EQUITY PLEDGE AGREEMENT BY AND AMONG ORIENTAL INTRA-ASIA ENTERTAINMENT (CHINA) LIMITED SHUDONG XIA ZHIPING ZHANG ZHIBIN LAI AND WEI GAO
Exhibit
10.8
BY
AND AMONG
ORIENTAL
INTRA-ASIA ENTERTAINMENT (CHINA) LIMITED
XXXXXXX
XXX
XXXXXXX
XXXXX
XXXXXX
XXX
AND
XXX
XXX
This
Equity Pledge Agreement (the “Agreement”) is entered into on the day
of February 3, 2009 by and among the following parties:
|
Pledgee:
|
Oritental
Intra-Asia Entertainment (China)
Limited
|
|
Address:
|
1701
Yingu Mansion, Xx. 0 Xxxxxxxxx Xxxx, Xxxxxxx Xxxxxxxx, Xxxxxxx,
Xxxxx.
|
|
Pledgors:
|
Xxxxxxx
Xxx, Xxxxxxx Xxxxx, Xxxxxx Xxx, and Xxx Xxx having the
addresses below:
|
|
Xxxxxxx
Xxx
|
|
|
Identification
Card
No: 422125721020561
|
|
Address:
|
Room
0-0-000 Xxxxxxxxxxxxxxx,Xxxxxx,
|
|
|
Xxxxxxx
Xxxxxxxx, Xxxxxxx,Xxxxx
|
|
Xxxxxxx
Xxxxx
|
|
|
Identification
Card
No: 11010819690428187X
|
|
Address:
|
Xxxx
00-0-000, Xxxxxxxx, Xxxxxxxxxxxxxx, Xxxxxxx Xxxxxxxx, Xxxxxxx,
Xxxxx
|
|
Xxxxxx
Xxx
|
|
|
Identification
Card
No: 35262719731111001X
|
|
Address:
|
Room
2010, Xx.0 Xxxxxxxx, Xxxxxxxxxxxxxxxx, Xxxxxxxxxxxxx, Xxxxxxx Xxxx,
Xxxxxxx Xxxxxxxx, Xxxxxxx, Xxxxx
|
Xxx
Xxx
|
Identification
Card No:
000000000000000000
|
|
Address:
|
Room
307, Xxxx 0, Xxxxxxxx X0, Xxxxxxxxx #00, Xxxxxxx Xxxx, Xxxxxxx Xxxxxxxx,
Xxxxxxx, Xxxxx
|
|
WHEREAS,
|
|
1.
|
All
of the Pledgors are the citizen of the People’s Republic of China
("PRC”). The Pledgors, collectively, own 100% of the Equity
Interest in China TransInfo Technology Group Co., Ltd. (“Group”). Group
is a company registered in Beijing carrying on traffic information service
business.
|
|
2.
|
The
Pledgee, a wholly foreign-owned company registered in Beijing, PRC, has
been licensed by the PRC relevant government authority to carry on the
business of computer and information technology development. The Pledgee
and Group entered into Exclusive Technical
Development and Consulting Agreement (the “Service Agreement”) on
February 3, 2009.
|
1
|
3.
|
In
order to ensure that the Pledgee collects development and consulting
service fees from Group, the Pledgors are willing to pledge all of their
equity interest in Group to the Pledgee as a security for the Pledgee to
collect technical consulting and service fees under the Service
Agreement.
|
In order
to define each Party’s rights and obligations, the Pledgee and the Pledgors
through mutual negotiations hereby enter into this Agreement based upon the
following terms:
1. DEFINITIONS AND
INTERPRETATIONS
Unless
otherwise provided in this Agreement, the following terms shall have the
following meanings:
|
|
1.1
|
Pledge
means the full meaning assigned to that term in Article
2.
|
|
|
1.2
|
Equity
Interest means all its 100% equity interests in Group legally held by the
Pledgors.
|
|
|
1.3
|
Rate
of Pledge means the ratio between the value of the pledge under this
Agreement and the technical consulting and service fees under the Service
Agreement.
|
|
|
1.4
|
Term
of Pledge means the period provided for under Article 3.2
hereunder.
|
|
|
1.5
|
Service
Agreement means the Exclusive Technical Consulting and Service Agreement
entered into by and between Group and the
Pledgee.
|
|
|
1.6
|
Event
of Default means any event in accordance with Article 7
hereunder.
|
|
|
1.7
|
Notice
of Default means the notice of default issued by the Pledgee in accordance
with this Agreement.
|
2. PLEDGE
|
|
2.1
|
The
Pledgors agree to pledge all of their Equity Interest in Group to the
Pledgee as a guarantee for the technical consulting and service fees
payable to the Pledgee under the Service
Agreement.
|
|
|
2.2
|
Pledge
under this Agreement refers to the rights owned by the Pledgee who shall
be entitled to have priority in receiving payment or proceeds from the
auction or sale of the equity interests pledged by the Pledgors to the
Pledgee.
|
2
3. RATE OF PLEDGE AND TERM OF
PLEDGE
|
|
3.1
|
The
Rate of Pledge
|
|
3.1.1
|
The
Rate of Pledge shall be 100%.
|
|
|
3.2
|
The
Term of Pledge
|
|
3.2.1
|
The
Pledge of the Equity Interest under this Agreement shall take effect as of
the date when the Equity Interest under this Agreement are recorded in the
Register of Shareholder of Group and registered with the competent
Administration for Industry and Commerce. The Term of the
Pledge is the same as the term of Service
Agreement.
|
|
|
3.2.2
|
During
the Term of Pledge, the Pledgors shall not be entitled to dispose of the
Equity Interests.
|
4. PHYSICAL POSSESSION OF
DOCUMENTS
|
|
4.1
|
The
Pledgors shall not be entitled to collect the dividends from the Equity
Interest and any dividends paid upon the Equity Interest shall be
immediately delivered to the
Pledgee.
|
5. WARRANTIES AND REPRESENTATIONS OF THE
PLEDGORS
|
|
5.1
|
The
Pledgors are the legal owners of the Equity
Interest.
|
|
|
5.2
|
Except
as otherwise provided hereunder, the Pledgee shall not be interfered with
by any parties at any time when the Pledgee exercises its rights in
accordance with this Agreement.
|
|
|
5.3
|
Except
as otherwise provided hereunder, the Pledgee shall be entitled to dispose
of or assign the Pledge in accordance with this
Agreement.
|
|
|
5.4
|
The
Pledgors will not pledge or encumber the Equity Interest to any other
person except for the Pledgee.
|
6. COVENANT OF THE
PLEDGORS
|
|
6.1
|
During
the effective term of this Agreement, the Pledgors covenant to the Pledgee
that the Pledgors shall:
|
|
|
6.1.1
|
Comply
with and implement laws and regulations with respect to the pledge of
rights, present to the Pledgee the notices, orders or suggestions with
respect to the Pledge issued or made by the competent authority within
five (5) days upon receiving such notices, orders or suggestions and
comply with such notices, orders or suggestions, or object to the
foregoing matters at the reasonable request of the Pledgee or with consent
from the Pledgee.
|
3
|
|
6.1.2
|
Timely
notify the Pledgee of any events or any received notices which may affect
the Pledgors’ Equity Interest or any part of its right, and any events or
any received notices which may change the Pledgors’ any covenant and
obligation under this Agreement or which may affect the Pledgors’
performance of its obligations under this
Agreement.
|
|
|
6.2
|
The
Pledgors agree that the Pledgee’s right to exercise the Pledge obtained
from this Agreement shall not be suspended or hampered through legal
procedure by the Pledgors or any successors of the Pledgors or any person
authorized by the Pledgors.
|
|
|
6.3
|
The
Pledgors warrant to the Pledgee that in order to protect or perfect the
security over the payment of the technical consulting and service fees
under the Service Agreement, the Pledgors shall execute in good faith and
cause other parties who have interests in the Pledge to execute all the
title certificates, contracts, and or perform and cause other parties who
have interests to take action as required by the Pledgee and make access
to exercise the rights and authorization vested in the Pledgee under this
Agreement, and execute all the documents with respect to the changes of
certificate of the Equity Interest with the Pledgee or the person (natural
person or legal entity) designed by the Pledgee, and provides all the
notices, orders and decisions regarded as necessary by the Pledgee with
the Pledgee within the reasonable
time.
|
|
|
6.4
|
The
Pledgors warrant to the Pledgee that the Pledgors will comply with and
perform all the guarantees, covenants, agreements, representations and
conditions for the benefits of the Pledgee. The Pledgors shall
compensate all the losses suffered by the Pledgee for the reasons that the
Pledgors do not perform or fully perform their guarantees, covenants,
agreements, representations and
conditions.
|
7. EVENTS OF DEFAULT
|
|
7.1
|
The
following events shall be regarded as the event of
default:
|
|
|
7.1.1
|
Group
fails to make full payments of the exclusive technical consulting and
service fees as scheduled under the Service
Agreement;
|
|
|
7.1.2
|
The
Pledgors make any material misleading or fraudulent representations or
warranties under Article 5 herein, and/or the Pledgors are in violation of
any warranties under Article 5
herein;
|
4
|
|
7.1.3
|
The
Pledgors violate the covenants under Article 6
herein;
|
|
|
7.1.4
|
The
Pledgors violate any terms and conditions
herein;
|
|
|
7.1.5
|
The
Pledgors waive the pledged Equity Interest or transfer or assign the
pledged Equity Interest without prior written consent of the
Pledgee;
|
|
|
7.1.6
|
The
Pledgors’ external loan, security, compensation, covenants or any other
compensation liabilities (1) are required to be repaid or performed prior
to the scheduled date; or (2) are due but can not be repaid or performed
as scheduled and thereby cause the Pledgee to deem that the Pledgors’
capacity to perform the obligations herein is
affected;
|
|
|
7.1.7
|
The
Pledgors are incapable of repaying the general debt or other
debt;
|
|
|
7.1.8
|
This
Agreement is illegal for the reason of the promulgation of the related
laws or the Pledgors' incapability of continuing to perform the
obligations herein;
|
|
|
7.1.9
|
Any
approval, permits, licenses or authorization from the competent authority
of the government needed to perform this Agreement or validate this
Agreement are revoked, suspended, invalidated or materially
amended;
|
|
|
7.1.10
|
The
property of the Pledgors is adversely changed and causes the Pledgee to
deem that the capability of the Pledgors to perform the obligations herein
is affected;
|
|
|
7.1.11
|
The
successors or assignees of the Pledgors are only entitled to perform a
portion of or refuse to perform the payment liability under the Service
Agreement;
|
|
|
7.1.12
|
Other
circumstances whereby the Pledgee is incapable of exercising the right to
dispose the Pledge in accordance with the related
laws.
|
|
|
7.2
|
The
Pledgors shall immediately give a written notice to the Pledgee if the
Pledgors are aware of or find that any event under Article 7.1 herein or
any events that may result in the foregoing events have happened or is
going on.
|
|
|
7.3
|
Unless
the event of default under Article 7.1 herein has been solved to the
Pledgee's satisfaction, the Pledgee, at any time when the event of default
happens or thereafter, may give a written notice of default to the
Pledgors and require the Pledgors to immediately make full payments of the
outstanding service fees under the Service Agreement and other payables or
dispose the Pledge in accordance with Article 8
herein.
|
5
8. EXERCISE OF THE RIGHT OF THE
PLEDGE
|
|
8.1
|
The
Pledgors shall not transfer or assign the Equity Interest without prior
written approval from the Pledgee prior to the full repayment of the
consulting and service fees under the Service
Agreement.
|
|
|
8.2
|
The
Pledgee shall give the Notice of Default to the Pledgors when the Pledgee
exercises the right of pledge.
|
|
|
8.3
|
Subject
to Article 7.3, the Pledgee may exercise the right to dispose the Pledge
at any time when the Pledgee gives the Notice of Default in accordance
with Article 7.3 or thereafter.
|
|
|
8.4
|
The
Pledgee is entitled to have priority in receiving payment or proceeds from
the auction or sale of whole or part of the Equity Interest pledged herein
in accordance with legal procedure until the outstanding technical
consulting and service fees and all other payables under the Service
Agreement are repaid.
|
|
|
8.5
|
The
Pledgors shall not hinder the Pledgee from disposing the Pledge in
accordance with this Agreement and shall give necessary assistance so that
the Pledgee could realize his
Pledge.
|
9. TRANSFER OR
ASSIGNMENT
|
|
9.1
|
The
Pledgors shall not donate or transfer his rights and obligations herein
without prior consent from the
Pledgee.
|
|
|
9.2
|
This
Agreement shall be binding upon and inure to the benefit of the successors
of the Pledgors and be effective to the Pledgee and his each successor and
assignee.
|
|
|
9.3
|
The
Pledgee may transfer or assign his all or any rights and obligations under
the Service Agreement to any individual (natural person or legal entity)
at any time. In this case, the assignee shall enjoy and
undertake the same rights and obligations herein of the Pledgee as if the
assignee is a party hereto. When the Pledgee transfers or
assigns the rights and obligations under the Service Agreement, at the
request of the Pledgee, the Pledgors shall execute the relevant agreements
and/or documents with respect to such transfer or
assignment.
|
|
|
9.4
|
After
the Pledgee’s change resulting from the transfer or assignment, the new
parties to the pledge shall re-execute a pledge
contract.
|
6
10. TERMINATION
This
Agreement shall not be terminated until the term of the Services Agreement has
expired and the obligations thereunder are paid off. The Pledgee
shall then cancel or terminate this Agreement within reasonable time as soon as
practicable.
11. FORMALITIES FEES AND OTHER
EXPENSES
|
|
11.1
|
The
Pledgors shall be responsible for all the fees and actual expenditures in
relation to this Agreement, including but not limited to legal fees, cost
of production, stamp tax and any other taxes and charges. If
the Pledgee pays the relevant taxes in accordance with the laws, the
Pledgors shall fully indemnify such taxes paid by the
Pledgee.
|
|
|
11.2
|
The
Pledgors shall be responsible for all the fees (including but not limited
to any taxes, formalities fees, management fees, litigation fees,
attorney's fees, and various insurance premiums in connection with
disposition of Pledge) incurred by the Pledgors for the reason that (1)
the Pledgors fail to pay any payable taxes, fees or charges in accordance
with this Agreement; or (2) the Pledgee has recourse to any foregoing
taxes, charges or fees by any means for other
reasons.
|
12. FORCE MAJEURE
|
|
12.1
|
If
this Agreement is delayed in or prevented from performing in the event of
Force Majeure, only within the limitation of such delay or prevention, the
affected party is absolved from any liability under this
Agreement. Force Majeure, which includes acts of governments,
acts of nature, fire, explosion, typhoon, flood, earthquake, tide,
lightning, war, means any unforeseen events beyond the prevented party’s
reasonable control and cannot be prevented with reasonable
care. However, any shortage of credit, capital or finance shall
not be regarded as an event beyond a Party’s
reasonable control. The Pledge effected by Force Majeure who
claims for exemption from performing any obligations under this Agreement
or under any Article herein shall notify the other party of such exemption
promptly and advice him of the steps to be taken for completion of the
performance.
|
|
|
12.2
|
The
party affected by Force Majeure shall not assume any liability under this
Agreement. However, subject to the party affected by Force
Majeure having taken its reasonable and practicable efforts to perform
this Agreement, the Party claiming for exemption of the liabilities may
only be exempted from performing such liability as within limitation of
the part performance delayed or prevented by Force
Majeure. Once causes for such exemption of liabilities are
rectified and remedied, both parties agree to resume performance of this
Agreement with their best efforts.
|
7
13. DISPUTE
RESOLUTION
|
|
13.1
|
This
Agreement shall be governed by and construed in accordance with the laws
of the PRC.
|
|
|
13.2
|
The
parties shall strive to settle any dispute arising from the interpretation
or performance, or in connection with this Agreement through friendly
consultation. In case no settlement can be reached through consultation,
each party can submit such matter to China International Economic and
Trade Arbitration Commission (“CIETAC”) for arbitration in Beijing under
the current effective rules of CIETAC. The arbitration proceedings shall
be conducted in Chinese. The arbitration award shall be final
and binding upon the parties.
|
14. NOTICE
|
|
14.1
|
Any
notice which is given by the parties hereto for the purpose of performing
the rights, duties and obligations hereunder shall be in
writing. Where such notice is delivered personally, the time of
notice is the time when such notice actually reaches the addressee; where
such notice is transmitted by telex or facsimile, the notice time is the
time when such notice is transmitted. If such notice does not reach the
addressee on business date or reaches the addressee after the business
time, the next business day following such day is the date of
notice. The delivery place is the address first written above
of the parties hereto or the address advised in writing including
facsimile and telex from time to
time.
|
15. EFFECTIVENESS
|
|
15.1
|
This
Agreement and any amendments, modification, supplements, additions or
changes hereto shall be in writing and come into effect upon being
executed and sealed by the parties
hereto.
|
|
|
15.2
|
This
Agreement is executed in English.
|
[Signature Page
Follows]
8
|
The
Pledgee: Oriental Intra-Asia Entertainment (China)
Limited
|
/s/
Xxxxxxx Xxx
Authorized
Representative: Xxxxxxx Xxx
The
Pledgors:
Signature:
/s/ Xxxxxxx Xxx
Name: Xxxxxxx
Xxx
Signature:
/s/ Xxxxxxx Xxxxx
Name: Xxxxxxx
Xxxxx
Signature:
/s/ Xxxxxx Xxx
Name: Xxxxxx
Xxx
Signature:
/s/ Xxx Xxx
Name: Xxx
Xxx
9
