from the auction or sale of whole or part of the share pledged
herein in accordance with legal procedure until the outstanding fees under
the Servicing Agreement and all other payables there under are repaid, and
the full performance of the Share Disposal Agreement, Business Operation
Agreement and the Assets Transfer Agreement.
8.5 The Pledgors 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
9.1 The Pledgors shall not transfer the rights and obligations to any third
party herein without prior consent from the Pledgee.
9.2 This Agreement shall be binding upon the Pledgors and their successors and
be effective to Party A and his successors and assignees.
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9.3 Party A may transfer his all or any rights and obligations under the
Reorganization Agreement to any third party at any time. In this case, the
assignee shall enjoy and undertake the same rights and obligations herein
of Party A as if the assignee is a party hereto. When Party A transfers the
rights and obligations under the Reorganization Agreement, at the request
of Party A, the Pledgors shall execute relevant agreements and/or documents
with respect to such transfer.
9.4 After the Pledgee's change resulting from the transfer, the new parties to
the pledge shall reexecute a pledge agreement.
10. FEES AND OTHER CHARGES
10.1 Party A and Party B shall be responsible for half of 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.
11. FORCE MAJEURE
11.1 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, 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.
11.2 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
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best efforts.
12. APPLICABLE LAW AND DISPUTE RESOLUTION
12.1 The execution, validity, performance and interpretation of this Agreement
shall be governed by and construed in accordance with the PRC law.
12.2 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.
12.3 Each Party shall continue performance of this Agreement in good faith
according to the stipulations herein except the matters in dispute.
13. 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:
PARTY A: ANJIAN XINGYE TECHNOLOGY (BEIJING) COMPANY LIMITED
Address: Room C709, south road No. 18, west ring of Beijing Economy &
Technology Development Area
Fax: ___________________
Tele: __________________
Addressee: __________________________________________
PARTY B: WANG GUIJUN
Address: A17, An De Li North Street, Dongcheng District, Beijing
Fax: ___________________
Tele: __________________
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Addressee: ___________________________________________
PARTY C: LI YANG
Address: No. 210 Building 397, Guang An Men Wai Avenue, Xuanwu
District Beijing
Fax: ____________________
Tele: ____________________
Addressee: ____________________________________________
14. APPENDICES
The appendices to this Agreement are entire and integral part of this
Agreement.
15. WAIVER
The Pledgee's non-exercise or delay in exercise of any rights, remedies,
power or 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.
16. MISCELLANEOUS
16.1 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.
16.2 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.
16.3 This Agreement is made in Chinese original and shall be kept in 3 copies.
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(No text on this page, signatory page)
PARTY A: ANJIAN XINGYE TECHNOLOGY (BEIJING) COMPANY LIMITED
Authorized Representative: _________________
PARTY B: WANG GUIJUN
Signature:
------------------------
PARTY C: LI YANG
Signature:
------------------------
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Exhibit
1. Shareholders Name List of Xinrui Network Technology Co. Ltd.
2. Investment Certificate of Establishing Xinrui Network Technology Co. Ltd.
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