Exhibit 4.46
SHARE PLEDGE AGREEMENT
This Share Pledge Agreement (this "Agreement"), dated November 21, 2005 is
entered into at Beijing by and among the following parties:
Party A: Kong Zhong Information Technologies (Beijing) Limited
(Beijing)
Address: Tengda Plaze, No.168 Xiwai Street, Haidian District,
Beijing
Legal Representative: Zhou Yunfan
Party B: Wuhan Chengxitong Information Technology Co., Ltd.
Address: Huatong Internet Mansion, Liberation Park Road No. 43,
Jiangan District, Wuhan
Legal Representative: Wang Guijun
Party C: Li Yang
Address: No. 210, Building 397, Guanganmenwai Avenue, Xuanwu
District, Beijing
Party D: Wu Xuelei
Address: Ningbo Street No. 23, Xicheng District, Beijing
WHEREAS,
1. Party A is a wholly foreign owned company incorporated in the People's
Republic of China (the "PRC").
2. Party B is a limited liability company in the PRC 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 C and Party D (the "Pledgor") are the shareholders of Party B and own
90% and 10% equity interest in Party B respectively. On November 21, 2005,
Party C and Party D entered into Share Transfer Agreements with the
original shareholders of Party B who transferred their respective equity
interest in Party B. The consideration for the transfer was paid by Party
A.
4. All parties to this Agreement have signed Exclusive Technical and
Consulting Services Agreement, Business Operation Agreement and Option
Agreement respectively on November 21, 2005.
5. In order to guarantee that Party A collects the fees under the Exclusive
Technical and Consulting Services Agreement in due course, and to ensure
the performance of the Business Operation Agreement and Option Agreement,
the Pledgors agree to severally and jointly pledge all their equity
interest in Party B to Party A, the Pledgee's as a security for the
performance of the obligations under the aforesaid agreements.
Therefore, through friendly negotiations and in the principles of equality and
mutual benefits, the parties hereby enter into the 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 Party B 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 and Consulting Services
Agreement, Business Operation Agreement and Option Agreement signed by the
parties of the Agreement respectively on November 21, 2005.
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 Party A in
accordance with this Agreement.
2. PLEDGE
2.1 The Pledgors agree to pledge all the equity interest in Party B to Party A
as the security for Party A's rights and interest under the Reorganization
Agreements.
2.2 The Pledge under this Agreement covers the fees (including legal fees),
expenses and losses that Party B shall pay to Party A under the Exclusive
Technical and Consulting Services Agreement, and the civil liabilities that
Party B or Pledgors shall bear the Party A in case the Reorganization
Agreements wholly or partially become nullify due to any reason.
2.3 The Pledge under this Agreement refers to the prior right owned by Party A
to the money gained from the conversion, auction, or sell of the equity
interests pledged by the Pledgor to the Pledgee.
2.4 Unless otherwise consented in writing by Party A after the execution of
this Agreement, the pledge under this Agreement will be terminated only
when Party B and the Pledgors have performed all the obligations and
liabilities under the Reorganization Agreements and Party A confirms in
writing. If Party B or the 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 equity shares
pledged are recorded in the Register of Shareholder of Party B.
3.2 Party A is entitled to dispose the Pledge hereunder if Party B fails to pay
the fees in accordance with
the Exclusive Technical and Consulting Services Agreement or fail to
perform the Business Operation Agreement and the Option Agreement.
4. PHYSICAL POSSESSION OF DOCUMENTS
4.1 During the term of the Pledge under this Agreement, the Pledgor shall
deliver the physical possession of the Certificate of Contribution
(original) of Party B and provide the testification of the proper record of
such pledge on the shareholders' register of Party B to Party A within one
week as of the date of conclusion of this Agreement.
4.2 Unless otherwise consented by Party A in writing, the Pledgor shall be
entitled to collect the proceeds (such as, including but not limited to,
any dividends and profits) from the equity interests, which shall also be
considered as the security for the liabilities of Party B under the
agreement, unless otherwise consented by Party A in writing, within 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 equity interests for Party A;
5.2 Party A shall not be interfered by any other parties once the board of
directors of Party A exercises its rights in accordance with this
Agreement.
5.3 Party A is entitled to dispose 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 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 existing pending 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 pending legal procedures related to
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 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 Party A without prior written consent from Party A except
for the transfer to Party A or the person designated by Party A as
required by Party A;
6.1.2 comply with and implement applicable laws and regulations, 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 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 fees under the Exclusive Technical and
Consulting Services 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 Party A 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 Party A, and provides Party A with all the documents regarded
as necessary to Party A 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 Party A. The Pledgor shall compensate for
all the losses suffered by Party A if 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 Party B or its successors or transferees fail to make full payment of
service fees under the Exclusive Technical and Consulting Services
Agreement on time, or the Pledgors or its successors or transferees
fail to perform the Business Operation Agreement and the Option
Agreement.;
7.1.2 The Pledgors make any material misleading or fraudulent
representations or 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 Party A
unless 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 Party A to deem
that the Pledgor's capacity to perform the obligations herein and the
interests of Party A are 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 Party A 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.
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 Pledgors
and require the Pledgor to immediately make full payment of the outstanding
fees under the Exclusive Technical and Consulting Services Agreement, and
other payables or timely perform the Business Operation Agreement or the
Option 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 Equity Interest without prior written
consent from Party A prior to the full repayment of the fees under the
Exclusive Technical and Consulting Services Agreement and the full
performance of the Business Operation Agreement or the Option Agreement.
8.2 Party A shall give a notice of default to the Pledgors when it exercises
the right of the Pledge.
8.3 Subject to Article 7.3, Party A may exercise the right to dispose the
Pledge when Party A gives a notice of default in accordance with Article
7.3 or at any time thereafter.
8.4 Party A is entitled to have priority in receiving 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 Exclusive Technical
and Consulting Services Agreement and all other payables thereof are
repaid, and the full performance of the Business Operation Agreement or the
Option Agreement.
8.5 The Pledgors shall not hinder Party A from disposing the Pledge in
accordance with this Agreement and shall give necessary assistance so that
Party A 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 Party A.
9.2 This Agreement shall be binding upon the Pledgors and their successors and
be effective to Party A and his successors and assignees.
9.3 Party A may transfer all or any of its rights and obligations under the
Reorganization Agreements 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 Agreements, 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 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 duty 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 provision 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 that 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.
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 to perform this Agreement in good faith according
to the provisions herein except for the matters in dispute.
13. NOTICE
Any notice or correspondence, which is given by the Party as stipulated
hereunder, shall be in 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: KONG ZHONG XIN TONG INFORMATION TECHNOLOGY LIMITED (BEIJING)
Address: Tengda Plaze, No.168 Xiwai Street, Haidian District, Beijing
Fax: 010-88575900
Tele: 010-88576000
Addressee: Zhou Yunfan
PARTY B: WUHAN CHENGXITONG INFORMATION & TECHNOLOGY COMPANY LIMITED
Address: Huatong Internet Mansion, Liberation Park Road No. 43, Jiangan
District, Wuhan
Fax: _____________
Tele: _____________
Addressee: Wang Guijun
PARTY C: LI YANG
Address: No. 210, Building 397, Guanganmenwai Avenue, Xuanwu District, Beijing
Fax: _____________
Tele: _____________
PARTY D: WU XUELEI
Address: Ningbo Street No. 23, Xicheng District, Beijing
Fax: _____________
Tele: _____________
14. APPENDICES
The appendices to this Agreement are a 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 enforced in accordance with the applicable law, such terms
and stipulations shall be deemed to be invalid and not enforceable within
the scope governed by the applicable law, and the rest stipulations will
remain effective.
16.3 This Agreement is translated from the Chinese original and shall be kept in
5 copies.
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PARTY A: KONG ZHONG XIN TONG INFORMATION TECHNOLOGY LIMITED (BEIJING)
Authorized Representative:
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PARTY B: WUHAN CHENGXITONG INFORMATION & TECHNOLOGY COMPANY LIMITED
Authorized Representative:
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PARTY C: LI YANG
Signature:
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PARTY D: WU XUELEI
Signature:
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APPENDICES
1. name list of Party B's shareholder
2. capital contribution certificate of Party B's shareholders