Loan Agreement
Exhibit 4.12
English Translation
This Amended and Restated Loan Agreement (hereinafter referred to as this “Agreement”) is entered into on this 15th day of February, 2016 in Chaoyang District of Beijing, the People’s Republic of China (“China” or the “PRC”) by and between:
WeiMoSanYi (Tianjin) Technology Co., Ltd. (hereinafter referred to as “WeiMoSanYi Technology”), a limited liability company incorporated and existing under the laws of the People’s Republic of China (hereinafter referred to as the “PRC”) with its principal business address at Room 2-3111, Xx. 00 Xxxxxx Xxxxx Xxxx, Xxxxxxx Xxxxxxx Logistics and Processing Zone;
Xxxxx Xxx (hereinafter referred to as the “Borrower”), a Chinese citizen with the ID Card No. ##################, whose residence locates at ##################.
(WeiMoSanYi Technology and the Borrower hereinafter individually referred to as a “Party” and collectively the “Parties”.)
Whereas,
1. The former shareholder of Ku6 (Beijing) Cultural Media Co., Ltd. (hereinafter referred to as the “Company”) transferred part of equity interest of the Company to the Borrower on the 15thday of February, 2016. The registered capital of the Company is RMB1 million, and the Borrower shall pay the former shareholder RMB 500,000 as the consideration for the share transfer thereof.
2. Given the Borrower does not have enough funds to pay the amount of share transfer price, the Borrower seeks a loan from WeiMoSanYi Technology and WeiMoSanYi Technology agrees to lend such amount to the Borrower; and
3. The Borrower signed an exclusive call option agreement (hereinafter referred to as the “Call Option Agreement”) with WeiMoSanYi Technology on February 15, 2016, under which WeiMoSanYi Technology or a third party designated by WeiMoSanYi Technology has an exclusive option to acquire all or any part of the equity interest held by the Borrower in Ku6 Information Technology at any time.
Accordingly, through friendly consultation, based on the principle of equality and mutual benefit, the parties reached the following agreement in respect to the loan issue in accordance with China law:
1. Type of the Loan: Cash
2. Loan Amount: RMB 500,000 (the “Loan”)
The Parties hereby confirm that WeiMoSanYi Technology has provided to the Borrower, and the Borrower has received from WeiMoSanYi Technology the Loan as of the execution date hereof.
3. Loan Interest: Zero interest rate
4. Loan Term
The loan term shall commence from the execution date hereof and shall continue and last until the date of repayment of the Loan by the Borrower as requested by WeiMoSanYi Technology (the “Loan Term”).
5. Purpose of the Loan
The Borrower shall not use the Loan for any purpose other than paying share purchase price.
6. Taxes
Any and all taxes in relation to the Loan shall be borne by WeiMoSanYi Technology.
7. Repayment of the Loan
7.1 WeiMoSanYi Technology may, at any time during the Loan Term by delivery of a repayment notice (the “Repayment Notice”) to Borrower thirty (30) days in advance, demand at its absolute discretion that the Borrower shall repay the Loan in whole or in part.
7.2 Upon expiry of the thirty (30) day period as set forth in the Repayment Notice, the Borrower shall repay the Loan in cash, or make such repayments in other forms as decided by the Board of Directors (or Executive Director) of WeiMoSanYi Technology by means of a Board (or Executive Director) resolution duly adopted in accordance with its Articles of Association and the applicable laws and regulations.
7.3 Without the prior written consent of WeiMoSanYi Technology, the Borrower shall not repay the loan in whole or in part to WeiMoSanYi Technology during the Loan Term.
8. Representations and Warranties
The Borrower warrants that he is not a director or executive officer of Ku6 Media Co., Ltd., an affiliated company of WeiMoSanYi Technology.
9. Liability for Breach of Agreement
In the event that the Borrower fails to use the Loan according to the agreed purposes, WeiMoSanYi Technology is entitled to withdraw the Loan in whole or in part and claim against Borrower for any losses suffered therefrom by WeiMoSanYi Technology.
10. Dispute Resolution
10.1 This Agreement shall be governed and interpreted by China Law, including but not limited to this Agreement’s execution, performance, validation, interpretation and matters not mentioned herein. Any dispute arising out of the performance of this Agreement shall be settled through friendly negotiation by the Parties; if the disputes cannot be resolved through negotiation upon thirty (30) days after one party raised the negotiation request, such dispute may be submitted for arbitration. Any such dispute shall be submitted to the Beijing Arbitration Commission according to it then effective rules in force for the time being.
10.2 The awards given by Beijing Arbitration Commission are final and binding upon the Parties. The arbitration costs (including but not limited to arbitration charges and attorney’s fees) shall be borne by the losing Party, unless otherwise specified in the given awards.
11. Miscellaneous
11.1 This Agreement shall become effective upon execution by the Parties.
11.2 Neither Party shall amend or terminate this Agreement without the express written consent of the other Party. When any Party demands amending or terminating this Agreement in accordance with the laws and regulations, it shall inform the other Party of its demand in writing on a timely basis, and the Parties shall negotiate and agree on any such amendment or termination in writing.
11.3 The Borrower shall not transfer any of its rights and/or obligations hereunder to any third party without the express written consent of WeiMoSanYi Technology. WeiMoSanYi Technology shall have the right to transfer its rights and/or obligations hereunder to any of its designated third party by delivery of a written notice to the Borrower.
11.4 Anything not covered herein shall be made in a supplementary agreement upon the negotiation of the Parties. Such supplementary agreement shall have the same force and effect with this Agreement.
11.5 This Agreement is made in two (2) counterparts with each of WeiMoSanYi Technology and the Borrower holding one (1) counterpart.
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IN WITNESS WHEREOF, the Parties have caused their authorized representatives to enter into this Agreement as of the date and year first above written.
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WeiMoSanYi Technology |
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WeiMoSanYi (Tianjin) Technology Co., Ltd. |
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/s/ (Seal) |
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Borrower |
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Signed by: |
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/s/ Xxxxx Xxx |
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Name: |
Xxxxx Xxx |
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