Exhibit 10.35
Hurray! Solutions Ltd.
CONTRACT RELATING TO THE EXCLUSIVE PURCHASE RIGHT OF
EQUITY INTEREST
Dated as of May 5, 2004
CONTRACT RELATING TO
THE EXCLUSIVE PURCHASE RIGHT OF AN EQUITY INTEREST
The Contract Relating to the Exclusive Purchase Right of An Equity Interest,
dated as of May 5, 2004 (this "Contract"), is made in Beijing by and among:
(1) Hurray! Holding Co., Ltd. (the "Lender"), a limited company
established and registered in Cayman island, with the address at
Century Yard, Cricket Square, Hutchins Drive, P.O. Box 2681GT, George
Town, Grand Cayman, British West Indies (the "Party A");
(2) Wang Qindai, Citizen of the People's Republic of China (the "PRC"),
holding the Identification Card of the PRC (No.: 110102641107155),
with the address at No.50 Dajue Hutong, Xicheng District, Beijing
(the "Party B"); and
(3) Hurray! Solutions Ltd., a limited liability company organized and
existing under the laws of the PRC, with the legal registration
address at Room 318, Floor 3, No.12 Fuxing Road, Haidian District,
Beijing (the "Party C").
As used in this Contract, Party A, Party B, and Party C is "the Party"
respectively, and "Parties to the Contract" in all.
WHEREAS,
1. Party B has the ownership of 85% equity interest in Party C.
2. Party C and Hurray! Times Communications (Beijing) Ltd., a 100% owned
subsidiary company of Party A within PRC, entered into a series of
contracts such as Exclusive Technical Consulting and Services
Agreement Contracts.
NOW, THEREFORE, the parties to this Contract hereby agree as follows:
1. Purchase and Sale of Equity Interest
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Section 1.1 Authorization
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Party B hereby irrevocably delivers to Party A, under the laws of the PRC, an
irrevocable sole authority ("Purchase Right of Equity Interest") for Party A or
one or more persons designated by Party A (the "Designated Persons") to purchase
(in accordance with steps decided by Party A and at the price specified in
Section 1.3 hereof) at any time from Party B all or part of Party B's equity
interest in Party C. Except for Party A and the Designated Persons, Party B
shall not grant such right to any other party. Party C hereby
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agrees to the delivery of Purchase Right of Equity Interest from Party B to
Party A. As specified in this Section and this Contract, "person" has the
meaning of Person, Corporation, Joint Venture, Partnership, Enterprise, Trust or
Non-Corporation Organization.
Section 1.2 Steps
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The performance of Purchase Right of Equity Interest of Party A shall be
upon and subject to the laws and regulations of PRC. Party A shall send a
written notice (the "Notice of Purchase of Equity Interest") to Party B upon its
performance of Purchase Right of Equity Interest, the Notice of Purchase of
Equity Interest shall have in it the following contents:
(a) Party A's decision of the performance of purchase right;
(b) The Equity Interest to be purchased by Party A from Party B (the
"Purchased Equity Interest");
(c) Purchase Date/Equity Interest Transferring Date.
Section 1.3 Purchase Price
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Except as required evaluate, the price of the Purchased Equity Interest
("Purchase Price") shall be an equivalent of the actual amount of the Purchased
Equity Interest contributed by Party B.
The Purchase Price is subject to applicable laws and regulations of PRC.
Section 1.4 Transfer of the Purchased Equity Interest
-----------------------------------------
Every time upon Party A's performance of the Purchase Right of Equity Interest:
(a) Party B shall urge Party C to convene the shareholders meeting, and during
the meeting, to pass the decision or resolution to transfer the equity
interest from Party B to Party A and/or the Designated Persons;
(b) Party B shall, upon the terms and conditions of this Contract and the
Notice of Purchase of Equity Interest, enter into Equity Interest Transfer
Contract with Party A (or, in applicable situation, the Designated
Persons);
(c) The related parties shall execute all other requisite contracts, agreements
or documents, acquire all requisite approval and consent of the government,
and, without any security interest, perform all requisite action to
transfer the valid
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ownership of the Purchased Equity Interest to Party A and/or the Designated
Person, and to cause Party A and/or the Designated Person to be the
registered owner of the Purchased Equity Interest. For this Section and
this Contract, "Security Interest" has the meaning of security, mortgage,
right or interest of the third party, any purchase right of equity
interest, right of acquisition, prior purchase right, right of set-off,
ownership detainment or other security arrangements. To further define the
meaning, it does not include any security interest subject to this Contract
or the equity interest pledge contract of Party B. As described in this
Section and this Contract, "the Equity Interest Pledge Contract of Party B"
has the meaning of the Equity Interest Pledge Contract entered into by
Hurray! Times Communications (Beijing) Ltd. and Party B dated as of the
execution date of this Contract. According to the said Contract, to secure
Party C to perform the obligations subject to the Exclusive Technology
Consulting and Service Agreement entered into between Party C and Hurray!
Times Communications (Beijing) Ltd., Party B pledges all its equity
interest in Party C to Hurray! Times Communications (Beijing) Ltd.
Section 1.5 Payment
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As contemplated in the Loan Contract, any proceeds gained by Party B from the
transfer of its equity interest in Party C shall be used, as the payment to its
loan borrowed from Party A. Therefore, upon the performance of the Purchase
Right of Equity Interest by Party A, the Purchase Price shall be used as the
payment from Party B to Party A subject to the loan. Party A does not need pay
the Purchase Price to Party B anymore.
2. Promises Relating to Equity Interest
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Section 2.1 Promises of Party C
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Party C hereby promises:
(a) Without prior written consent by Party A or Hurray! Times Communications
(Beijing) Ltd., Party A's Affiliate in PRC, not, in any form, to
complement, change or renew the Articles of the Association of Party C, to
increase or decrease registered capital of the corporation, or to change
the structure of the registered capital in any other forms;
(b) Following kind finance and business standard and tradition, to maintain the
existence of the corporation and prudently and effectively operate business
and process affairs;
(c) Without prior written consent by Party A or Hurray! Times Communications
(Beijing) Ltd., Party A's Affiliate in PRC, not, from the execution date of
this Contract, to sell, transfer, mortgage or dispose in any other form any
assets, legitimate or beneficial
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interest of business or income of Party C, or to approve any other security
interest set on it;
(d) Without prior written notice by Party A or Hurray! Times Communications
(Beijing) Ltd., Party A's Affiliate in PRC, no debt shall take place, be
inherited, be guaranteed, or be allowed to exist, with the exception of:
(i) debt from normal or daily business but not from borrowing; (ii) debt
having been disclosed to Party A or having gained written consent from
Party A;
(e) To normally operate all business to maintain the asset value of Party C,
without doing or otherwise any taking action that sufficiently adversely
affects the operation and asset value;
(f) Without prior written consent by Party A or Hurray! Times Communications
(Beijing) Ltd., Party A's Affiliate in PRC, not to enter into any material
contract, with the exception of the contract entered into during the normal
business ( As in this paragraph, a contract with a value more than RMB One
Million (RMB 1,000,000) shall be seemed as a material contract);
(g) Without prior written consent by Party A or Hurray! Times Communications
(Beijing) Ltd., Party A's Affiliate in PRC, not to provide loan or credit
loan to anyone;
(h) Upon the request of Party A, to provide all operation and finance materials
relevant to Party C;
(i) Party C purchases and holds all insurance from the insurance company
accepted by Party A, the insurance amount and category shall be the same
with those held by the companies in the same area, operating the similar
business and owning the similar properties and assets;
(j) Without prior written consent by Party A or Hurray! Times Communications
(Beijing) Ltd., Party A's Affiliate in PRC, not to merge or associate with
any person, or purchase any Person or invest in any Person;
(k) To immediately notify Party A the occurrence or the probable occurrence of
the litigation, arbitration or administrative procedure related to the
assets, business and income of Party C;
(l) In order to keep the ownership of Party C to all its assets, to execute all
requisite or appropriate documents, do all requisite or appropriate action,
and advance all requisite or appropriate accusation, or make requisite or
appropriate plea for all
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claims;
(m) Without prior written notice by Party A, not to assign stock interests to
shareholders in any form, but upon the request of Party A, to assign all or
part of its assignable profits to their own shareholders;
(n) Upon the request of Hurray! Times Communications (Beijing) Ltd., Party A's
Affiliate in PRC, to commission any person designated by Hurray! Times
Communications (Beijing) Ltd. to be the member of the Board of Directors of
Party C;
Section 2.2 Promises of Party B
-------------------
Party B promises:
(a) Without prior written consent by Party A or Hurray! Times Communications
(Beijing) Ltd., Party A's Affiliate in PRC, not, from the execution date of
this Contract, to sell, transfer, mortgage or dispose in any other form any
legitimate or beneficial interest of equity interest, or to approve any
other security interest set on it, with the exception of the pledge set on
the equity interest of Party B subject to Equity Interest Pledge Contract
of Party B;
(b) To cause the authorized representative(s) commissioned by it not to approve
at the Board of Shareholders to, with no prior written notice by Party A or
Hurray! Times Communications (Beijing) Ltd., Party A's Affiliate in PRC,
sale, transfer, mortgage or dispose in any other form any legitimate or
beneficial interest of equity interest, or to approve any other security
interest set on it, with the exception of the pledge set on the equity
interest of Party B subject to Equity Interest Pledge Contract of Party B;
(c) To cause the authorized representative(s) commissioned by it not to approve
at the Board of Shareholders Party C to, with no prior written notice by
Party A or Hurray! Times Communications (Beijing) Ltd., Party A's Affiliate
in PRC, merger or associate with any person, or purchase any person or
invest in any person;
(d) To immediately notify Party A the occurrence or the probable occurrence of
the litigation, arbitration or administrative procedure related to the
equity interest owned by it;
(e) To cause the authorized representative(s) commissioned by it to vote to
approve at Board of Shareholders the transfer of the Purchased Equity
Interest subject to this Contract;
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(f) In order to keep its ownership of the equity interest, to execute all
requisite or appropriate documents, do all requisite or appropriate action,
and advance all requisite or appropriate accusation, or make requisite or
appropriate plea for all claims;
(g) Upon the request of Hurray! Times Communications (Beijing) Ltd., Party A's
Affiliate in PRC, to commission any person designated by Hurray! Times
Communications (Beijing) Ltd. to be the member of the Board of Directors of
Party C;
(h) Upon the request of Party A at any time, to immediately transfer its equity
interest to the representative designated by Party A unconditionally and at
any time, and abandon its prior purchase right of such equity interest
transferring to another available shareholder;
(i) To prudently comply with the terms and conditions of this Contract and
other contracts entered into totally or respectively by Party B, Party C
and Party A and Hurray! Times Communications (Beijing) Ltd., to actually
perform all obligations under these contracts, without doing or otherwise
any action that sufficiently affects the validity and enforceability of
these contracts;
3. Representations and Warranties
------------------------------
Representations and Warranties of Party B and Party C
- -----------------------------------------------------
Dated as of the execution date of this Contract and every transferring date,
Party B and Party C hereby represents and warrants together and respectively to
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Party A as follows:
(a) It has the power and ability to enter into and deliver this Contract, and
any equity interest transferring contract ("Transferring Contract",
respectively) having it as a party, for every single transfer of the
purchased equity interest according to this Contract, and to perform its
obligations under this Contract and any Transferring Contract. Upon
execution, this Contract and the Transferring Contracts having it as a
party constitute a legal, valid and binding obligation of it enforceable
against it in accordance with its terms;
(b) The execution, delivery of this Contract and any Transferring Contract and
performance of the obligations under this Contract and any Transferring
Contract do not: (i) cause to violate any relevant laws of PRC; (ii)
constitute a conflict with its Articles of Association or other
organizational documents; (iii) cause to breach any
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contract or instruments to which it is a party or having binding obligation
on it, or cause to breach any contract or instruments to which it is a
party or having binding obligation on it; (iv) cause to violate relevant
authorization of any consent or approval to it and/or any continuing valid
condition; or (v) cause any consent or approval authorized to it to be
suspended, removed, or into which other requests be added;
(c) Party C bears the kind and sellable ownership of its equity interest in
Party C. Party C does not set any security interest on the said assets,
with the exception of the pledge of equity interests agreed by Party A and
Hurray! Times Communications (Beijing) Ltd., Party A's Affiliate in PRC;
(d) Party C does not have any undischarged debt, with the exception of (i) debt
from its normal business; and (ii) debt having been disclosed to Party A
and having gained written consent from Party A;
(e) Party C abides by all laws and regulations applicable to the purchase of
assets;
(f) No litigation, arbitration or administrative procedure relating to equity
interest, assets of Party C or the corporation is underway or to be decided
or to probably take place.
4. Effective Date
--------------
This Contract shall be effectively dated from the execution date, with the
term of effect as 10 years, and can be extended to another 10 years by the
choice of Party A.
5. Applicable Law and Dispute Resolution
-------------------------------------
Section 5.1 Applicable Law
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The execution, validity, construing and performance of this Contract, and
resolution of the disputes under this Contract, shall be governed by the laws of
PRC.
Section 5.2 Dispute Resolution
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Any dispute arising from the construing and performance of this Contract shall
be settled through friendly consultation between the parties of this Contract.
If no settlement can be reached through such consultation within thirty (30)
days after the date of the written notice sent by one party to the other
requesting to settle the dispute, then each of the parties shall have the right
to refer the matter to China International Economic and Trade Arbitration
Commission, for settlement by arbitration according to the its valid arbitration
rules at the appointed time. The arbitration shall take place in Beijing. The
arbitration
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result is final, and is binding to both parties of this Contract.
6. Taxes and Expenses
------------------
Every party shall, according to laws of PRC, bear any and all transferring and
registering taxes, costs and expenses for the preparation and execution of this
Contract and all Transferring Contracts, and those arising from or imposed on
the party, to complete the transactions of this Contract and all Transferring
Contracts.
7. Notices
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This Contract requires that notices or other communications sent by any party or
corporation shall be written in Chinese, and be delivered in person, by mail or
telecopy to other parties at the following addresses or other specified
addresses noticed by other parties to the party. The date deemed to be duly
given or made shall be confirmed as follows: (a) for notices delivered in
person, the date of delivery shall be deemed as having been duly given or made;
(b) for notices delivered by mail, the tenth day of the delivery date of air
certified mail with postage prepaid (as shown on stamp) shall be deemed as
having been duly given or made; and (c) for notices by telecopy, the receipt
date showed on the delivery confirming paper of the relevant document shall be
deemed as having been duly given or made.
Party A: Hurray! Holding Co., Ltd.
Address: Century Yard, Cricket Square, Hutchins Drive, P.O. Box 2681GT, George
Town, Grand Cayman, British West Indies
Party B: Wang Qindai
Address: No.50 Dajue Hutong, Xicheng District, Beijing
Party C: Hurray! Solutions Ltd.
Address: Room 318, Floor 3, No.12 Fuxing Road, Haidian District, Beijing
8. Confidentiality
---------------
Both the parties admit and confirm any oral or written materials exchanged by
the parties relating to this Contract are confidential. Both parties shall
maintain the secrecy and confidentiality of all such materials. Without written
approval by the other party, the party shall not disclose to ay third party any
relevant materials, but with the exception of the following: (a) the public know
or may know such materials (but not disclosed by the party accepting the
materials); (b) materials needed to be disclosed subject to applicable
ordinances ; or (c) any party necessarily discloses materials to its legal or
financial consultant relating the transaction of this Contract, and this legal
or financial consultant
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shall have the obligation of confidentiality similar to that set forth in this
Section. The breach of the obligation of confidentiality by staff or employed
institution of any party shall be deemed as the breach of such obligation by
that party, and by whom the liabilities for breach shall be bored. No matter
this Contract may terminate by any reason, this Section shall continue in force
and effect.
9. Further Warranties
------------------
The Parties to the Contract agree to promptly execute documents reasonably
requisite to the performance of the provisions and the aim of this Contract or
documents beneficial to it, and to take actions reasonably requisite to the
performance of the provisions and the aim of this Contract or actions beneficial
to it.
10. Miscellaneous
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Section 10.1 Amendment, Modification and Supplement
--------------------------------------
Amendment, modification and supplement of this Contract shall be subject to the
written agreement executed by each party.
Section 10.2 Observance of Laws and Regulations
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The parties of the contract shall observe and make sure the operation of each
party fully observe all laws and regulations of PRC officially published and
publicly gainable.
Section 10.3 Entire Contract
---------------
Except for a written amendment, supplement and modification of this Contract
following the date of execution, this contract constitutes the entire contract
of the parties hereto with respect to the object hereof and supersedes all prior
oral or written agreements, representation and contracts with respect to the
object hereof.
Section 10.4 Headings
--------
The headings contained in this Contract are for convenience of reference only
and shall not affect the interpretation, explanation or in any other way the
meaning of the provisions of this Contract.
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Section 10.5 Language
--------
This Agreement is executed by Chinese in three copies.
Section 10.6 Severability
------------
If any one or more provisions of this Contract are judged as invalid, illegal or
non-enforceable in any way according to any laws or regulations, the validity,
legality and enforceability of other provisions hereof shall not be affected or
impaired in any way. All parties shall, through sincere consultation, urge to
replace those invalid, illegal or non-enforceable provisions with valid ones,
and from such valid provisions, similar economic effects shall be tried to reach
as from those invalid, illegal or non-enforceable provisions.
Section 10.7 Successor
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This Contract shall bind and benefit the successor of each party and the
transferee allowed by each party.
Section 10.8 Survival
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(a) Any obligation taking place or at term hereof prior to the end or
termination ahead of the end of this Contract shall continue in force and
effect notwithstanding the occurrence of the end or termination ahead of
the end of the Contract.
(b) Section 5, Section 8 and Section 10.8 hereof shall continue in force and
effect after the termination of this Contract.
Section 10.9 Waiver
------
Any party to this Contract may waive the terms and conditions of this Contract.
Such waiver shall be valid only if set forth in an instrument in writing signed
by the party or parties to be bound thereby. Any waiver by a party to the breach
hereof by other parties in certain situation shall not be construed as a waiver
to any similar breach by other parties in other situation.
IN WITNESS THEREFORE, the parties hereof have caused the Contract Relating to
the Exclusive Purchase Right of An Equity Interest to be executed by their duly
authorized representatives as of the date first written above.
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By: /s/ Wang Qindai
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Party A: Hurray! Holding Co., Ltd.
By:
------------------------------------
Name: Wang Qindai
Title:
By: /s/ Wang Qindai
------------------------------------
Party B: Wang Qindai
By:
------------------------------------
Name: Wang Qindai
By: /s/ Xiang Songzuo
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Party C: Hurray! Solutions Ltd.
By:
------------------------------------
Name: Xiang Songzuo
Title:
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