PLEDGE AGREEMENT
PLEDGE
AGREEMENT dated as of December 31, 2007 by and among Jing’xx Xxxx, Xxxxxxx Xxxx
and Xxxxxx Xxxxx (collectively, the “Pledgors”),
PROFESSIONAL OFFSHORE OPPORTUNITY FUND, LTD., Xxxxx Xxxxxxxx, Xxxxx Xxxx,
Xxxxxxx Xxxxx, ANCORA GREATER CHINA FUND, STRATEGIC ALLIANCE FUND, L.P. and
STRATEGIC ALLIANCE FUND II, L.P. (collectively, the “Pledgee”),
and
HUIFENG BIO-PHARMACEUTICAL TECHNOLOGY, INC. (the “Company”).
NOW,
THEREFORE, it is agreed:
For
good
and valuable consideration, the receipt of which is hereby acknowledged, as
collateral security for the due and punctual payment and performance of all
the
Secured Obligations (as defined below), the Pledgors hereby deposit and pledge
with Pledgee the shares of stock indicated on Annex 1 hereto (all such shares,
together with all other shares of stock required to be deposited hereunder
the
“Pledged
Securities”)
and
hereby grants to the Pledgee a first security interest in and a first lien
upon,
and hereby assigns, transfers, pledges and sets over to the Pledgee, all of
Pledgors’ right, title and interest in and to the following (the “Collateral”)
but in
no other assets or property of the Pledgors:
(a) the
Pledged Securities;
(b) all
dividends and interest on the Pledged Securities;
(c) all
proceeds of the Pledged Securities and any of the other Collateral;
(d) all
other
securities, money and other property required to be pledged hereunder, and
all
rights related thereto; and
(e) all
other
rights of the Pledgors with respect to the foregoing Collateral.
Unless
otherwise defined herein, all terms used in this Pledge Agreement shall have
the
same meaning as used in that certain Securities Purchase Agreement dated of
even
date herewith between the Pledgee, the other purchasers identified therein
and
Huifeng Bio-Pharmaceutical Technology Inc., a Nevada corporation (the
“Borrower”),
as
the same may from time to time be amended, restated, supplemented or otherwise
modified (as so amended, restated, supplemented or otherwise modified from
time
to time, the “SPA”),
if
defined therein. As used herein, the term “Secured
Obligations”
shall
mean (i) all obligations of the Pledgors under this Pledge Agreement and
(ii) all obligations of the Borrower, whether for principal, interest or
otherwise, incurred under or in connection with any Transaction
Document.
Section
1. Representations.
The
Pledgors and the Company represent, warrant and covenant, which representations,
warranties and covenants shall survive the execution and delivery hereof, as
follows:
(a) The
Pledged Securities are duly and validly issued and are fully paid and
non-assessable shares of the Borrower.
(b) When
deposited with the Pledgee, the Pledged Securities will be duly and validly
pledged hereunder in accordance with applicable law, and the Pledgors warrant,
covenant and agree to defend the Pledgee’s rights and title in and to the
Pledged Securities against the claims and demands of all persons and
entities.
(c) The
Pledgors are the sole legal and equitable owners of, and have good title to,
all
of the Pledged Securities listed on Annex 1 hereto as being pledged by such
Pledgors, free and clear of all claims, security interests, mortgages, pledges,
liens and other encumbrances of every nature whatsoever, but subject to any
restrictions imposed by the securities laws, except in favor of the Pledgee.
The
Pledgors have full power, authority and legal right to pledge the Pledged
Securities being pledged by such Pledgors as herein provided.
(d) Each
certificate evidencing the Pledged Securities is issued in the name of the
Pledgors as provided in Annex 1 hereto, and each such certificate has been
duly
executed in blank by the Pledgors or has attached thereto an instrument of
transfer or assignment duly executed in blank by the Pledgors, with signatures
appropriately guaranteed with a Medallion Signature Guarantee and accompanied
in
each case by any required transfer tax stamps, all in form and substance
satisfactory to the Pledgee.
(e) The
security interest described in this Pledge Agreement represents a valid first
lien on and security interest in the Collateral superior and prior to the rights
of all third persons or entities.
(f) No
filings or recordings (including, without limitation, under the Uniform
Commercial Code) are necessary to be made in order to perfect, protect and
preserve the lien on and security interest in the Collateral created by this
Pledge Agreement.
(g) The
Pledgors will not (i) sell, assign, transfer or otherwise dispose of any of
the
Collateral, or any rights pertaining thereto, or (ii) create, or suffer to
be
created or to exist, any mortgage, pledge, lien, security interest, charge
or
encumbrance upon the Collateral or any part thereof, or upon the income or
profits thereof or any other rights related thereto, other than pursuant to
(or
as permitted by) this Pledge Agreement, or (iii) directly or indirectly amend,
modify, surrender, compromise, accept prepayment of, or waive any of their
rights under, any of the Pledged Securities (or agree to any of the foregoing)
or take any action to enforce same without the prior written consent of Pledgee.
The issuer of the Pledged Securities by its acknowledgement and consent hereto
agrees that such will not be done without such consent. The Pledgors will,
from
time to time, promptly pay and discharge all taxes, assessments and other
governmental charges, the lien of which would or might be prior or equal to
the
lien of this Pledge Agreement, imposed upon the Collateral or any part thereof
or upon the income or profits therefrom, and also all taxes, assessments and
other governmental charges imposed upon the lien or interest of the Pledgee
under this Pledge Agreement or in respect of the Collateral, and at their
expense will take all such other action as from time to time may be necessary
or
appropriate to preserve the lien of this Pledge Agreement on the Collateral
as a
first lien thereon.
(h) This
Pledge Agreement has been duly authorized by all necessary action on the part
of
the Pledgors and the Pledgors have obtained all consents and approvals
(governmental, third party or otherwise) necessary in connection therewith,
including without limitation all such consents and approvals necessary for
the
Pledgee to sell, assign or otherwise transfer any or all of the Pledged
Securities to a third party as provided in Section 6 hereof (except
to the extent that any such sale may require compliance with the Securities
Act
of 1933 (the “1933
Act”)
or
comparable provisions of any applicable state securities laws). This Pledge
Agreement is the Pledgors’ valid and binding obligation, enforceable against the
Pledgors in accordance with its terms.
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(i) The
Pledged Securities now constitute 28.55% of the issued and outstanding shares
of
the issuer thereof, which shall be no less than a majority of the Company’s
issued and outstanding equity securities, and which constitutes voting control
over the Company’s Board of Directors.
(j) There
is
and will be no voting agreement, preferred shares with supermajority voting
powers, or other agreement or device that would defeat the voting control of
the
Pledged Securities, it being the intention of the Parties that, in the Event
of
Default (as defined in the Transaction Documents), the Pledgees will have
sufficient equity securities to establish voting control over the Company.
(k) The
Pledgors and the Company hereby agree to deliver directly to the Pledgee
immediately all certificates representing any additional shares of stock or
other equity securities of each issuer of Pledged Securities that are hereafter
acquired by Pledgors, each such certificate to be duly executed in blank or
have
attached thereto a stock power duly signed, with a medallion signature
guarantee, in blank by the Pledgors. In the event that additional shares of
stock or other equity securities are issued to the Pledgors but not delivered
immediately to the Pledgee, such issuance shall be invalid and the Pledgee
shall
have the right to an order from a court of competent jurisdiction directing,
by
specific performance, the Company’s transfer agent to cancel the issuance and to
reissue new certificates in the name of the Pledgee to be delivered to the
Pledgee. The Company and the Pledgors shall indemnify the Pledgee for any
expenses in connection with this provision.
(l) The
Company shall issue a “no stop” letter to the Company’s Transfer Agent, in a
form acceptable to the Pledgee, which irrevocably requires the Transfer Agent
to
transfer the Shares and Additional Shares into the name of the Pledgee, or
its
assignee, on the Pledgee’s written direction following an Event of Default and
which irrevocably restricts the Transfer Agent from canceling the Shares and
Additional Shares except at the direction or with the written consent of the
Pledgee.
Section
2. Transfer
of Shares/Sale of Shares; Additional Shares.
(a) During
the existence and continuation of any Event of Default and at such other times
as may be permitted pursuant to the Note (whether or not an Event of Default
exists), the Pledgee may, in its discretion, cause all or any of the Pledged
Securities to be transferred into its name or that of a nominee or nominees
(to
the extent that any of the Pledged Securities are not already so transferred);
provided however that Pledgee, or its nominee or nominees, shall sell the Shares
in a commercially reasonable manner consistent with Pledgee’s business judgment
concerning the timing of such sales and subject to any restrictions on such
sales under the securities laws.
(b) The
Pledgors covenant to deliver to the Pledgee additional shares of the Borrower
to
be Pledged Securities hereunder at all times when the Borrower is required
to do
so by the terms of the Note.
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Section
3. Voting
Rights Prior to Event of Default.
So long
as an Event of Default shall not have occurred and be continuing, the Pledgors
shall be entitled, to the extent not inconsistent with this Pledge Agreement
and
the other Loan Documents:
(a) To
exercise the voting power with respect to the Pledged Securities and for that
purpose, the Pledgee shall execute or cause to be executed from time to time
(at
the expense of the Pledgor) such proxies or other instruments in favor of the
Pledgors or their nominees, in such form and for such purposes as shall be
reasonably required by the Pledgors and as shall be specified in a written
request therefor, to enable it to exercise such voting power with respect to
the
Pledged Securities; provided
that
such
voting power shall not, without the Pledgee’s prior written consent, be
exercised by the Pledgors to (i)
adversely affect the interests of the Pledgee in connection with any of the
Pledged Securities; or (ii)
in any
manner that is inconsistent with the terms of the Note or any other Loan
Document;
(b) To
receive and retain for their own account any and all dividends (other than
stock
dividends and liquidating dividends), interest and principal at any time and
from time to time paid, or declared or permitted to be paid, upon any of the
Pledged Securities; and
(c) To
exercise any conversion, option or similar right permitted by the terms of
any
of the Pledged Securities (subject, however, to Section 4 hereof), but only
with
the prior written consent of the Pledgee.
Section
4. Dissolution
of Issuer; Stock Dividends.
If,
upon the dissolution or liquidation (in whole or in part) of the issuer of
any
of the Pledged Securities, any sum shall be paid upon or with respect to any
of
the Pledged Securities, such sum shall be promptly paid over to the Pledgee,
to
be held by the Pledgee as collateral security for the Secured Obligations.
In
case any stock or similar dividend shall be declared on any of the Pledged
Securities, or any shares of stock or other debt or equity securities shall
be
issued upon conversion of any of the Pledged Securities (or the exercise of
any
option or similar right), or any shares of stock or fractions thereof shall
be
issued pursuant to any stock split or merger involving any of the Pledged
Securities, or any distribution of capital shall be made on any of the Pledged
Securities, or any property shall be distributed upon or with respect to the
Pledged Securities pursuant to the recapitalization or reclassification of
the
capital stock of the issuer of any of the Pledged Securities or the merger
or
reorganization thereof or otherwise, the shares or other property so distributed
shall be delivered promptly to the Pledgee (accompanied, where applicable,
by
proper instruments of assignment and/or stock powers executed by Pledgors in
accordance with the Pledgee’s instructions) to be held by it as collateral
security for the Secured Obligations.
Section
5. Voting
Rights After Event of Default.
If any
Event of Default shall have occurred and be continuing:
(a) the
Pledgee shall thereafter be entitled (i) to exercise the voting power with
respect to the Pledged Securities, (ii) to receive and retain, as collateral
security for the Secured Obligations, any and all dividends, principal and
interest at any time and from time to time declared or paid upon any of the
Pledged Securities, and (iii) to exercise any conversion, option or similar
right permitted by the terms of any of the Pledged Securities; and
(b) any
dividends, principal, interest or other sums paid to the Pledgors upon or with
respect to any of the Pledged Securities shall be received by the Pledgors
on
behalf of and
in
trust for the Pledgee and shall be paid over promptly to the Pledgee, to be
held
by the Pledgee as collateral security for the Secured Obligations.
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Section
6. Certain
Rights of Pledgee After Event of Default.
(a)
If any
Event of Default shall have occurred and be continuing, the Pledgee may exercise
all rights of a secured party under the Uniform Commercial Code and, without
obligation to resort to other security, may at any time and from time to
time:
(i) sell,
resell, assign and deliver, in its discretion, all or any of the Pledged
Securities, in one or more parcels at the same or different times, and all
right, title and interest, claim and demand therein and right of redemption
thereof, on any securities exchange on which the Pledged Securities or any
of
them may then be listed, or at public or private sale, for cash, upon credit
or
for future delivery, and at such price or prices and on such terms as the
Pledgee may determine, the Pledgors hereby agreeing that, upon such sale, any
and all equity or right of redemption of the Pledgors shall be automatically
waived and released without any further action on the part of the Pledgors,
and
in connection therewith the Pledgee may grant options, all without either
demand, advertisement or notice (except as required by law), all of which (to
the extent permitted by law) are hereby expressly waived. In the event of any
such sale, the Pledgee shall give the Pledgors ten days’ prior written notice of
its intention to sell except that, if the Pledgee shall determine, in its
reasonable discretion, that any of the Pledged Securities threatens to decline
speedily in value, any such sale may be made upon three days’ prior written
notice to the Pledgor. Upon each such sale, the Pledgee may purchase all or
any
of the Pledged Securities being sold, free from any equity or right of
redemption, which, upon each such sale, shall be waived and released. Any such
sale or other disposition shall be made in a commercially reasonable manner.
The
proceeds of each such sale shall be applied as provided in Section 7 hereof.
The
balance, if any, remaining after indefeasible cash payment in full of the
Secured Obligations shall be paid over to the Pledgor or their designee. For
the
purposes of this Section 6, an agreement to sell any or all the Pledged
Securities entered into after the applicable notice period specified above
shall
be treated as a sale thereof, and the Pledgee shall be entitled to carry out
such sale pursuant to such agreement and the Pledgors shall not be entitled
to
the return of any of the Pledged Securities subject thereto notwithstanding
the
fact that after the Pledgee shall have entered into any such agreement, the
Pledgors or any affiliate thereof shall have tendered payment in full of the
Secured Obligations; and
(ii) appropriate
and apply all money held as part of the Collateral to the Secured
Obligations.
(b) Pledgors
recognize that, by reason of certain prohibitions contained in the 1933 Act
and
applicable state securities laws, the Pledgee may be compelled, with respect
to
any sale of all or any part of the Collateral, to limit purchasers to those
who
will agree, among other things, to acquire the Collateral for their own account,
for investment and not with a view to the distribution or resale thereof.
Pledgors acknowledge that any such private sale may be at prices and on terms
less favorable to the Pledgee than those obtainable through a public sale
without such restrictions, and, notwithstanding such circumstances, agrees
that
any such private sale shall be deemed to have been made in a commercially
reasonable manner and that the Pledgee shall have no obligation to engage in
public sales and no obligation to delay the sale of any Collateral for
the
period of time necessary to permit the respective issuer thereof to register
it
for public sale.
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Section
7. Certain
Rights of Pledgee Without Event of Default.
From
time to time, the Borrower, in its discretion, may direct the Pledgors to sell
the Pledged Securities, or a portion thereof, in satisfaction of the Secured
Obligations, in whole or in part, even in the absence of any Event of Default
under the Note.
(a) In
connection with any such transaction under this Section 7, Pledgors agree to
cooperate to effectuate any such sale transaction, waive any objections,
covenant not to xxx Pledgee, and, without limiting any other representations
in
this Pledge Agreement, represent that they have received full and adequate
consideration from the Borrower in connection with this provision.
(b) Notwithstanding
the foregoing, the Borrower shall have no right to initiate a transaction under
this Section 7, without the prior written consent of the Pledgee, which may
be
withheld in Pledgee’s sole and absolute discretion. If the Pledgee grants its
consent, Pledgee shall have discretion to supervise and direct the liquidation
of the securities in the name of the Pledgors and shall have the right to
require Borrower and Pledgors to take all reasonable steps necessary to preserve
Borrower’s security interest in the proceeds of any such sale.
(c) In
connection with any sale or disposition of Pledged Securities under this
provision, Pledgors irrevocably appoint Pledgee to act as its attorney-in-fact
as provided under Section
17.
(d) Any
Pledged Securities not sold pursuant to this Section 7 shall remain subject
to
this Pledge Agreement.
Section
8. Distribution
of Proceeds.
Except
as otherwise provided herein, all money that the Pledgee shall receive, in
accordance with the provisions hereof, whether by sale of the Pledged Securities
or otherwise, shall be applied in the following manner: First,
to the
payment of all costs and expenses incurred in connection with the administration
and enforcement of, or the preservation of any rights under, this Pledge
Agreement or any of the reasonable expenses and disbursements of the Pledgee
(including without limitation the fees and disbursements of its counsel and
agents); Second,
to the
payment of the Secured Obligations in such order as the Pledgee may determine;
and Third,
the
balance, if any, to the Pledgors (unless Pledgee shall otherwise be required
or
obligated to pay same (or any portion thereof) to the holder of any other
pledge). Any surplus of such cash or cash proceeds held by Pledgee and remaining
after payment in full of all the Secured Obligations shall be paid over to
Pledgors or to whomsoever may be lawfully entitled to receive such
surplus.
Section
9. Cumulative
Remedies; Standard of Care.
The
rights, powers and remedies (collectively, the “Rights”)
provided herein in favor of the Pledgee shall not be deemed exclusive, but
shall
be cumulative, and shall be in addition to all other Rights in favor of the
Pledgee existing at law or in equity, including (without limitation) all of
the
Rights available to a secured party under the provisions of the Uniform
Commercial Code as adopted in any appropriate jurisdiction. The Pledgee shall
exercise the same care and diligence in holding the Pledged Securities that
the
Pledgee would devote to the custody of securities and certificates owned by
the
Pledgee.
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Section
10. Sale
of Pledged Securities.
If any
Event of Default shall have occurred and be continuing, the Pledgee shall have
the right, for and in the name, place and stead of the Pledgors, to execute
endorsements, assignments or other instruments of conveyance or transfer with
respect to all or any of the Pledged Securities and the other
Collateral.
Section
11. Delay;
Amendment.
No
delay on the part of the Pledgee in exercising any of its rights, or partial
or
single exercise thereof, shall constitute a waiver thereof. No provision of
this
Pledge Agreement shall (as to any Pledgor) be waived, amended, supplemented
or
otherwise modified except by a written instrument executed by such Pledgor
and
the Pledgee. Without limiting the generality of the foregoing, no amendment
of
Annex 1 hereto to reflect a change of ownership of any Pledged Securities shall
require the signature of any Pledgor other than that of the Pledgor whose
securities are being transferred or acquired and no amendment of Annex 1 hereto
to add any Person as a pledgor hereunder shall require the signature of any
Pledgor other than the Person whose securities are being pledged.
Section
12. Survival
of Obligations.
The
obligations of the Pledgors hereunder shall remain in full force and effect
without regard to, and shall not be impaired by: (a)
any
bankruptcy, insolvency, reorganization, arrangement, readjustment, composition,
liquidation or the like of the Pledgors or any issuer of the Pledged Securities;
(b)
any
exercise or non-exercise, or any waiver, by the Pledgee of any right under
or in
respect of the Secured Obligations or any security for any of the Secured
Obligations (other than this Pledge Agreement); or (c)
any
amendment to or modification of the Note, the other Loan Documents, the Secured
Obligations or any security for any of the Secured Obligations (other than
this
Pledge Agreement), whether or not the Pledgors shall have notice or knowledge
of
any of the foregoing.
Section
13. Return
of Pledged Securities.
After
the indefeasible cash payment in full of all of the Secured Obligations, the
Pledgors (except to the extent otherwise contemplated by this Pledge Agreement)
shall be entitled to the return of all of the Pledged Securities and of all
Collateral which have not been used or applied toward the payment in full of
the
Secured Obligations, without representation or warranty of any kind by the
Pledgee (except a representation that Pledgee has not encumbered said Pledged
Securities).
Section
14. Assignment.
This
Pledge Agreement is binding upon the Pledgors, the Pledgee and their respective
executors, administrators, successors and assigns and shall inure to the benefit
of the Pledgee and its successors and assigns. The Pledgors may not assign
their
rights or obligations hereunder without the prior written consent of the Pledgee
and any purported assignment without such consent shall be null and
void.
Section
15. Governing
Law.
THIS
PLEDGE AGREEMENT, THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER, AND
ANY
MATTERS RELATING TO THE PLEDGE AGREEMENT AND THE SECURED OBLIGATIONS, SHALL
BE
CONSTRUED IN ACCORDANCE WITH AND BE GOVERNED EXCLUSIVELY BY THE LAWS OF THE
STATE OF NEW YORK WITHOUT REFERENCE TO CHOICE OF LAW DOCTRINE THAT WOULD RESULT
IN THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION. NO STATE’S LAW EXCEPT
NEW YORK STATE LAW SHALL APPLY TO ANY MATTER ARISING OUT OF OR RELATING TO
THIS
PLEDGE AGREEMNT.
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Section
16. Further
Assurances.
The
Pledgors hereby agrees, at their own expense, to execute and deliver, from
time
to time, any and all further, or other, instruments, and to perform such acts,
as the Pledgee may reasonably request to effect the purposes of this Pledge
Agreement and to secure to the Pledgee the benefits of all rights, authorities
and remedies conferred upon the Pledgee by the terms of this Pledge Agreement.
In the event that at any time hereafter, due to any change in circumstances,
including without limitation, any change in any applicable law, or any decision
hereafter made by a court construing any applicable law, it is, in the opinion
of counsel for the Pledgee, necessary or desirable to file or record this Pledge
Agreement or any financing statement or other instrument or document respecting
this Pledge Agreement or the pledge made hereunder, the Pledgors agree to pay
all fees, costs and expenses of such recording or filing and to execute and
deliver any instruments that may be necessary or appropriate to make such filing
or recording effective. The Pledgee shall have the right to file any such
financing statements without the signature of the Pledgors to the extent
permitted by applicable law.
Section
17. Attorney-in-Fact.
The
Pledgee is hereby appointed the attorney-in-fact of the Pledgors and of the
Company for the purpose of carrying out the provisions hereof and taking any
action and executing any instruments which the Pledgee may deem necessary or
advisable to accomplish the purposes hereof, which appointment as
attorney-in-fact is irrevocable and coupled with an interest. Without limiting
the generality of the foregoing, if any Event of Default shall have occurred,
the Pledgee shall have the right and power to receive, endorse and collect
all
checks made payable to the order of the Pledgors representing any distribution
in respect of the Pledged Securities or the other Collateral or any part thereof
and to give full discharge for the same.
Section
18. Severability.
Any
provision of this Pledge Agreement which is prohibited or unenforceable in
any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provisions in
any
other jurisdiction.
Section
19. Indemnification.
(a)
The
Pledgors agree to indemnify the Pledgee from and against any and all claims,
damages, losses, liabilities and expenses arising out of or in connection with
or resulting from this Pledge Agreement (including without limitation,
enforcement of this Pledge Agreement), unless and to the extent that such
claims, damages, losses, liabilities or expenses are attributable to the
Pledgee’s gross negligence or willful misconduct as determined by a final,
non-appealable judgment of a court of competent jurisdiction.
(b) The
Pledgors will upon demand promptly pay to the Pledgee the amount of any and
all
costs and expenses incurred in connection with the enforcement of any rights
under this Pledge Agreement and the reasonable expenses and disbursements of
the
Pledgee (including without limitation the fees and disbursements of its counsel
and agents).
Section
20. Waiver
of Jury Trial.
EACH OF
THE PLEDGEE AND THE PLEDGORS HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY
WAIVES ANY AND ALL RIGHTS EITHER MAY HAVE TO A TRIAL BY JURY IN RESPECT OF
ANY
LITIGATION BASED ON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS
PLEDGE AGREEMENT, THE INDEBTEDNESS OR ANY OTHER LOAN DOCUMENT, OR ANY COURSE
OF
CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER
VERBAL OR WRITTEN), OR ACTIONS OF THE PLEDGEE, THE PLEDGOR, ANY OTHER PLEDGOR,
THE BORROWER OR ANY OTHER PERSON OR ENTITY.
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Section
21. Notices;
Headings.
(a)
Any
notice or demand upon the Pledgors under this Pledge Agreement shall be deemed
to have been sufficiently given or served for all purposes hereof when mailed,
postage prepaid, by registered or certified mail, return receipt requested,
or
when telegraphed, telecopied or telexed or delivered by hand (or by Federal
Express or similar courier service), to the Pledgors at their addresses set
forth on Annex 1 or at such other address as the Pledgors may designate in
a
writing mailed, delivered, telegraphed, telecopied or telexed to the Pledgee,
provided that in the case where the Pledgee is required to give only three
days’
notice of a proposed sale of the Collateral such notice if delivered by mail
shall not be deemed given until delivered. All notices to the Pledgee provided
for herein shall be deemed to have been given when delivered by mail or by
hand,
or telegraphed, telecopied or telexed, to the Pledgee at its address set forth
below or at such other address as the Pledgee may designate in a writing mailed,
delivered, telegraphed, telecopied or telexed to the Pledgors.
(b) The
descriptive headings of the various provisions of this Pledge Agreement are
inserted for convenience of reference only and shall not affect the meaning
or
construction of any of the provisions of this Pledge Agreement.
(c) As
used
in this Pledge Agreement, “written,” “writing” and variations thereof shall
refer to any form of written communication or a communication by means of telex,
telecopier, telegraph or cable.
Section
22. Jurisdiction.
The
Pledgors hereby agree that any legal action or proceeding against the Pledgors
arising out of or relating to this Pledge Agreement or the other documents
contemplated hereby or referred to herein shall be brought in any court in
the
State of New York in New York City or of the United States of America for the
Southern District of New York, and by execution and delivery of this Pledge
Agreement the Pledgors generally and unconditionally accepts for themselves
and
in respect to their property, generally and unconditionally, the jurisdiction
of
the aforesaid courts. The Pledgors waive any right to stay or to dismiss any
action or proceeding brought before any of said courts on the basis of
forum
non conveniens.
The
Pledgors agree that process against the Pledgors in any such action or
proceeding may be served against the Pledgors by registered or certified mail
sent to the Pledgors at their respective addresses set forth below (or such
other address as Pledgee is notified of pursuant to Section 21 hereof), such
service being hereby acknowledged by the Pledgors as being effective and binding
service in every respect. Nothing herein shall affect the right of the Pledgee
to serve process in any other manner permitted by applicable law or shall limit
the right of the Pledgee to bring actions and proceedings against the Pledgors
in the courts of any other jurisdiction.
Section
23. Counterparts;
Joint and Several Obligations.
This
Pledge Agreement may be executed in any number of counterparts, and by the
different parties hereto on the same or separate counterparts, each of which
shall be deemed to be an original and all of which taken together shall
constitute one and the same agreement. Telecopied signatures hereto shall be
of
the same force and effect as an original of a manually signed
copy.
Section
24. Counsel.
The
Pledgors, the Pledgee and the Borrower represent that they are each represented
by their own independent counsel and that their counsel has had the opportunity
to review this Pledge Agreement and any related documents.
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9
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Section
25. Conflicts.
In the
case of any direct conflict between the provisions of this Pledge Agreement
and
the provisions of the any other pledge agreement with respect to Pledged
Securities pledged under both agreements, those provisions shall control which
afford to the Pledgee the greater rights and security. Without limiting the
generality of the foregoing, the parties hereto acknowledge that the inclusion
of supplemental rights or remedies in favor of the Pledgee with respect to
such
Pledged Securities shall not be deemed a conflict with this Pledge Agreement.
IN
WITNESS WHEREOF, the Pledgors, the Pledgee and the Borrower have duly executed
and delivered this Pledge Agreement as of the date first above
written.
|
PLEDGORS:
|
Address
|
||
|
/s/
Jing’xx Xxxx
|
|||
|
Jing’xx
Xxxx
|
|||
|
|
|||
|
/s/
Xxxxxxx Xxxx
|
|||
|
Xxxxxxx
Xxxx
|
|||
|
|
|||
|
/s/
Xxxxxx Xxxxx
|
|||
|
Xxxxxx
Xxxxx
|
-
10
-
|
PLEDGEE:
|
|||
|
0000
Xxx Xxxxxxx Xxxx, Xxxxx 000
|
|||
|
/s/
Xxxxxx Xxxxxx
|
Xxxxxxxx,
Xxx Xxxx 00000
|
||
|
PROFESSIONAL
OFFSHORE
|
|
||
|
OPPORTUNITY
FUND, LTD.
|
|
||
|
|
|||
|
/s/
Xxxxx Xxxxxxxx
|
|
||
|
Xxxxx
Xxxxxxxx
|
0000
Xxxxxxxx Xxx, X XX00, Xxxxx, XX 00000
|
||
|
|
|
||
|
/s/
Xxxxx Xxxx
|
|
||
|
Xxxxx
Xxxx
|
000
X 000 Xx., Xxx Xxxx, XX 00000
|
||
|
|
|
||
|
/s/
Xxxxxxx Xxxxx
|
|
||
|
Xxxxxxx
Xxxxx
|
000
xxxxx 000, Xxxxxxxxxx XX 00000
|
||
|
|
|
||
|
/s/
Xxxx Xxxxxxxxxx
|
One
Chagrin Highlands2000 Auburn Dr.
|
||
|
ANCORA
GREATER CHINA FUND
|
#300
Xxxxxxxxx, XX 00000
|
||
|
|
|
||
|
/s/
Xxx Xxxxxxx
|
|
||
|
STRATEGIC
ALLIANCE FUND, L.P.
|
00
Xxxx Xx, 00xx Xxxxx, Xxx Xxxx, XX 00000
|
||
|
|
|
||
|
/s/
Xxx Xxxxxxx
|
|
||
|
STRATEGIC
ALLIANCE FUND II, L.P.
|
00
Xxxx Xx, 00xx Xxxxx, Xxx Xxxx, XX
00000
|
-
11
-
BORROWER:
|
/s/
Jing’xx Xxxx
|
|
|
Jing’xx
Xxxx, CEO
|
|
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12
-
Annex
1
to
Pledge
Agreement
Pledged
Securities
|
Pledgor
|
|
Issuer
|
|
Class
|
|
No.
of
Shares
|
|
Cert.
No.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Jing’xx
Xxxx
|
|
|
common
|
|
3,832,860
|
|
2500
|
|
|
|
Xxxxxxx
Xxxx
|
|
|
common
|
|
780,000
|
|
3178
|
|
|
|
Xxxxxx
Xxxxx
|
|
|
common
|
|
660,000
|
|
3179
|
-
13
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