Exhibit 10.41

 

Dated  23 August 2011

 

(1)                                          Realphone Technology Co., Ltd (“Mortgagor”)

 

and

 

(2)                                          VODone Limited (“Mortgagee”)

 


 



	
Share Mortgage
    
	
 
    
	
Relating to Shares in the Capital of VODone   Limited
    



 



 











 

 

THIS DEED is made on the 23 August 2011

 

BETWEEN:

 

(1)                                          Realphone Technology Co., Ltd, a limited liability company incorporated in the British Virgin Islands having its registered office at P.O. Box 957, Offshore Incorporations Centre, Road Town, Tortola, British Virgin Islands  (the “Mortgagor”) and

 

(2)                                          VODone Limited a limited liability company incorporated in Bermuda having its registered office at Canon’s Court, 22 Victoria Street, Hamilton HM12, Bermuda (the “Mortgagee”).

 

WHEREAS:

 

(A)                                        By an asset purchase agreement dated 30 September 2010 (the “Agreement”) made by and between Mr. Kuang (as defined below), Mr. Hu (as defined below), Bright Way (as defined below) and OWX HK (as defined below),  OWX HK agreed to buy from Bright Way its assets and business described in the Agreement;

 

(B)                                        Pursuant to the Agreement, Mr. Kuang and Mr. Hu entered into a share pledge (the “Share Pledge”) dated 30 September 2010 in favour of the Mortgagee in respect of 28,694,372 VODone Shares (as defined below) and, in total, 30% of the total issued shares of OWX HK as at the date thereof;

 

(C)                                        By a deed of novation dated 11 October 2010 (the “Deed of Novation”) made by and between OWX HK, the Company (as defined below), the Mortgagee, Bright Way, Mr. Kuang and Mr. Hu, OWX HK agreed, among others, to assign and transfer all rights and obligations under the Agreement to the Company;

 

(D)                                        By a supplementary agreement dated 11 October 2010 (the “Amendment Agreement”), Mr. Kuang, Mr. Hu and the Mortgagee agreed, among others, to amend the Share Pledge so that the pledge given by Mr. Kuang and Mr. Hu to the Mortgagee will be in respect of 28,694,372 VODone Shares and, in total, 30% of the total issued shares of the Company as of 30 September 2010;

 

(E)                                        With the consent of the Mortgagee and the Company, Mr. Kuang and Mr. Hu transferred 28,694,372 VODone Shares and 60 shares of the Company to the Mortgagor on 20 December 2010;

 

(F)                                          Simultaneously with the transfer stated in (E) above, Mr. Kuang, Mr. Hu and the Mortgagor entered into a deed of novation (the “Second Deed of Novation”), by which Mr. Kuang and Mr. Hu agreed among others, to novate all of their respective rights and obligations under (i) the Agreement as amended by the Deed of Novation as well as (ii) the Share Pledge as amended by the Amendment Agreement to the Mortgagor;

 

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(G)                                        Pursuant to a share swap agreement dated the date hereof (the “Share Swap Agreement”) entered into by the Mortgagor, the Mortgagee and CMGE (as defined below), the Mortgagor agreed to sell, and the Mortgagee agreed to purchase, in total, 60  issued shares of the Company, representing approximately 30% of the total issued shares of the Company as the date hereof, to  be satisfied by the Mortgagee procuring CMGE to allot and issue, in total, 18,600,000 shares of US$0.001 each in the share capital of CMGE;

 

(H)                                       60 issued shares of the Company owned by the Mortgagor, which are subject to sale under the Share Swap Agreement, are also subject to the Share Pledge as amended by the Amendment Agreement and the Second Deed of Novation; and

 

(I)                                            Consequently, pursuant to Share Swap Agreement, the Mortgagor and the Mortgagee agreed to terminate the Share Pledge as amended by the Amendment Agreement and the Second Deed of Novation on the date hereof, and the Mortgagor has agreed to enter into this Share Mortgage as security for the performance of its obligations under the Agreement as amended by the Deed of Novation and the Second Deed of Novation  on the terms set out hereinafter.

 

NOW THIS DEED WITNESSES as follows:

 

1.                                               INTERPRETATION

 

1.1                                       Definitions and Construction

 

In this Deed, unless the context requires otherwise:

 

	
“Agreement”
    	
 
    	
the asset purchase agreement dated 30   September 2010 made by and between Mr. Kuang, Mr. Hu, Bright Way and OWX HK, as   amended by the Deed of Novation on 11 October 2010 and the Second Deed   of Novation and any amendments and restatements to the Agreement in force   from time to time;
    
	
 
    	
 
    	
 
    
	
“Bright Way”
    	
 
    	
Bright Way Technology (Hong Kong) Limited, a limited liability company incorporated in Hong Kong having its registered   office at Room 1102-1103, 11/F., Kowloon Building, 555 Nathan Road,   Mongkok, Kowloon, Hong Kong;
    
	
 
    	
 
    	
 
    
	
“CMGE”
    	
 
    	
China Mobile Games and Entertainment Group   Limited, a limited liability company incorporated in the Cayman Islands having   its registered office at P.O. Box 309, Ugland   House, Grand Cayman, KY1-1104, Cayman
    


 

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Islands;
    
	
 
    	
 
    	
 
    
	
“Company”
    	
 
    	
OWX Holding Co. Ltd., a company incorporated in   the British Virgin Islands whose registered address is at P.O.Box 957,   Offshore Incorporations Centre, Road Town, Tortola, British Virgin Islands;
    
	
 
    	
 
    	
 
    
	
“Consideration”
    	
 
    	
the Consideration Shares and HK$19,800,000 payable to Bright Way under   the Agreement;
    
	
 
    	
 
    	
 
    
	
“Consideration Shares”
    	
 
    	
28,694,372 VODone Shares to be allotted and   issued to Mr. Kuang and Mr. Hu under Clause 4.1 of the Agreement,   which have been assigned and transferred to Realphone by Mr. Kuang and Mr. Hu on 20 December 2010;
    
	
 
    	
 
    	
 
    
	
“Dividends”
    	
 
    	
all dividends, interest and other sums which are   or may become payable to the Mortgagor (or its nominee) in its capacity as   holder of the Shares and includes:
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
(a)
    	
the right to receive any and all such sums and   the right to the benefit of all claims in respect of any default in paying   such sums; and
    
	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
(b)
    	
all forms of remittance of such sums and any bank   or other account to which such sums may be paid or credited;
    
	
 
    	
 
    	
 
    
	
“Event of Default”
    	
 
    	
any breach by the Mortgagor of any of its   obligations under the Agreement;
    
	
 
    	
 
    	
 
    
	
“First Release Date”
    	
 
    	
the date which falls within 30 days after the   date the audited accounts of OWX HK for the 2011 financial year are issued by   OWX HK’s auditors;
    
	
 
    	
 
    	
 
    
	
“HK$”
    	
 
    	
Hong Kong dollar, the lawful currency of Hong   Kong;
    
	
 
    	
 
    	
 
    
	
“Hong Kong”
    	
 
    	
the Hong Kong Special Administrative Region of   the People’s Republic of China;
    


 

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“Lock-up Restrictions”
    	
 
    	
the restrictions imposed under clauses 5.1-5.3 of   the Agreement;
    
	
 
    	
 
    	
 
    
	
“Locked-up Shares”
    	
 
    	
the Consideration Shares subject to the Lock-up   Restrictions, being (i) 22,955,498 VODone Shares at the date hereof up   to and including the First Release Date, and (ii) 11,477,749 VODone   Shares for the period from the date immediately after the First Release Date   up to and including the Second Release Date;
    
	
 
    	
 
    	
 
    
	
“Mr. Hu”
    	
 
    	
胡振宁  (holder of   People’s Republic of China Identity Card No. 460024197504132313) of  中國廣東省深圳市福田區花好園B-1座4A;
    
	
 
    	
 
    	
 
    
	
“Mr. Kuang”
    	
 
    	
邝毅勋  (holder of   People’s Republic of China Identity Card No. 440781197703022733) of 中國深圳市南山區海怡東方花園2棟3B;
    
	
 
    	
 
    	
 
    
	
“OWX HK”
    	
 
    	
OWX Hong Kong   Limited, a company incorporated in Hong Kong having its registered office at Room 3006,   Gloucester Tower, The Landmark, 11 Pedder Street, Central, Hong Kong ;
    
	
 
    	
 
    	
 
    
	
“Parties”
    	
 
    	
the Mortgagor   and the Mortgagee; “party” means   any of them;
    
	
 
    	
 
    	
 
    
	
“Power of Attorney”
    	
 
    	
the power of attorney as set out in Clause 11 of   this Deed;
    
	
 
    	
 
    	
 
    
	
“Second Release Date”
    	
 
    	
the date which falls within 30 days after the   date the audited accounts of OWX HK for the 2012 financial year are issued by   OWX HK’s auditors;
    
	
 
    	
 
    	
 
    
	
“Secured Obligations”
    	
 
    	
all obligations (now or at any time hereafter   arising) of the Mortgagor under the Agreement;
    
	
 
    	
 
    	
 
    
	
Share Pledge
    	
 
    	
the share pledge agreement entered by and between   Mr. Kuang, Mr. Hu and the Mortgagee on 30 September 2010, including   the Share Pledge as amended by the Amendment Agreement dated 11   October 2010 and the
    


 

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Second Deed of Novation dated 20   December 2010;
    
	
 
    	
 
    	
 
    
	
“Share Swap Agreement”
    	
 
    	
the share swap agreement entered into by the   Mortgagor, the Mortgagee and CMGE on the date hereof, pursuant to which,   among others, the Mortgagor has agreed to sell, 60 issued shares of the Company to the Mortgagee to be satisfied by the   Mortgagee procuring CMGE to allot and issue, in total, 18,600,000  shares of US$0.001  each in the   share capital of CMGE;
    
	
 
    	
 
    	
 
    
	
“Shares”
    	
 
    	
the relevant number of the Locked-up Shares from   time to time and, where the context permits, include the Dividends and those   stocks, shares, rights, monies and other property referred to in Clause 2.5;
    
	
 
    	
 
    	
 
    
	
“Transfer Forms”
    	
 
    	
an instrument of transfer in respect of the   Shares (in the form annexed hereto as Appendix A or in a form substantially   similar thereto), duly executed in blank;
    
	
 
    	
 
    	
 
    
	
“US$”
    	
 
    	
United States dollar, the lawful currency of the   United States;
    
	
 
    	
 
    	
 
    
	
“VODone”
    	
 
    	
VODone Limited, a limited liability company   incorporated in Bermuda whose shares are listed on the Main Board of The   Stock Exchange of Hong Kong Limited; and
    
	
 
    	
 
    	
 
    
	
“VODone Shares”
    	
 
    	
ordinary shares of HK$0.01 each in the capital of   VODone.
    


 

1.2                                        Successors and Assigns

 

The expressions “Mortgagor” and “Mortgagee” shall where the context permits include their respective successors and permitted assigns and any persons deriving title under them.

 

1.3                                        Miscellaneous

 

In this Deed, unless the context requires otherwise:

 

1.3.1                                       references to statutory provisions shall be construed as references to those provisions as replaced, amended, modified or re-enacted from time to time;

 

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1.3.2                                       words importing the singular include the plural and vice versa and words importing a gender include every gender;

 

1.3.3                                       references to this Deed or the Agreement shall be construed as references to such document as the same may be amended or supplemented from time to time hereafter; and

 

1.3.4                                       unless otherwise stated, references to Clauses are to clauses of this Deed.  Clause headings are inserted for reference only and shall be ignored in construing this Deed.

 

2.                                               MORTGAGE OF SHARES

 

2.1                                        Mortgage

 

In consideration of the Company agreeing paying the Consideration upon the terms and conditions of the Agreement, the Mortgagor as beneficial owner, mortgages, charges and assigns by way of first fixed charge the Shares to the Mortgagee as a continuing security for the due and punctual performance and observance by the Mortgagor of all the obligations of the Mortgagor contained in the Agreement.

 

2.2                                        Deposit of Documents and Notice to Nominee

 

For the purpose of enabling the Mortgagee to exercise its rights under this Deed, the Mortgagor undertakes forthwith upon the execution of this Deed to deposit, or procure that there be deposited with the Mortgagee the certificates in respect of the Shares together with Transfer Forms in respect thereof, duly executed in blank (and the Mortgagee being hereby irrevocably authorised to complete the Transfer Forms with all necessary particulars) and such other documents as the Mortgagee may from time to time reasonably require for perfecting its title to the Shares.

 

2.3                                        Further Assurances

 

For the purpose of securing the Mortgagee’s interest in the Shares and the performance of the Secured Obligations, the Mortgagor shall assist the Mortgagee and take all steps within its power necessary to register the Shares in the Mortgagee’s name or any other name that the Mortgagee may from time to time direct or to perfect the title of the Mortgagee to the Shares or any of them, or to vest or enable the Mortgagee to vest the Shares in the Mortgagee (or its trustees or nominees) or any purchaser, or to exercise any right attaching to the Shares or any of them.

 

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2.4                                       Registration in Name of Mortgagee or its Nominee

 

For the purpose of securing the Mortgagee’s interest in the Shares and the performance of the Secured Obligations, the Mortgagor agrees that at any time the Mortgagee may, at the cost of the Mortgagor, register the Shares or any part thereof in the name of the Mortgagee or its nominee.

 

2.5                                        Dividends and Accretions

 

This Deed shall extend to and include all Dividends (other than those paid to the Mortgagor under Clause 6.1.1) and all stocks, shares (and the Dividends in respect thereof), rights, monies or other property accruing or offered at any time by way of redemption, substitution, bonus, preference, option or otherwise to or in respect of any of the Shares and all allotments, accretions, offers, rights, benefits and advantages whatsoever at any time accruing, made, offered or arising in respect of any of the same and all further shares in the capital of VODone issued subsequent hereto provided that nothing herein shall be construed as placing on the Mortgagee any liability whatsoever in respect of such aforesaid property.  If the Mortgagor shall acquire any such other stocks or shares as aforesaid, it shall forthwith deliver or procure that there be delivered to the Mortgagee the certificates in respect thereof together with Transfer Forms in respect thereof duly executed in blank (and the Mortgagee being hereby irrevocably authorised to complete the Transfer Forms with all necessary particulars) to enable the same to be registered in the name of the Mortgagee or its nominee.

 

2.6                                        No Liability for Calls

 

Nothing in this Deed shall be construed as placing on the Mortgagee any liability whatsoever in respect of any calls, instalments or other payments relating to any of the Shares or any rights, shares or other securities accruing, offered or arising as aforesaid, and the Mortgagor shall indemnify the Mortgagee in respect of all calls, instalments or other payments relating to any of the Shares and to any rights, shares and other securities accruing, offered or arising as aforesaid in respect of any of the Shares.

 

2.7                                        Discharge

 

Upon the discharge of the Secured Obligations, the Mortgagee shall forthwith discharge (and do and procure to be done all acts and things within its power or control to effect the discharge of) the security created by this Deed.

 

3.                                               CONTINUING SECURITY

 

This Deed shall be a continuing security and shall remain in full force and effect until the Secured Obligations have been satisfied in full, notwithstanding the insolvency or liquidation or any incapacity or change in the constitution or status of the Mortgagor or any other person or any intermediate settlement of account

 

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or other matter whatsoever.  This Deed is in addition to, and independent of, any charge, guarantee or other security or right or remedy now or at any time hereafter held by or available to the Mortgagee.

 

4.                                               REPRESENTATIONS AND WARRANTIES

 

4.1                                        The Mortgagor hereby represents and warrants to the Mortgagee that:

 

4.1.1                                       the Mortgagor is the beneficial owner of the Shares which are fully paid up and free from any encumbrances other than the mortgage created hereunder;

 

4.1.2                                       the Mortgagor has good right and title to deposit, mortgage and/or pledge the Shares subject to the mortgage created hereunder;

 

4.1.3                                       this Deed and the Power of Attorney will constitute legal valid and binding obligations of the Mortgagor, in accordance with its terms;

 

4.1.4                                       the execution, delivery and performance of this Deed and the Power of Attorney will not exceed the power granted to the Mortgagor, or violate any provisions of:

 

4.1.4.1                                                any law or regulation in any order or decree of any government authority, agency or court to which it is subject;

 

4.1.4.2                                                the Mortgagor’s Memorandum and Articles of Association;

 

4.1.4.3                                                any mortgage, contract or other undertaking or instrument to which the Mortgagor is a party or which is binding upon it or any of its assets; and

 

4.1.4.4                                                any limitation imposed on borrowing and/or charging by the Mortgagor;

 

4.1.5                                       this Deed is enforceable under the laws of Hong Kong and that all consents, approvals, authorisations, orders and exemptions of any authority, department or agency which are required for or in connection with the execution, delivery, performance, legality or enforceability of this Deed and the Power of Attorney have been obtained and are in full force and effect;

 

4.1.6                                       the Mortgagor is not in default under any agreement to which it is a party or by which it may be bound and no litigation arbitration or administrative proceedings are presently current or pending or threatened which default, litigation arbitration or administrative proceedings, as the case may be, might materially affect its ability to

 

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perform its obligations under this Deed or the Power of Attorney, as the case may be; and

 

4.1.7                                       the Mortgagor hereby acknowledges that the Mortgagee has entered into this Deed in full reliance of the aforesaid representations and warranties, which will be correct and complied with in all respects so long as this Deed shall remain in force, and each of the above representations and warranties will be correct and complied with in all respects so long as the Secured Obligations remains outstanding.

 

5.                                               POWER OF SALE

 

5.1                                        Enforceability

 

Upon the occurrence of an Event of Default, the Mortgagee or its nominee may, after giving written notice to the Mortgagor, sell or dispose of, including but not limited to, where applicable, repurchase and cancel, all or any part of the Shares, and may apply the proceeds of any such sale or disposition in or towards the discharge of the costs thereby incurred and of the Secured Obligations in such manner as it in its absolute discretion thinks fit.

 

5.2                                        Sale of Shares

 

Subject to Clause 5.1 above, the Mortgagee shall be entitled to exercise such power of sale in such manner and at such time or times and for such consideration (whether payable immediately or by instalments) as it shall in its absolute discretion think fit (whether by private sale, public auction or otherwise) and so that the Shares (or any relevant part thereof) may be sold (i) subject to any conditions which the Mortgagee may think fit to impose and, (ii) to any person (including any person connected with the Mortgagor, the Company or the Mortgagee).  Neither the Mortgagee nor its nominee shall be liable for any loss or damage incurred by any such sale or disposal.

 

5.3                                        Dividends

 

At any time after the power of sale has arisen, any Dividends which have been or may be received or receivable by the Mortgagee or any nominee of the Mortgagee may be applied by the Mortgagee as though they were proceeds of sale hereunder.

 

5.4                                        Purchaser Not Bound to Enquire

 

The Mortgagee is authorised to give a good discharge for any moneys received by it pursuant to the exercise of its power of sale and a purchaser shall not be bound to enquire whether the power of sale has arisen as herein provided nor be concerned with the manner of application of the proceeds of sale.

 

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6.                                               DIVIDENDS AND VOTING RIGHTS

 

6.1                                        If the Shares or any of them are registered in the name of the Mortgagor or its nominee, any Dividends received shall be deposited in a bank account in the joint names of the Mortgagor and the Mortgagee, and the Mortgagee agrees with the Mortgagor that, unless an Event of Default or prospective Event of Default occurs:

 

6.1.1                                       subject to Clause 10, the Mortgagee shall hold the Dividends received for the account of the Mortgagor in accordance with its entitlement thereto and shall pay such Dividends accrued from the relevant number of the Locked-up Shares to the Mortgagor at the same time as such number of the Locked-up Shares are released to the Mortgagor in accordance with clause 5.4 of the Agreement; and

 

6.1.2                                       subject to the Lock-up Restrictions, the Mortgagor may exercise all voting and other rights and powers attaching to the Shares.

 

6.2                                        Upon the occurrence of a failure by the Mortgagor to pay, perform, or observe the Secured Obligations in accordance with the terms and conditions of the Agreement, the Mortgagor irrevocably authorises the Mortgagee to sign on its behalf any proxies or other documents which the Mortgagee may require to enable the Mortgagee to exercise such voting and other rights and powers attaching to the Shares.

 

7.                                               UNDERTAKINGS AND COVENANTS

 

7.1                                        The Mortgagor undertakes that for so long as the Agreement remains in existence it will:

 

7.1.1                                       promptly deliver or cause to be delivered to the Mortgagee all notices and other communications which the Mortgagor may receive in respect or in connection with the Shares;

 

7.1.2                                       pay to the Mortgagee upon demand, the amount of all expenses which the Mortgagee may incur in or with a view to perfecting or enforcing this Deed or otherwise in connection herewith;

 

7.1.3                                       promptly pay all calls and other payments which may become due in respect of any of the Shares; and

 

7.1.4                                       not at any time create, assume or permit to arise or subsist any encumbrance whatsoever on any or all of the Shares or transfer sell or otherwise howsoever deal with the Shares except pursuant hereto.

 

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7.2                                        The Mortgagor covenants with the Mortgagee that:

 

7.2.1                                       it will not, without the prior written consent of the Mortgagee, sell, transfer or deal with, or agree (conditionally or unconditionally) to sell, transfer or deal with any of the Shares or any interest in them during the continuance of this Deed; and

 

7.2.2                                       it will not, without the prior written consent of the Mortgagee, create or permit to subsist any mortgage, pledge, lien, charge, assignment by way of security, hypothecation, letter of trust, security interest or any other security agreement or arrangement existing or future upon the Shares or any of them to secure any liability (actual or contingent) except as constituted by this Deed or grant any right or interest in or over the Shares or any of them.

 

8.                                               TAXES AND OTHER DEDUCTIONS

 

All sums payable by the Mortgagor under this Deed shall be paid in full without set-off or counterclaim or any restriction or condition and free and clear of any tax or other deductions or withholdings of any nature.

 

9.                                               COSTS, CHARGES AND EXPENSES

 

9.1                                        The Mortgagor shall be responsible for all stamp duty and registration fees and/or other statutory costs which may be payable for the purpose of properly securing the interests of the Mortgagee under this Deed or the Power of Attorney.

 

9.2                                        All legal and other costs and expenses incurred in connection with the preparation, negotiation and settlement of this Deed shall be for the account of the Mortgagor and the Mortgagor agrees to pay those costs and expenses to the Mortgagee on demand.

 

9.3                                        The Mortgagor agrees to pay or reimburse the Mortgagee on demand for the costs, charges and expenses of the Mortgagee in connection with any consent, exercise or non-exercise of rights (including, without limitation, in connection with the contemplated or actual enforcement or preservation of any rights under documents in connection with this Deed) or any waiver, variation, release, discharge or production of title documents in connection with this Deed or the Shares.  Anything which the Mortgagor is required to do under this Deed must be done at the Mortgagor’s cost.

 

10.                                        SUSPENSE ACCOUNT

 

The Mortgagee may place and keep any monies received by virtue of this Deed (whether before or after the insolvency or liquidation of the Mortgagor) to the credit of a suspense account for so long as the Mortgagee may think fit in order 

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to preserve the rights of the Mortgagee to sue or prove for the whole amount of its claims against the Mortgagor or any other person.

 

11.                                        POWER OF ATTORNEY

 

The Mortgagor hereby irrevocably and by way of security appoints the Mortgagee or its nominee to be its attorney, in its name and on its behalf, to make any alteration or addition as the Mortgagee may require for perfecting its title to the Shares, or any of them, or for vesting or enabling it to vest the Shares in the Mortgagee or any purchaser and otherwise to execute, seal and deliver and otherwise perfect and do any such transfers and other documents and all such deeds, assurances, agreements, instruments, acts and things which may be lawfully required for the full exercise of any of the powers hereby confessed or which may be deemed proper in or in connection with any sale, dispositions or other realisation of the Shares, or any of them.  The Mortgagor hereby ratifies and confirms and agrees to ratify and confirm any instrument, act or thing which any such attorney may lawfully execute or lawfully do.

 

12.                                        PRESERVATION OF THE MORTGAGEE’S RIGHTS

 

12.1                                 The liabilities under this Deed of the Mortgagor and the rights under this mortgage of the Mortgagee, or an attorney appointed under this Deed are not affected by:

 

12.1.1                                the Mortgagee or another person granting time or other indulgence (with or without the imposition of an additional burden) to, compounding or compromising with, or wholly or partially releasing the Mortgagor or another person in any way;

 

12.1.2                                invalidity or unenforceability of any of the obligations or liabilities of the Mortgagor under the Agreement and/or the Share Swap Agreement;

 

12.1.3                                invalidity or irregularity in the execution of this Deed, the Agreement or the Share Swap Agreement by the Mortgagor or any deficiency in the powers of the Mortgagor to enter into or observe its obligations under this Deed, the Agreement or the Share Swap Agreement;

 

12.1.4                                any other charge, guarantee or other security or right or remedy being or becoming held by or available to the Mortgagee or by any of the same being or becoming wholly or partly void, voidable, unenforceable or impaired or by the Mortgagee at any time releasing, refraining from enforcing, varying or in any other way dealing with any of the same or any power, right or remedy the Mortgagee may now or hereafter have from or against the Mortgagor or any other person or the granting of any time or indulgence to the Mortgagor or any other person;

 

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12.1.5                                any variation or modification of the Agreement, the Share Swap Agreement or any other document referred to therein; and/or

 

12.1.6                                any act, omission, event or circumstance which would or may but for this provision operate to prejudice, affect or discharge this Deed or the liability of the Mortgagor hereunder.

 

13.                                        WAIVER AND SEVERABILITY

 

No failure or delay by the Mortgagee in exercising any right, power or remedy hereunder shall impair such right, power or remedy or operate as a waiver thereof, nor shall any single or partial exercise of the same preclude any further exercise thereof or the exercise of any other right, power or remedy.  The rights, powers and remedies herein provided are cumulative and do not exclude any other rights, powers and remedies provided by law.  If at any time any provision of this Deed is or becomes illegal, invalid or unenforceable in any respect under the law of any jurisdiction, the legality, validity and enforceability of such provision under the law of any other jurisdiction, and of the remaining provisions of this Deed, shall not be affected or impaired thereby.

 

14.                                        NOTICES

 

14.1                                 Delivery

 

Each notice, demand or other communication to be given or made under this Deed shall be in writing and delivered or sent to the relevant party at its address or fax number set out below (or such other address or fax number as the addressee has by five (5) days’ prior written notice specified to the other party):

 

	
To the Mortgagor:
    	
 
    
	
 
    
	
Address
    	
:
    	
深圳市福田區景田南香蜜三村香悅閣17E
    
	
 
    
	
Fax number
    	
:
    	
 
    	
 
    
	
 
    
	
Attention  
    	
:
    	
Board of directors
    
	
 
    
	
To the Mortgagee:
    	
 
    
	
 
    
	
Address
    	
:
    	
Room 3006, Gloucester Tower, The Landmark,   11 Pedder Street, Central, Hong Kong
    
	
 
    
	
Fax number
    	
:
    	
+852 2869 8960
    
	
 
    
	
Attention
    	
:
    	
Board of directors
    
						


 

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14.2                                 Deemed Delivery

 

Any notice, demand or other communication so addressed to the relevant party shall be deemed to have been delivered (a) if given or made by letter, when actually delivered to the relevant address, and (b) if given or made by fax, when despatched and the facsimile transmission was confirmed as sent by the originating machine.

 

15.                                        GOVERNING LAW AND JURISDICTION

 

This Deed and the rights and obligations of the parties hereunder shall be governed by and construed in accordance with the laws of Hong Kong and the Parties hereby irrevocably submits to the non-exclusive jurisdiction of the courts of Hong Kong.

 

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IN WITNESS WHEREOF this Deed has been executed by the Parties and is intended to be and is hereby delivered on the day and year first above written.

 

 

	
THE MORTGAGOR
    	
)
    	
For and on behalf of
    
	
 
    	
)
    	
Realphone Technology Co., Ltd
    
	
THE COMMON SEAL of
    	
)
    	
(Sd.) ZHENG Hua
    
	
Realphone Technology Co., Ltd
    	
)
    	
Authorised Signature(s)
    
	
was affixed to this Deed
    	
)
    	
 
    
	
in the presence of:
    	
)
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
THE MORTGAGEE
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
THE COMMON SEAL of
    	
)
    	
For and on behalf of
    
	
VODone Limited
    	
)
    	
VODone Limited
    
	
was affixed to this Deed
    	
)
    	
(Sd.) Hendrick SIN
    
	
in the presence of:
    	
)
    	
Authorised Signature(s)
    
	
(Sd.) YAN Man Sing Frankie
    	
 
    	
 
    	
 
    	
 
    
					


 











 

APPENDIX A

 

INSTRUMENT OF TRANSFER

 

We, Realphone Technology Co., Ltd of

 

 

(hereinafter called the “Transferor”) in consideration of

 

 

paid to us by

 

 

(hereinafter called the “Transferee”), do hereby transfer to the said Transferee                    ordinary shares standing in our name in the Register of VODone Limited to hold unto the said Transferee, its Executors, Administrators or Assigns, subject to the several conditions upon which we hold the same at the time of execution hereof.

 

And the said Transferee hereby agrees to take the said shares subject to the same conditions.

 

 

Witness to our hands the                    day of

 

 

	
Witness to the signature of
    	
 
    	
)
    	
For and on behalf of
    
	
 
    	
 
    	
)
    	
 Realphone Technology Co.,   Ltd
    
	
Signature:  
    	
 
    	
)
    	
 
    
	
 
    	
 
    	
)
    	
 
    
	
Name: 
    	
 
    	
)
    	
 
    
	
Address: 
    	
 
    	
)
    	
(Sd.) ZHENG Hua
    
	
 
    	
 
    	
)
    	
Director
    
	
 
    	
 
    	
)
    	
(TRANSFEROR)
    
	
 
    	
 
    	
 
    	
 
    
	
Witness to the signature of
    	
 
    	
)
    	
For and on behalf of
    
	
 
    	
 
    	
)
    	
 
    
	
Signature:  
    	
 
    	
)
    	
 
    
	
 
    	
 
    	
)
    	
 
    
	
Name:
    	
 
    	
)
    	
 
    
	
Address:
    	
 
    	
)
    	
 
    
	
 
    	
 
    	
)
    	
Director
    
	
 
    	
 
    	
)
    	
(TRANSFEREE)