Equity Interest Pledge Agreement
This
Equity Interest Pledge Agreement ("this Agreement") has been
executed by and among the following parties on July 12, 2010 in the People’s
Republic of China (the "China"):
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Party A:
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Henan Sky Fortune Ecological
Technology Co., Ltd. ("Pledgee")
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Address:
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Xxxxx
0, Xxxxxxxx 00, Xx. 0 Xxxxxx Xxxxxx, Xxxx and New Technology Industrial
Development Zone, Zhengzhou, Henan Province,
P.R.China
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：
Party
B: ___________ ("Pledgor"), ID No.:
________________
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Party C:
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Jiaozuo Yida Vegetable Oil Co.,
Ltd.
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Address:
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West
Fengshou Road, Jiaozuo
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In this
Agreement, each of Pledgee, Pledgor and Party C shall be referred to as a
"Party" respectively, and they shall be collectively referred to as the
"Parties".
Whereas:
1.
Pledgor is a citizen of China, and holds certain percentage of the equity
interest in Party C. Party C is a limited liability company registered in
Beijing, China, engaging in the production, storage of edible oil, sale of
feedstuff, and commodity import and export business according to PRC laws. Party
C acknowledges the respective rights and obligations of Pledgor and Pledgee
under this Agreement, and intends to provide any necessary assistance in
registering the Pledge with the competent governmental authorities;
2.
Pledgee is a wholly foreign owned enterprise registered in China. Pledgee and
Party C partially owned by Pledgor have executed an Exclusive Business
Cooperation Agreement on the date of this Agreement;
3. To
ensure that Party C fully performs its obligations under the Exclusive Business
Cooperation Agreement and pay the consulting and service fees thereunder to the
Pledgee when the same becomes due, Pledgor hereby pledges to the Pledgee all of
the equity interest he now and in the future holds in Party C (whether the
percentage of the equity interest is changed or not in the future) as security
for payment of the consulting and service fees by Party C under the Business
Cooperation Agreement.
To
perform the provisions of the Business Cooperation Agreement, the Parties have
mutually agreed to execute this Agreement upon the following terms.
1.
Definitions
Unless
otherwise provided herein, the terms below shall have the following
meanings:
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1.1 Pledge:
shall refer to the security interest granted by Pledgor to Pledgee pursuant to
Article 2 of this Agreement, i.e., the right of Pledgee to be compensated on a
preferential basis with the conversion, auction or sales price of the Equity
Interest.
1.2 Equity
Interest: shall refer to all of the equity interest lawfully now held and
hereafter acquired by Pledgor in Party C (whether the percentage of the equity
interest is changed or not in the future).
1.3 Term
of Pledge: shall refer to the term set forth in Section 3 of this
Agreement.
1.4 Business
Cooperation Agreement: shall refer to the Exclusive Business Cooperation
Agreement executed by and between Party C and Pledgee on the date of this
Agreement (the Attachment
3).
1.5 Event
of Default: shall refer to any of the circumstances set forth in Article 7 of
this Agreement.
1.6 Notice
of Default: shall refer to the notice issued by Pledgee in accordance with this
Agreement declaring an Event of Default.
2. The
Pledge
As
collateral security for the timely and complete payment and performance when due
(whether at stated maturity, by acceleration or otherwise) of any or all of the
payments due by Party C, including without limitation the consulting and
services fees payable to the Pledgee under the Business Cooperation Agreement,
Pledgor hereby pledges to Pledgee a first security interest in all of Pledgor's
right, title and interest, whether now owned or hereafter acquired by Pledgor,
in the Equity Interest of Party C.
3.
Term of Pledge
3.1 The
Pledge shall become effective on such date when the pledge of the Equity
Interest contemplated herein has been registered’ with relevant administration
for industry and commerce (the “AIC”). The Pledge shall be
continuously valid until all payments due under the Business Cooperation
Agreement have been fulfilled by Party C. Pledgor and Party C shall (1) register
the Pledge in the shareholders' register of Party C within 3 business days
following the execution of this Agreement, and (2) submit an application to the
AIC for the registration of the Pledge of the Equity Interest contemplated
herein within 60 business days following the execution of this Agreement.
The parties covenant that for the purpose of registration of the Pledge
(including re-registration of the Pledge when the percentage of equity interest
the Pledgor holds in Party C), the parties hereto and all other shareholders of
Party C shall submit to the AIC the Equity Interest Pledge Contract as set forth
in the Attachment
4 of this Agreement in the form required by the AIC at the location of
Party C which shall truly reflect the information of the Pledge hereunder (the
“AIC Pledge
Contract”). For matters not specified in the AIC Pledge Contract,
the parties shall be bound by the provisions of this Agreement. Pledgor and
Party C shall submit all necessary documents and complete all necessary
procedures, as required by the PRC laws and regulations and the relevant AIC, to
ensure that the Pledge of the Equity Interest shall be registered with the AIC
as soon as possible after filing.
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3.2 During
the Term of Pledge, in the event Party C fails to pay the exclusive consulting
or service fees in accordance with the Business Cooperation Agreement, Pledgee
shall have the right, but not the obligation, to dispose of the Pledge in
accordance with the provisions of this Agreement.
4.
Custody of Records for Equity Interest subject to
Pledge
4.1 During
the Term of Pledge set forth in this Agreement, Pledgor shall deliver to
Pledgee's custody the original capital contribution certificate for the Equity
Interest (the Attachment 2) and the
original shareholders' register containing the Pledge (the Attachment 1) within
five (5) working days from the execution of this Agreement or from completion of
the re-registration of shareholding when percentage of equity interest changed
(in that case, Pledgor shall deliver to Pledgee's custody the updated original
capital contribution certificate for the Equity Interest and the updated
original shareholders' register containing the Pledge as attachment to this
Agreement). Pledgee shall have custody of such original documents during the
entire Term of Pledge set forth in this Agreement.
4.2 Pledgee
shall have the right to collect dividends generated by the Equity Interest
during the Term of Pledge.
5. Representations
and Warranties of Pledgor
5.1 Pledgor
is the sole legal and beneficial owner of the Equity Interest.
5.2 Pledgee
shall have the right to dispose of and transfer the Equity Interest in
accordance with the provisions set forth in this Agreement.
5.3 Upon
execution, this Agreement shall constitute the Pledgor’s legal, valid and
binding obligations in accordance with the provisions herein.
5.4 Except
for the Pledge, Pledgor has not placed any security interest or other
encumbrance on the Equity Interest.
5.5 There
is no pending disputation or litigation proceeding related to the Equity
Interest.
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6. Covenants
and Further Agreements of Pledgor
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6.1
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Pledgor
hereby covenants to the Pledgee, that during the term of this Agreement,
Pledgor shall:
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6.1.1 not
transfer the Equity Interest, place or permit the existence of any security
interest or other encumbrance on the Equity Interest, or disposal of the Equity
Interest in any other means, without the prior written consent of Pledgee,
except for the performance of the Exclusive Option Agreement executed by
Pledgor, the
Pledgee and Party C on the execution date of this Agreement;
6.1.2
comply with the provisions of all laws and regulations applicable to the pledge
of rights, and within five (5) working days of receipt of any notice, order or
recommendation issued or prepared by relevant competent authorities regarding
the Pledge, shall present the aforementioned notice, order or recommendation to
Pledgee, and shall comply with the aforementioned notice, order or
recommendation or submit objections and representations with respect to the
aforementioned matters upon Pledgee's reasonable request or upon consent of
Pledgee;
6.1.3 promptly
notify Pledgee of any event or notice received by Pledgor that may have an
impact on Pledgee's rights to the Equity Interest or any portion thereof, as
well as any event or notice received by Pledgor that may have an impact on any
guarantees and other obligations of Pledgor arising out of this
Agreement.
6.2 Pledgor
agrees that the rights acquired by Pledgee in accordance with this Agreement
with respect to the Pledge shall not be interrupted or harmed by Pledgor or any
heirs or representatives of Pledgor or any other persons through any legal
proceedings.
6.3 To
protect or perfect the security interest granted by this Agreement for payment
of the consulting and service fees under the Business Cooperation Agreement,
Pledgor hereby undertakes to execute in good faith and to cause other parties
who have an interest in the Pledge to execute all certificates, agreements,
deeds and/or covenants required by Pledgee. Pledgor also undertakes
to perform and to cause other parties who have an interest in the Pledge to
perform actions required by Pledgee, to facilitate the exercise by Pledgee of
its rights and authority granted thereto by this Agreement, and to enter into
all relevant documents regarding ownership of Equity Interest with Pledgee or
designee(s) of Pledgee (natural persons/legal persons). Pledgor
undertakes to provide Pledgee within a reasonable time with all notices, orders
and decisions regarding the Pledge that are required by Pledgee.
6.4 Pledgor
hereby undertakes to comply with and perform all guarantees, promises,
agreements, representations and conditions under this Agreement. In the event of
failure or partial performance of its guarantees, promises, agreements,
representations and conditions, Pledgor shall indemnify Pledgee for all losses
resulting therefrom.
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7. Event
of Breach
7.1 The
following circumstances shall be deemed Event of Default:
7.1.1 Party
C fails to fully and timely fulfill any liabilities under the Business
Cooperation Agreement, including without limitation failure to pay in full any
of the consulting and service fees payable under the Business Cooperation
Agreement or breaches any other obligations of Party C thereunder;
7.1.2 Pledgor
or Party C has committed a material breach of any provisions of this
Agreement;
7.1.3 The
Pledgor and Party C fail to register the Pledge in the shareholders' register of
Party C or fail to complete the Registration of Pledge stipulated in Section
3.1;
7.1.4 Except
as expressly stipulated in Section 6.1.1, Pledgor transfers or purports to
transfer or abandons the Equity Interest pledged or assigns the Equity Interest
pledged without the written consent of Pledgee; and
7.1.5 The
successor or custodian of Party C is capable of only partially perform or
refuses to perform the payment obligations under the Business Cooperation
Agreement.
7.2 Upon
notice or discovery of the occurrence of any circumstances or event that may
lead to the aforementioned circumstances described in Section 7.1, Pledgor shall
immediately notify Pledgee in writing accordingly.
7.3 Unless
an Event of Default set forth in this Section 7.1 has been successfully resolved
to Pledgee's satisfaction within twenty (20) working days after the Pledgee
delivers a notice to the Pledgor requesting ratification of such Event of
Default, Pledgee may issue a Notice of Default to Pledgor in writing at any time
thereafter, demanding the Pledgor to immediately dispose of the Pledge in
accordance with the provisions of Article 8 of this Agreement.
8. Exercise
of Pledge
8.1 Prior
to the full payment of the consulting and service fees described in the Business
Cooperation Agreement, without the Pledgee's written consent, Pledgor shall not
assign the Pledge or the Equity Interest in Party C.
8.2 Pledgee
may issue a Notice of Default to Pledgor when exercising the
Pledge.
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8.3 Subject
to the provisions of Section 7.3, Pledgee may exercise the right to enforce the
Pledge at the time when, or at any time after, the issuance of the Notice of
Default in accordance with Section 8.2. Once Pledgee elects to enforce the
Pledge, Pledgor shall cease to be entitled to any rights or interests associated
with the Equity Interest.
8.4 In
the event of default, Pledgee is entitled to dispose of the Equity Interest
pledged in accordance with applicable PRC laws. Only to the extent permitted
under applicable PRC laws, Pledgee has no obligation to account to Pledgor for
proceeds of disposition of the Equity Interest, and Pledgor hereby waives any
rights it may have to demand any such accounting from Pledgee; Likewise, in such
circumstance Pledgor shall have no obligation to Pledgee for any deficiency
remaining after such disposition of the Equity Interest pledged.
8.5 When
Pledgee disposes of the Pledge in accordance with this Agreement, Pledgor and
Party C shall provide necessary assistance to enable Pledgee to enforce the
Pledge in accordance with this Agreement.
9. Assignment
9.1 Without
Pledgee's prior written consent, Pledgor shall not have the right to assign or
delegate its rights and obligations under this Agreement.
9.2 This
Agreement shall be binding on Pledgor and its successors and permitted assigns,
and shall be valid with respect to Pledgee and each of its successors and
assigns.
9.3 At
any time, Pledgee may assign any and all of its rights and obligations under the
Business Cooperation Agreement to its designee(s) (natural/legal persons), in
which case the assigns shall have the rights and obligations of Pledgee under
this Agreement, as if it were the original party to this Agreement. When the
Pledgee assigns the rights and obligations under the Business Cooperation
Agreement, upon Pledgee's request, Pledgor shall execute relevant agreements or
other documents relating to such assignment.
9.4 In
the event of a change in Pledgee due to an assignment, Pledgor shall, at the
request of Pledgee, execute a new pledge agreement with the new pledgee on the
same terms and conditions as this Agreement, and register for change of the same
with the competent AIC.
9.5 Pledgor
shall strictly abide by the provisions of this Agreement and other contracts
jointly or separately executed by the Parties hereto or any of them, including
the Exclusive Option Agreement and the Power of Attorney granted to Pledgee,
perform the obligations hereunder and thereunder, and refrain from any
action/omission that may affect the effectiveness and enforceability thereof.
Any remaining rights of Pledgor with respect to the Equity Interest pledged
hereunder shall not be exercised by Pledgor except in accordance with the
written instructions of Pledgee.
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10. Termination
Upon the
full payment of the consulting and service fees under the Business Cooperation
Agreement and upon termination of Party C's obligations under the Business
Cooperation Agreement, this Agreement shall be terminated, and Pledgee shall
then cancel or terminate this Agreement as soon as reasonably
practicable.
11. Handling
Fees and Other Expenses
All fees
and out of pocket expenses relating to this Agreement, including but not limited
to legal costs, costs of production, stamp tax and any other taxes and fees,
shall be borne by Party C.
12. Confidentiality
The
Parties acknowledge that the existence and the terms of this Agreement and any
oral or written information exchanged between the Parties in connection with the
preparation and performance this Agreement are regarded as confidential
information. Each Party shall maintain confidentiality of all such confidential
information, and without obtaining the written consent of the other Party, it
shall not disclose any relevant confidential information to any third parties,
except for the information that: (a) is or will be in the public domain (other
than through the receiving Party’s unauthorized disclosure); (b) is under the
obligation to be disclosed pursuant to the applicable laws or regulations, rules
of any stock exchange, or orders of the court or other government authorities;
or (c) is required to be disclosed by any Party to its shareholders, investors,
legal counsels or financial advisors regarding the transaction contemplated
hereunder, provided that such shareholders, investors, legal counsels or
financial advisors shall be bound by the confidentiality obligations
similar to those set forth in this Section. Disclosure of any confidential
information by the staff members or agencies hired by any Party shall be deemed
disclosure of such confidential information by such Party, which Party shall be
held liable for breach of this Agreement. This Section shall survive the
termination of this Agreement for any reason.
13. Governing
Law and Resolution of Disputes
13.1 The
execution, effectiveness, construction, performance, amendment and termination
of this Agreement and the resolution of disputes hereunder shall be governed by
the laws of China.
13.2 In
the event of any dispute with respect to the construction and performance of
this Agreement, the Parties shall first resolve the dispute through friendly
negotiations. In the event the Parties fail to reach an agreement on the dispute
within 30 days after either Party's request to the other Parties for resolution
of the dispute through negotiations, either Party may submit the relevant
dispute to the Zhengzhou Arbitration Commission for arbitration, in accordance
with its Arbitration Rules. The arbitration shall be conducted in Zhengzhou, and
the language used in arbitration shall be Chinese. The arbitration award shall
be final and binding on all Parties.
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13.3 Upon
the occurrence of any disputes arising from the construction and performance of
this Agreement or during the pending arbitration of any dispute, except for the
matters under dispute, the Parties to this Agreement shall continue to exercise
their respective rights under this Agreement and perform their respective
obligations under this Agreement.
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14.
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Notices
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14.1 All
notices and other communications required or permitted to be given pursuant to
this Agreement shall be delivered personally or sent by registered mail, postage
prepaid, by a commercial courier service or by facsimile transmission to the
address of such party set forth below. A confirmation copy of each notice shall
also be sent by E-mail. The dates on which notices shall be deemed to have been
effectively given shall be determined as follows:
14.2 Notices
given by personal delivery, by courier service or by registered mail, postage
prepaid, shall be deemed effectively given on the date of delivery or refusal at
the address specified for notices.
14.3 Notices
given by facsimile transmission shall be deemed effectively given on the date of
successful transmission (as evidenced by an automatically generated confirmation
of transmission).
14.4 For
the purpose of notices, the addresses of the Parties are as
follows:
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Party
A:
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Henan Sky Fortune Ecological
Technology Co.,
Ltd.
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Address:
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Xxxxx
0, Xxxxxxxx 00, Xx. 0 Xxxxxx Xxxxxx, Xxxx and New Technology Industrial
Development Zone, Zhengzhou, Henan Province,
P.R.China
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Attn:
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Phone:
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Facsimile:
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E-mail:
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Party
B:
Address:
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电话：
Phone:
Facsimile:
E-mail:
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Party C:
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Jiaozuo Yida Vegetable Oil Co.,
Ltd.
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Address:
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West
Fengshou Road, Jiaozuo
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Attn:
Phone:
Facsimile:
E-mail:
14.5 Any
Party may at any time change its address for notices by a notice delivered to
the other Parties in accordance with the terms hereof.
15. Severability
In the
event that one or several of the provisions of this Contract are found to be
invalid, illegal or unenforceable in any aspect in accordance with any laws or
regulations, the validity, legality or enforceability of the remaining
provisions of this Contract shall not be affected or compromised in any respect.
The Parties shall strive in good faith to replace such invalid, illegal or
unenforceable provisions with effective provisions that accomplish to the
greatest extent permitted by law and the intentions of the Parties, and the
economic effect of such effective provisions shall be as close as possible to
the economic effect of those invalid, illegal or unenforceable
provisions.
16. Attachments
The
attachments set forth herein shall be an integral part of this
Agreement.
17. Effectiveness
17.1 Any
amendments, changes and supplements to this Agreement shall be in writing and
shall become effective upon completion of the governmental filing procedures (if
applicable) after the affixation of the signatures or seals of the
Parties.
17.2 This
Agreement is written in Chinese and English in three copies. Pledgor, Pledgee
and Party C shall hold one copy respectively. Each copy of this
Agreement shall have equal validity. In case there is any conflict
between the Chinese version and the English version, the Chinese version shall
prevail.
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IN
WITNESS WHEREOF, the Parties have caused their authorized representatives to
execute this Equity Interest Pledge Agreement as of the date first above
written.
Party
A: Henan Sky Fortune Ecological Technology Co., Ltd.
：
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By:
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Name:
Feng Hexi
Title：Legal
Representative
乙方：
Party B:
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By:
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Party C: Jiaozuo Yida Vegetable Oil Co.,
Ltd.
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By:
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Name:
Feng Hexi
Title：Legal
Representative
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Attachments:
1. Shareholders'
Register of Jiaozuo Yida Vegetable Oil Co., Ltd.;
2. The
Capital Contribution Certificate for Jiaozuo Yida Vegetable Oil Co., Ltd.;
3. Exclusive
Business Cooperation Agreement;
4. Equity
Interest Pledge Contract used for registration with the AIC
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