EXHIBIT 4.70
STOCK PURCHASE AND SUBSCRIPTION AGREEMENT
This STOCK PURCHASE AND SUBSCRIPTION AGREEMENT (this "AGREEMENT") is made
as of this 20th day of April 2007, by and among eChinaCash, Inc., a Delaware
corporation ("PARENT"), eChinaMobile Limited, a limited liability company
incorporated under the laws of the British Virgin Islands and a wholly-owned
subsidiary of Parent (the "COMPANY"), and Linktone Ltd., an exempted company
with limited liability incorporated under the laws of the Cayman Islands
("PURCHASER"). Each of Parent, the Company and Purchaser shall be referred to
herein individually as a "PARTY" and collectively as the "PARTIES".
RECITALS
WHEREAS, Purchaser desires to purchase from Parent, and Parent desires to
sell to Purchaser, the Existing Shares (as defined below), on the terms and
subject to the conditions hereinafter set forth.
WHEREAS, the Company desires to issue to Purchaser, and Purchaser desires
to contribute cash to the Company's capital in exchange for, the New Shares (as
defined below), on the terms and conditions hereinafter set forth.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual premises and covenants
contained herein and for other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the Parties covenant and agree as
follows:
ARTICLE I
AGREEMENT OF SUBSCRIPTION, PURCHASE AND SALE
1.1. AGREEMENT TO PURCHASE AND SELL EXISTING SHARES. Upon the terms and
subject to the conditions set forth in this Agreement, Parent shall sell to
Purchaser and Purchaser shall purchase from Parent, 16,333 shares of Common
Stock $1.00 par value ("COMMON STOCK"), of the Company (the "EXISTING SHARES"),
representing 16.33% of outstanding shares of the Company after giving effect to
the issuance of the New Shares pursuant to Section 1.2, in exchange for which
Purchaser shall deliver to Parent payment, by wire transfer to the bank account
designated in the wire transfer instructions attached hereto as Exhibit A, of
immediately available funds in an amount equal to of One Million Dollars
($1,000,000) (the "EXISTING SHARE PURCHASE PRICE"), representing a price of
$61.22 per share.
1.2. AGREEMENT TO PURCHASE NEW SHARES IN EXCHANGE FOR CONTRIBUTION. Upon
the terms and subject to the conditions set forth in this Agreement, the Company
agrees to issue and sell to Purchaser, 32,667 shares of Common Stock of the
Company (the "NEW SHARES", and collectively with the Existing Shares, the
"SHARES"), representing 32.67% of the outstanding shares of the Company after
giving effect to the issuance, in exchange for which Purchaser shall contribute
to the capital of the Company, by wire transfer to the bank account designated
in the wire transfer instructions attached hereto as Exhibit A, of immediately
available funds in an
amount equal to of Two Million Dollars ($2,000,000) (the "CONTRIBUTION AMOUNT"),
representing a price of $61.22 per share.
ARTICLE II
CLOSING
2.1 CLOSING. The closing (the "CLOSING") of the purchase, sale and
subscription described herein (the "PURCHASE") shall take place as soon as
practicable after all of the conditions set forth in Article VIII have been
satisfied (or, to the extent permitted, waived by the Party or Parties entitled
to the benefits thereof). The date on which the Closing occurs is referred to
herein as the "CLOSING DATE".
2.2. DELIVERIES BY PARENT. On the Closing Date, Parent shall deliver to
Purchaser:
(a) a certificate evidencing the Existing Shares;
(b) counterparts of the documents required to be executed and
delivered by Parent pursuant to Article VII;
(c) a counterpart of a cross-receipt acknowledging receipt of the
Existing Share Purchase Price; and
(d) such other documents and instruments as may be necessary to
consummate the transactions contemplated hereby upon the terms and subject
to the conditions set forth herein.
2.3. DELIVERIES BY THE COMPANY. On the Closing Date, the Company shall
deliver to Purchaser:
(a) a certificate evidencing the New Shares;
(b) counterparts of the documents required to be delivered by the
Company pursuant to the Company pursuant to Article VII.
(c) a counterpart of a cross-receipt acknowledging receipt of the
Contribution Amount; and
(d) such other documents and instruments as may be necessary to
consummate the transactions contemplated hereby upon the terms and subject
to the conditions set forth herein.
2.4. DELIVERIES BY PURCHASER. On the Closing Date, Purchaser shall deliver:
(a) to Parent, the Existing Share Purchase Price in same day funds as
provided in Section 1.1;
(b) to the Company, the Contribution Amount in same day funds as
provided in Section 1.2;
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(c) counterparts of the documents required to be delivered by
Purchaser pursuant to the Company pursuant to Article VII.
(d) a counterpart of a cross-receipt to each of Parent and the Company
acknowledging receipt of (i) the Existing Shares and (ii) the New Shares,
respectively; and
(e) such other documents and instruments as may be necessary to
consummate the transactions contemplated hereby upon the terms and subject
to the conditions set forth herein.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF PARENT
Parent hereby represents and warrants to Purchaser, as of the date of this
Agreement, as follows:
3.1. ORGANIZATION, GOOD STANDING AND QUALIFICATION. Parent is a corporation
duly organized, validly existing and in good standing under the laws of the
State of Delaware and has all requisite corporate power and authority to own its
properties and assets and to carry on its business as now conducted and as
presently proposed to be conducted.
3.2. DUE AUTHORIZATION. All corporate action on the part of Parent, its
officers, directors and stockholders, necessary for the authorization, execution
and delivery of, and the performance of all obligations of Parent under this
Agreement, and the sale of the Existing Shares being sold under this Agreement
has been taken. This Agreement is a valid and binding obligation of Parent
enforceable in accordance with its terms, subject, as to enforcement of
remedies, to applicable bankruptcy, insolvency, moratorium, reorganization and
similar laws affecting creditors' rights generally and to general equitable
principles. The Existing Shares are not subject to any preemptive rights or
rights of first refusal.
3.3. NO CONFLICTS. The entry by Parent into this Agreement does not and
will not result in any violation of, or conflict with, any term of the charter,
bylaws or other governing documents of Parent or any other instrument to which
Parent is bound or any laws or regulation applicable to Parent.
3.4. REQUIRED FILINGS AND CONSENTS. Except as set forth on Schedule 3.4,
the execution and delivery of this Agreement by Parent does not, and the
performance by Parent of its obligations hereunder and the contemplation of the
transactions contemplated hereby will not, require any consent, approval,
authorization or permit or, or filing by Parent with or notification by Parent
to, any governmental or regulatory authority.
3.5. EXEMPT OFFERING. Based upon Purchaser's representations in Article V,
the offer and sale of the Existing Shares pursuant to this Agreement will be
exempt from the registration requirements of Section 5 of the Act (as defined
below) by virtue of Regulation D thereunder and from the registration or
qualification requirements of any other applicable state securities laws.
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3.6 LIABILITIES. There are no material debts, liabilities or obligations,
whether accrued or fixed, absolute or contingent, matured or unmatured or
determined or determinable, of the Company of a nature required to be reflected
on a balance sheet prepared in accordance with United States generally accepted
accounting principles ("GAAP") other than any such debts, liabilities or
obligations (i) reflected or reserved against on the Company's financial
statements or the notes thereto, if any, (ii) for Taxes, and (iii) that would
not, individually or in the aggregate, reasonably be expected to have a material
adverse effect on its financial condition, business, prospects or operations (a
"MATERIAL ADVERSE EFFECT").
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company hereby represents and warrants to Purchaser, as of the date of
this Agreement, as follows:
4.1. ORGANIZATION, GOOD STANDING AND QUALIFICATION. The Company is a
corporation duly organized, validly existing and in good standing under the laws
of the British Virgin Islands and has all requisite corporate power and
authority to own its properties and assets and to carry on its business as now
conducted and as presently proposed to be conducted. The Company is duly
licensed or qualified and in good standing to do business as a foreign
corporation in each jurisdiction where failure to be so qualified would be
reasonably expected to have a Material Adverse Effect.
4.2. DUE AUTHORIZATION. All corporate action on the part of the Company,
its officers, directors and stockholders necessary for the authorization,
execution and delivery of, and the performance of all obligations of the Company
under this Agreement, and the authorization, issuance and delivery of the New
Shares being sold under this Agreement has been taken. This Agreement is a valid
and binding obligation of the Company enforceable in accordance with its terms,
subject, as to enforcement of remedies, to applicable bankruptcy, insolvency,
moratorium, reorganization and similar laws affecting creditors' rights
generally and to general equitable principles. The New Shares are not subject to
any preemptive rights or rights of first refusal.
4.3. NO CONFLICTS. The entry by the Company into this agreement does not
and will not result in any violation of, or conflict with, any term of the
charter, bylaws or other governing documents of the Company or any other
instrument to which the Company is bound or any laws or regulation applicable to
the Company.
4.4. REQUIRED FILINGS AND CONSENTS. Except as set forth on Schedule 4.4,
the execution and delivery of this Agreement by the Company does not, and the
performance by the Company of its obligations hereunder and the contemplation of
the transactions contemplated hereby will not, require any consent, approval,
authorization or permit or, or filing by the Company with or notification by the
Company to, any governmental or regulatory authority.
4.5. VALID ISSUANCE OF STOCK. The New Shares, when issued, sold and
delivered in accordance with the terms of this Agreement, will be duly and
validly issued, fully paid and non-assessable.
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4.6. EXEMPT OFFERING. Based upon Purchaser's representations in Article V,
the offer and sale of the New Shares pursuant to this Agreement will be exempt
from the registration requirements of Section 5 of the Act by virtue of
Regulation D thereunder and from the registration or qualification requirements
of any other applicable state securities laws.
4.7. CAPITALIZATION. As of the date hereof, the authorized capital stock of
the Company consists of fifty-thousand U.S. dollars ($50,000) divided among
fifty-thousand (50,000,000) shares, each having a par value of $1.00 (the
"AUTHORIZED SHARES"). All of the Authorized Shares are issued and outstanding.
4.8 LIABILITIES. There are no debts, liabilities or obligations, whether
accrued or fixed, absolute or contingent, matured or unmatured or determined or
determinable, of the Company of a nature required to be reflected on a balance
sheet prepared in accordance with GAAP, other than any such debts, liabilities
or obligations (i) reflected or reserved against on the Company's financial
statements or the notes thereto, if any (ii) for Taxes, and (iii) that would
not, individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect.
4.9 LITIGATION. There is no action, suit or proceeding by or against the
Company pending, or to the knowledge of the Company, threatened in writing (a)
seeking damages (b) pursuing any criminal sanctions or penalties, (c) seeking
equitable or injunctive relief or (d) that would otherwise, individually or in
the aggregate, reasonably be expected to have a Material Adverse Effect or would
affect the legality, validity or enforceability of this Agreement.
4.10 NO OPERATIONS. Since its formation the Company has engaged in no
material business operations or material transactions.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser hereby represents and warrants to the Company and Parent, as of
the date of this Agreement, as follows
5.1. ORGANIZATION, GOOD STANDING AND QUALIFICATION. Purchaser is a
corporation duly organized, validly existing and in good standing under the laws
of the Cayman Islands and has all requisite corporate power and authority to own
its properties and assets and to carry on its business as now conducted and as
presently proposed to be conducted. Purchaser is duly licensed or qualified and
in good standing to do business as a foreign corporation in each jurisdiction
where failure to be so qualified would have a material adverse effect on its
financial condition, business, prospects or operations.
5.2. DUE AUTHORIZATION. All corporate action on the part of Purchaser, its
officers, directors and stockholders necessary for the authorization, execution
and delivery of, and the performance of all obligations of Purchaser under, this
Agreement has been taken. This Agreement is a valid and binding obligation of
Purchaser enforceable in accordance with its terms, subject, as to enforcement
of remedies, to applicable bankruptcy, insolvency, moratorium, reorganization
and similar laws affecting creditors' rights generally and to general equitable
principles.
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5.3 NO CONFLICTS. The entry by Purchaser into this Agreement does not and
will not result in any violation of, or conflict with, any term of the charter,
bylaws or other governing documents of Purchaser or any other instrument to
which Purchaser is bound or any laws or regulation applicable to Purchaser.
5.4. REQUIRED FILINGS AND CONSENTS. Except as set forth on Schedule 5.4,
the execution and delivery of this Agreement by Purchaser does not, and the
performance by Purchaser of its obligations hereunder and the contemplation of
the transactions contemplated hereby will not, require any consent, approval,
authorization or permit or, or filing by Purchaser with or notification by
Purchaser to, any governmental or regulatory authority.
5.5. INVESTIGATION; ECONOMIC RISK. Purchaser acknowledges that it has been
furnished with, or has had made available to it, information regarding the risks
of purchasing the Shares and the Additional Shares (as defined below). Purchaser
further acknowledges that it has had an opportunity to discuss the business,
affairs and current prospects of the Company with its officers and has been
provided an opportunity to ask questions of, and has received answers thereto
satisfactory to Purchaser from, the Company and Parent. Purchaser further
acknowledges having had access to all other information about the Company that
it has requested.
5.6 EVALUATION OF AND ABILITY TO BEAR RISK. Purchaser has such knowledge
and experience in financial affairs that Purchaser is capable of evaluating the
merits and risks of an investment in the Shares and the Additional Shares.
Purchaser has not relied in connection with this investment upon any
representations, warranties or agreements other than those set forth in this
Agreement. Purchaser's financial situation is such that Purchaser can afford to
bear the economic risk of holding the Shares and the Additional Shares for an
indefinite period of time, and Purchaser can afford to suffer the complete loss
of Purchaser's investment in the Shares and the Additional Shares.
5.4. PURCHASE FOR INVESTMENT. Purchaser is purchasing the Shares (and may
receive the Additional Shares) pursuant to this Agreement for Purchaser's own
account and not with a view to or for sale in connection with any distribution
of all or any part of the Shares or Additional Shares or Purchaser's interest in
any of the Shares or Additional Shares. Purchaser hereby agrees that Purchaser
will not, directly or indirectly, transfer, offer, sell, pledge, hypothecate or
otherwise dispose of all or any part of the Shares or Additional Shares or
Purchaser's interest in any of the Shares or Additional Shares (or solicit any
offers to buy, purchase or otherwise acquire or take a pledge of all or any part
thereof) except in accordance with the terms of the Stockholders Agreement (as
defined below) and in a manner that does not violate the registration or any
other applicable provisions of the Act (or any other applicable federal
securities laws) or any applicable state securities laws. Purchaser understands
that Purchaser must bear the economic risk of an investment in the Shares and
the Additional Shares for an indefinite period of time because, among other
reasons, the offering and sale of the Shares and the Additional Shares have not
been registered under the Act, and therefore, the Shares and Additional Shares
cannot be sold unless they are subsequently registered under the Act or an
exemption from such registration is available. Purchaser also understands that
sales or transfers of the Shares and Additional Shares will be further
restricted by the provisions of the Stockholders Agreement and applicable state
securities laws.
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5.5. ACCREDITATION. Purchaser qualifies as an "accredited investor" (as
such term is defined in Rule 501 of Regulation D promulgated under the Act). All
information, including the foregoing statement, which Purchaser has provided or
will provide to Parent and the Company including, but not limited to,
Purchaser's financial position and knowledge of financial and business matters,
is true, correct and complete as of the date of execution of this Agreement and
will be true, correct and complete as of the Closing Date. Purchaser undertakes
to provide promptly to Parent and the Company written notice of any material
changes in Purchaser's financial position or otherwise and such information will
be true, correct and complete as of the date given and as of the Closing Date.
Purchaser understands that Parent and the Company will rely in a material degree
upon the representations contained herein.
5.6. RESTRICTIVE LEGENDS. It is understood that each certificate
representing the Shares and the Additional Shares and any other securities
issued in respect of the Shares or the Additional Shares upon any stock split,
stock dividend, recapitalization, merger or similar event shall be stamped or
otherwise imprinted with a legend substantially in the following form:
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR UNDER THE SECURITIES
LAWS OF ANY STATES. THESE SECURITIES ARE SUBJECT TO RESTRICTIONS ON
TRANSFERABILITY AND RESALE AND MAY NOT BE TRANSFERRED OR RESOLD EXCEPT AS
PERMITTED UNDER THE ACT AND THE APPLICABLE STATE SECURITIES LAWS, PURSUANT
TO REGISTRATION OR EXEMPTION THEREFROM. INVESTORS SHOULD BE AWARE THAT THEY
MAY BE REQUIRED TO BEAR THE FINANCIAL RISKS OF THIS INVESTMENT FOR AN
INDEFINITE PERIOD OF TIME. THE ISSUER OF THESE SECURITIES MAY REQUIRE AN
OPINION OF COUNSEL IN FORM AND SUBSTANCE REASONABLY SATISFACTORY TO THE
ISSUER TO THE EFFECT THAT ANY PROPOSED TRANSFER OR RESALE IS IN COMPLIANCE
WITH THE ACT AND ANY APPLICABLE STATE SECURITIES LAWS. THE SALE, TRANSFER
OR OTHER DISPOSITION OF THE SECURITIES REPRESENTED HEREBY IS ALSO SUBJECT
TO COMPLIANCE WITH TERMS AND CONDITIONS OF THAT CERTAIN STOCKHOLDERS
AGREEMENT, AS SUPPLEMENTED, MODIFIED AND AMENDED FROM TIME TO TIME, AMONG
THE COMPANY AND THE STOCKHOLDERS SIGNATORY THERETO, A COPY OF WHICH
AGREEMENT IS AVAILABLE FOR INSPECTION DURING REGULAR BUSINESS HOURS AT THE
PRINCIPAL EXECUTIVE OFFICES OF THE COMPANY.
ARTICLE VI
COVENANTS OF THE PARTIES
6.1. FURTHER ASSURANCES. Each of the Parties hereto shall use their
respective commercially reasonable efforts to take, or cause to be taken, all
actions and to do, or cause to be done, all other things necessary, proper or
advisable to consummate and make effective as
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promptly as practicable all necessary waivers, consents and approvals and to
effect all necessary registrations and filings, and otherwise to satisfy or
cause to be satisfied all conditions precedent to its obligations under this
Agreement. In addition to and not in limitation of the foregoing, the Parties
shall execute and deliver such other documents, certificates, agreements and
other writings and shall take such other actions as may be reasonably necessary
or desirable in order to consummate or implement expeditiously the transactions
contemplated hereby.
6.2. CONFIDENTIALITY; PUBLIC ANNOUNCEMENTS. The Parties shall keep this
Agreement and the execution and terms hereof confidential, and shall consult
with each other before issuing any press release or making any public statement
with respect to this Agreement or the transactions contemplated hereby. The
foregoing obligations of confidentiality do not pertain to the disclosure of
information which is available publicly, is required to be disclosed by any
court or any party discloses, upon advice of counsel, in order to comply with
applicable law.
6.3 CREATION OF WHOLLY-OWNED FOREIGN ENTERPRISE OF THE COMPANY. As soon as
practicable after the date hereof, but in no event to be a condition of the
Closing, the Company shall, with the assistance of the Parties, take all actions
necessary and proper to form a wholly-owned foreign enterprise (the "WOFE") of
the Company incorporated under the laws of the People's Republic of China, and
to make all filings, obtain all consents and take all reasonable actions
appropriate in connection therewith. Any and all reasonable costs, fees or
expenses incurred by the Company shall be split equally between Purchaser and
Parent. The Stockholders Agreement shall contain terms and provisions reasonably
agreed to between the parties for the operation of the WOFE. Promptly after
later of (a) the Closing and (b) the formation of the WOFE, the Company shall
contribute One Million Dollars ($1,000,000) to the WOFE.
6.4 RELEASE OF ADDITIONAL SHARES. In the event the WOFE's total aggregate
gross revenues do not equal or exceed an aggregate of Three Million Dollars
($3,000,000) on or prior to the 18-month anniversary of the later of (a) Closing
Date and (b) the formation of the WOFE, Parent shall deliver to Purchaser 11,000
additional shares of Common Stock (the "ADDITIONAL SHARES") of the Company to
Purchaser for no additional consideration, such that Purchaser will own an
aggregate of 60,000 shares of Common Stock.
ARTICLE VII
CLOSING CONDITIONS
7.1 CONDITIONS TO OBLIGATIONS OF PARENT. The obligations of Parent to
effect the Purchase and the other transactions contemplated hereby are subject
to the fulfillment, or waiver, on or prior to the Closing Date of each of the
following conditions:
(a) Approvals. All material consents, approvals and actions of,
filings with, and notices to, any governmental entity required to effect
the Purchase and the other transactions contemplated shall have been
obtained or made and shall be in full force and effect.
(b) Representations and Warranties. All representations and warranties
made by Purchaser hereunder (without giving effect to any qualifiers set
forth in the text of such representation or warranty relating to
materiality or material adverse effect) shall be
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true and correct as of the date hereof, and at and as of the Closing as
though made as of that time (or in the case of a representation or warranty
that expressly speaks as of an earlier date, as of such earlier date),
except where the failure to be true and correct would not have a material
adverse effect on Purchaser.
(c) Performance of Obligations. Purchaser shall have performed,
satisfied and complied in all material respects (without giving effect to
any qualifiers set forth in the text of such covenant relating to
materiality or material adverse effect) with all covenants and agreements
required by this Agreement to be performed, satisfied or complied with by
it at or before the Closing.
(d) Stockholders Agreement. Purchaser shall have executed and
delivered to Parent a Stockholders Agreement in a form reasonably agreed to
by the Parties (the "STOCKHOLDERS AGREEMENT").
7.2. CONDITIONS TO OBLIGATIONS OF THE COMPANY. The obligations of the
Company to effect the Purchase and the other transactions contemplated hereby
are subject to the fulfillment, or waiver, on or prior to the Closing Date of
each of the following conditions:
(a) Approvals. All material consents, approvals and actions of,
filings with, and notices to, any governmental entity required to effect
the Purchase and the other transactions contemplated shall have been
obtained or made and shall be in full force and effect.
(b) Representations and Warranties. All representations and warranties
made by Purchaser hereunder (without giving effect to any qualifiers set
forth in the text of such representation or warranty relating to
materiality or material adverse effect) shall be true and correct as of the
date hereof, and at and as of the Closing as though made as of that time
(or in the case of a representation or warranty that expressly speaks as of
an earlier date, as of such earlier date), except where the failure to be
true and correct would not have a material adverse effect on Purchaser.
(c) Performance of Obligations. Purchaser shall have performed,
satisfied and complied in all material respects (without giving effect to
any qualifiers set forth in the text of such covenant relating to
materiality or material adverse effect) with all covenants and agreements
required by this Agreement to be performed, satisfied or complied with by
it at or before the Closing.
(d) Stockholders Agreement. Purchaser shall have executed and
delivered to the Company the Stockholders Agreement.
7.3. CONDITIONS TO OBLIGATIONS OF PURCHASER. The obligations of Purchaser
to effect the Purchase and the other transactions contemplated hereby are
subject to the fulfillment, or waiver, on or prior to the Closing Date of each
of the following conditions:
(a) Approvals. All material consents, approvals and actions of,
filings with, and notices to, any governmental entity required to effect
the Purchase and the other
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transactions contemplated shall have been obtained or made and shall be in
full force and effect.
(b) Representations and Warranties. All representations and warranties
made by Parent and the Company hereunder (without giving effect to any
qualifiers set forth in the text of such representation or warranty
relating to materiality or material adverse effect) shall be true and
correct as of the date hereof, and at and as of the Closing as though made
as of that time (or in the case of a representation or warranty that
expressly speaks as of an earlier date, as of such earlier date), except
where the failure to be true and correct would not have a Material Adverse
Effect.
(c) Performance of Obligations. Parent and the Company shall have
performed, satisfied and complied in all material respects (without giving
effect to any qualifiers set forth in the text of such covenant relating to
materiality or material adverse effect) with all covenants and agreements
required by this Agreement to be performed, satisfied or complied with by
them at or before the Closing.
(d) Stockholders Agreement. Parent and the Company shall have executed
and delivered to Purchaser the Stockholders Agreement.
ARTICLE VIII
INDEMNIFICATION
8.1. INDEMNIFICATION BY PARENT AND THE COMPANY. Parent and the Company
shall, jointly but not severally, save, defend, indemnify and hold harmless
Purchaser and its officers, directors, employees, agents, successors and assigns
from and against any and all losses, damages, liabilities, deficiencies, claims,
interest, awards, judgments, penalties, costs and expenses (including reasonable
attorneys' fees, costs and other out-of-pocket expenses incurred in
investigating, preparing or defending the foregoing) (collectively, the
"LOSSES") to the extent resulting from any breach of any representation or
warranty made by Parent or the Company contained in this Agreement and any
breach of any covenant or agreement by Parent or the Company contained in this
Agreement. Losses covered by this Article VIII shall be referred to herein as
"COVERED LOSSES".
8.2 INDEMNIFICATION BY PURCHASER. Purchaser shall save, defend, indemnify
and hold harmless Parent and the Company, their officers, directors, employees,
agents, successors and assigns from and against any and all Covered Losses to
the extent arising out of or resulting from any breach of any representation or
warranty made by Purchaser contained in this Agreement and any breach of any
covenant or agreement by Purchaser contained in this Agreement.
8.3 LIMITATIONS ON INDEMNIFICATION.
(a) For purposes of determining those Covered Losses which will be
subject to indemnification under this Article VIII, the parties have agreed
to use predictable dollar thresholds. Accordingly, the parties hereto agree
that with respect to any representation or warranty referred to in Sections
8.1 or 8.2, if such representation or
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warranty contains a materiality qualification, such materiality
qualification shall be disregarded and only the dollar thresholds stated in
this Section 8.3 shall apply.
(b) Parent and the Company shall have no liability for indemnification
pursuant to Section 8.1 with respect to Covered Losses unless such Covered
Losses exceed in the aggregate $30,000 (the "THRESHOLD"), in which case
Parent and the Company shall be liable for all Covered Losses in excess of
the Threshold; provided, however, that the total liability of Parent and
the Company with respect to Covered Losses shall not exceed, in the
aggregate, $150,000 (the "CAP").
(c) Purchaser shall have no liability for indemnification pursuant to
Section 8.2 with respect to Covered Losses unless such Covered Losses
exceed in the aggregate the Threshold, in which case Purchaser shall be
liable for all Covered Losses in excess of the Threshold; provided,
however, that the total liability of Purchaser with respect to Covered
Losses shall not exceed, in the aggregate, the Cap.
8.4 EXCLUSIVE REMEDY. From and after the Closing, this Article VIII shall
be the exclusive remedy of the parties hereto for any Covered Losses arising out
of any breach of the representations, warranties, covenants or agreements of the
Parties contained in this Agreement. Notwithstanding the foregoing, nothing set
forth herein shall limit the rights, remedies and claims of any party hereto
with respect to the fraudulent acts or willful breach of another party.
8.5 SURVIVAL. The representations and warranties in this Agreement shall
terminate on the date that is twelve (12) months following the Closing Date. The
covenants and agreements of the parties that contemplate performance at or prior
to the Closing shall terminate on the date that is twelve (12) months following
the Closing Date. The covenants and agreements of the Parties that by their
terms are to be performed in whole or in part after the Closing shall survive
the Closing and terminate on the date that is twelve (12) months after the date
on which such covenant and agreement is to be performed.
ARTICLE IX
TERMINATION
9.1. TERMINATION. This Agreement may be terminated at any time prior to the
Closing pursuant to the following:
(a) Mutual Consent. This Agreement may be terminated by mutual written
consent of each of the Parties.
(b) Outside Date. This Agreement may be terminated by any of the
Parties if the Closing shall not have occurred by April 30, 2007 (the
"OUTSIDE DATE"); provided, that no party may terminate this Agreement
pursuant to this Section 9.1(b) if that party has breached its obligations
under this Agreement in a manner that shall have proximately contributed to
the failure of the Closing to occur by such date.
(c) Failure to Perform. By either Parent or the Company, on the one
hand, or Purchaser, on the other hand, if (i) with respect to termination
by Parent or the Company,
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there has been a breach of any covenant or representation or warranty of
Purchaser contained in this Agreement or (ii) with respect to termination
by Purchaser, if there has been a breach of any covenant or representation
or warranty of Parent or the Company contained in this Agreement, and in
either case such breach would cause the failure of any condition precedent
set forth in Article VII to be satisfied; provided, that in the case of a
breach that maybe cured, any such breach of a covenant or representation or
warranty has not been cured within thirty (30) days following receipt by
the breaching party of written notice of such breach.
(c) Government Order. By any of the Parties in the event that any
governmental authority shall have issued an order, decree or ruling or
taken any other action restraining, enjoining or otherwise prohibiting the
transactions contemplated by this Agreement and such order, decree, ruling
or other action shall have become final and nonappealable.
The party seeking to terminate this Agreement pursuant hereto shall give
prompt written notice of such termination to the other party.
9.2 Effect of Termination. In the event of termination of this Agreement as
provided herein, this Agreement shall forthwith become void and there shall be
no liability on the part of either party; provided; however, that nothing herein
shall relieve either party from liability for any breach of this Agreement or
any agreement made as of the date hereof or subsequent thereto pursuant to this
Agreement.
ARTICLE X
MISCELLANEOUS
10.1. GOVERNING LAW. This Agreement shall be governed in all respects by
the laws of the state of California without regard to provisions regarding
choice of laws.
10.2. ENTIRE AGREEMENT. This Agreement constitutes the entire understanding
and agreement between the Parties with regard to the subjects hereof and
thereof.
10.3. NOTICES. All notices, requests, waivers and other communications made
pursuant to this Agreement shall be in writing and shall be conclusively deemed
to have been duly given (a) when hand delivered to the other party; (b) when
received when sent by facsimile or electronic mail at the relevant address set
forth below; (c) three business days after deposit in the U.S. mail with first
class or certified mail receipt requested postage prepaid and addressed to the
other party as set forth below; or (d) the next business day after deposit with
a national overnight delivery service, postage prepaid, addressed to the Parties
as set forth below with next-business-day delivery guaranteed, provided that the
sending party receives a confirmation of delivery from the delivery service
provider.
To the Company or Parent:
eChinaCash, Inc.
3110 Main Street
Suite 210
12
Santa Monica, CA 90405
Attn: Andrew Beck
Phone: (310) 458-6370
Email: andyb@echinacacsh.com
with a copy to:
Gibson, Dunn & Crutcher LLP
333 South Grand Avenue
Los Angeles, CA 90071
Attn: Bruce D. Meyer
Telecopier No.: (213) 229-6979
Email: bmeyer@gibsondunn.com
To Purchaser:
Colin Sung
Chief Financial Officer
Linktone Ltd.
5/F Eastern Tower
#689 Beijing Dong Road
Shanghai 200001, PRC
Fax: 86 (21) 63611559
Email: colin.sung@linktone.com
with a copy to:
Morrison & Foerster LLP
Suite 3501, Bund Center
No. 222, Yan An Road East
Shanghai 200002, PRC
Attn: Charles Comey
Fax: 86 (21) 6335 2290
Email: ccomey@mofo.com
A party may change or supplement the addresses given above, or designate
additional addresses, for purposes of this Section 10.3 by giving the other
party written notice of the new address in the manner set forth above.
10.4. AMENDMENT AND WAIVER. Any term of this Agreement may be amended only
with the written consent of each of the Parties. No delay or omission to
exercise any right, power or remedy accruing to Parent, to the Company or to
Purchaser, upon any breach or default of any Party hereto under this Agreement,
shall impair any such right, power or remedy of Parent, the Company, or
Purchaser nor shall it be construed to be a waiver of any such breach or
default, or an acquiescence therein, or of any similar breach or default
thereafter occurring; nor shall any waiver of any other breach or default
theretofore or thereafter occurring. Any waiver, permit, consent or approval of
any kind or character on the part of Parent, the Company or Purchaser of any
breach or default under this Agreement or any waiver on the part of Parent, the
13
Company or Purchaser of any provisions or conditions of this Agreement, must be
in writing and shall be effective only to the extent specifically set forth in
such writing. All remedies, either under this Agreement, or by law or otherwise
afforded to Parent, the Company or Purchaser shall be cumulative and not
alternative.
10.5. CAPTIONS. The captions herein are for convenience of reference only
and are not to be considered in construing this Agreement. All references to an
Article or Section include all subparts thereof
11.6. COUNTERPARTS. This Agreement may be executed in any number of
counterparts all of which together shall constitute one instrument. This
Agreement may be executed by facsimile signature.
11.7. SEVERABILITY. Should any provision of this Agreement be determined to
be illegal or unenforceable, such determination shall not affect the remaining
provisions of this Agreement.
11.8. PERSONAL LIABILITY. This Agreement shall not create or be deemed to
create or permit any personal liability or obligation on the part of any direct
or indirect stockholder of the Seller or the Buyer or any officer, director,
employee, Representative or investor of either party hereto.
11.9. WAIVER OF JURY TRIAL. EACH OF THE PARTIES TO THIS AGREEMENT HEREBY
IRREVOCABLY WAIVES ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR
COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY.
11.10 ARBITRATION Any dispute, claim or controversy arising out of or
relating to this Agreement or the breach, termination, enforcement,
interpretation or validity thereof, including the determination of the scope or
applicability of this agreement to arbitrate, shall be determined by arbitration
(the "AWARD") in California by one arbitrator. The arbitration shall be
administered by JAMS pursuant to its Streamlined Arbitration Rules and
Procedures. The arbitrator may, in the Award, allocate all or part of the costs
of the arbitration, including the fees of the arbitrator and the reasonable
attorneys' fees of the prevailing party. Judgment on the Award may be entered in
any court having jurisdiction. This clause shall not preclude parties from
seeking provisional remedies in aid of arbitration from a court of appropriate
jurisdiction.
[signature page follows]
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IN WITNESS WHEREOF, the Parties have caused this Agreement to be duly
executed by their respective authorized officers as of the day and year first
above written.
ECHINACASH, INC.,
a Delaware corporation
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
ECHINAMOBILE (BVI) LTD.,
a limited liability company incorporated
under the laws of the British Virgin
Islands
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
LINKTONE LTD.,
an exempted company with limited
liability incorporated under the laws of
the Cayman Islands
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
SIGNATURE PAGE TO STOCK PURCHASE AGREEMENT
EXHIBIT A
WIRING INSTRUCTIONS
eChinaCash, Inc.
Wells Fargo Bank
Santa Monica, CA 90401
ABA Routing # 122 000 247
eChinaCash Account # 037-5629029