This document has been translated for information purposes only; the Chinese text is the only valid document.
This
document has been translated for information purposes only; the Chinese text is
the only valid document.
Exhibit
4.9
Xxxx
Xxx
Xxxxxxx
Xxxx
Fujian
WangGang Dredging Construction Co., Ltd.
Fuzhou
Wonder Dredging LLC
(Unoffical
Translation)
1
This
document has been translated for information purposes only; the Chinese text is
the only valid document.
Equity
Interest Pledge Agreement (the “Agreement”), made the 30th day of June, 2010,
among:
The
Pledgor:
Xxxx Xxx (the “Pledgor A”)
whose Identity Number is 000000000000000000.
Xxxxxxx Xxxx (the “Pledgor
B”) whose Identity
Number is 000000000000000000.
The
Pledgee:
Fujian WangGang Dredging Construction
Co., Ltd. ( the “Pledgee” )
Address:
00xx Xxxxx, Xxxxxxxxx Xxxxx, 000 Xxxxxx Xxxx, Xxxxxx Xxxx, Xxxxxx Legal
Representative: XXX Xxxx
And
Fuzhou Wonder Dredging LLC
(“Party C”) whose
legal representative is XXX Xxxx, at Suite 1705 of 16th Xxxxx, Xxxxxxxxx Xxxxx,
000 Xxxxxx Xxxx, Xxxxxx Xxxx, Xxxxxx.
As used
in this Contract, Pledgor A, Pledgor B, the Pledgee and Party C is “the
Pledgor”, “Pledgee”,“the Party” respectively, and “Parties to the Agreement” in
all. The Pledgor A and the Pledgor B are the “Pledgors” in all.
Whereas:
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1.
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Party
C is a limited company legally registered and validly existing under the
laws of People’s Republic of China (PRC) with registered capital
RMB 6,000,000.00, to which the Pledgor A contributes RMB 5,460,000.00
and holds ninety-one percent (91%) of equity interest in Party C and the
Pledgor B contributes RMB 540,000.00 and holds nine (9%) percent of equity
interest in Party C.
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2
This
document has been translated for information purposes only; the Chinese text is
the only valid document.
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2.
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“June
30, 2010, the Pledgee, Party C and Fujian Xing Gang Port Service Co., Ltd.
(the “Fujian Xing Gang”) entered into the Contracted Management Agreement.
(The “Management Agreement”) which stipulates that Fujian Xing Gang is
contracted to the Pledgee for management and the Pledgee shall take full
charge of their operation and
management.
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3.
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June
30, 2010, the Pledgee and Party C entered into the Contract Relating to
the Exclusive Purchase Right of Equity Interest (“Purchase Agreement )
which stipulates that according to the Purchase Agreement the Pledgee or
one or more persons designated by the Pledgee (the “Designated Person”)
have the exclusive right to purchase the equity interest in Fujian Xing
Gang, provided that the transfer of the equity interest will not adversely
affect Fujian Xing Gang’s
business.
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4.
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In
May 27, 2010, Fujian Xing Gang’s Board of Shareholders made the Resolution
relating to the dividend distribution of RMB 350,803,477 (the “Amount”)
and Party C issued an Guaranty (the “Guaranty”) confirming that Party C
will not draw dividend from the
Amount.
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5.
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In
order to secure the performance of Party C and Fujian Xing Gang’s
obligations in Management Agreement, Purchase Agreement (“Two
Agreements”) and to secure the performance of Party C’s Guaranty, the
Pledgors agree to pledge one hundred percent (100%) of their equity
interest held in Party C (the “Pledged Equity Interest”) to the Pledgee
.
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NOW
THEREFORE, the Parties to the Agreement hereby agree as follows:
1.
The Pledgors
1.1 The
Pledgors to this Agreement means Pledgor A and Pledgor B. The Pledgors take
joint and several liability for the obligations under this Agreement and benefit
jointly from the rights under this Agreement.
3
This
document has been translated for information purposes only; the Chinese text is
the only valid document.
2.
The Pledged Equity Interest
2.1 The
Pledged Equity Interest is the rights of holders of equity interest in Party C,
Pledgor A and Pledgor B, producing from the RMB 6,000,000.00 of capital
contributions.
3.
The Debts to be Secured
3.1 The
debts under the Management Agreement which entered into by the
Pledgee, Party C and Fujian Xing Gang on June 30, 2010, including the fees
for contracted management which shall be paid by Fujian Xing Gang to the Pledgee
(the “Fees”), the losses sustained by the Pledgee if the payment of the Fees is
delayed and the expense of exercising the right of pledge by the Pledgee under
this Agreement.
3.2 The
debts under the Purchase Agreement entered into by the Pledgee and Party C on
June 30, 2010, including the whole or part of equity interest in Fujian Xing
Gang which the Pledgee has the right to purchase, the loss endured by the
Pledgee for delayed performance by the other parties of Purchase
Agreement and the expense of exercising the right of pledge by the
Pledgee under this Agreement.
3.3 The
debts under the Guaranty, dated June 13, 2010, including the promise issued by
Party C, the loss endured by the Pledgee if the promise is violated by Party C
and the expense of exercising the right of pledge by the Pledgee under this
Agreement.
4.
Effective Date and the Term of Pledge
4.1 This
Agreement comes into effect upon signing by the Parties and being lodged in
Fuzhou Administration Department for Industries and Commerce and terminates
upon the earlier of (i) the purchase of the entire equity interest by
Pledgee pursuant to the terms of the Purchase Agreement or (ii)
20 years after the date hereof. . The 20 year initial
term of this Agreement shall be continuously extended for consecutive additional
20 year periods in the event that the entire equity interest is not purchased by
Pledgee or Designated Person pursunat to the Purchase Agreement prior to the
expiration of the term.
4
This
document has been translated for information purposes only; the Chinese text is
the only valid document.
4.2 In
the event that it is failure to lodge the pledge of equity interest in Fuzhou
Administrative Department of Industries and Commerce (the “Department”), the
Pledgee shall still have the priority to receive the payment by the proceeds of
disposal of pledged equity interest.
4.3
Within thirty working days upon the execution of this agreement, the
Pledgors should complete the lodge, ie cause the pledge to be registered in the
Department and the certificate of registration of the Pledged Equity Interest
(the “Certificate”) to be issued. The Pledgor should deliver the Certificate to
the Pledgee in three days after it has been issued.
5.
Exercise the Right of Pledge
5.1
During the term of the pledge, in the event that Party C and Fujian Xing Gang
have not fulfilled the obligations under the Two Agreements, according to the
terms of this Agreement, the Pledgee has the right to dispose the Pledged Equity
Interest; The Pledgee shall notify the Pledgors about their violation of the
Agreement when exercising the right of pledge.
5.2
According to Clause 5.1 the Pledgee may exercise the right of the pledge in any
time when or after the notice about the violation of the Agreement has been
delivered.
5.3 The
Pledgee is entitled to dispose the Pledged Equity Interest, pursuant to the
legal procedure, by auction, sale, or evaluation in terms of money and have the
priority in receiving the payment from the proceeds of auction and
sale.
5.4 The
Pledgors should provide necessary assistance to, and should not interfere with,
the Pledgee in disposing the Pledged Equity Interest according to the Agreement
and shall assist the Pledgee to realize the right of pledge.
5
This
document has been translated for information purposes only; the Chinese text is
the only valid document.
6.
The Promises From the Pledgors and the Party C
6.1
In order to secure the performance of the Agreement by Party C, the Pledgors, as
the holders of equity interest in Party C, promise to the Pledgee:
6.1(1)
Unless agreed by the Pledgors and the Pledgee, during the Term of Pledge, the
Pledgors should not assign the whole or part of the equity interest held by him
in Party C, nor shall they create pledge, security in any other methods or set
any other real rights granted by security on the Pledged Equity
Interest.
6.1(2)
Without prior written consent by the Pledgee, not to change the Constitution of
Party C in any methods.
6.1(3)
Without prior written consent by the Pledgee, the Pledgors guarantee that they
shall not raise any litigations or arbitrations or agree to settle the disputes
through negotiations in the litigations or arbitrations in which they are
involved.
6.1(4)
Without prior written consent by the Pledgee, the Pledgors should not increase
or decrease the registered capital of the Party C, nor should they change the
proportion of the equity interest or change the form of the capital
contributions in Party C.
6.1(5)
Following kind finance and business standard and tradition, to maintain the
existence of the Party C, prudently and effectively operate business
affairs;
6.1(6)
Without prior written consent from the Pledgee, from the signing date of this
Contract, the pleadgors shall not at any time lead the Board of Directors to
approve to sale, transfer, mortgage or, in any other forms, dispose Party C’s
assets, legal benefit from the business conduct and credit; or to approve to set
any other security interest on it, with the exception of the normal business
conduct;
6
This
document has been translated for information purposes only; the Chinese text is
the only valid document.
6.1(7)
Without prior written consent by the Pledgee, before all the equity interest
held by Party C in Fujian Xing Gang ( “Party C’s Equity Interest” ) has been
transferred to the Pledgee or the Designated Persons, the Pledgors should not
dispose, in any forms, the equity interest held by the Pledgors in Party C (
“Pledgors’ Equity Interest”) and Party C’s equity interest, including without
limitation, transfer, pledge the equity interest or set up any right of claim on
them. The Pledgors guarantee that no Resolutions of Party’s Board of
Shareholders or Board of Directors will be made if such Resolutions adversely
affect the Pledgee to exercise the rights under Pledgors’ Equity Interest and
Party C’s Equity Interest, including without limitation, transfer, pledge the
equity interest or set up any right of claim on them.
6.1(8)
Without prior written consent by the Pledgee, the representatives of Party C’s
Board of Directors shall not make the resolution of
dividend distribution.
6.1(9)
Without prior written consent by the Pledgee, the Pledgors shall not conduct any
actions to lead Party C to take part in the merger and acquisition with any
enterprise, or lead Party C to be liquidated, terminated, or
dissolved.
6.1(10)
Without prior written consent by the Pledgee, the Pledgors shall not make Board
of Shareholders’ Resolution to approve Party C to have any debt, or
to create, success any debts or to secure any debt, except the debts in normal
business conducts.
6.1(11)
The Pledgors agree to appoint the persons nominated by the Pledgee to act
as all the directors of Party C and urge the Board of Directors of Party C to
appoint the persons nominated by the Pledgee to act as the General Manager,
Chief Finance Officer and other supervisors of Party C, who will perform their
responsibilities pursuant to the Companies Law of PRC and the Constitution of
Party C. But the nominees should be qualified persons under the stipulations
about Directors, Generals Managers, Chief Financial Officer and other senior
officers to the laws of PRC.
7
This
document has been translated for information purposes only; the Chinese text is
the only valid document.
6.1(12)
The Pledgors agree to irrevocably bestow voting right and other rights of
holders of equity interest to the Pledgee or the Designated Person.
6.1(13)The
Pledgors agree that all the funds transferred by Fujian Xing Gang or Party C to
the account of the Pledgors shall be returned to the Pledgee. All the
profit of Fujian Xinggang Party C belongs to the
Pledgee.
6.1(14)When
the Pledgee exercise the Right of Pledge to this Agreement, the Pledgors shall
waive the preemptive right of the Pledged Equity Interest.
6.2
Party C Promise
6.2(1)
Without prior written consent from the Pledgee, Party C shall not distribute
dividend to the equity interest holders, or sell, transfer, gift, mortgage or
dispose of its assets in any other ways.
6.2(2)
Without prior written consent from the Pledgee, Party C should not terminate the
Two Agreements, not should he enter into any contract which will adversely
affect the performance of Two Agreements by it with any
person.
6.2(3)
Without prior written consent from the Pledgee, Party C should not borrow from
the other person or take secure for the debts of the other person, nor should it
take any security liability for the event outside the normal business conduct of
Party C.
6.2(4)Without
prior written consent from the Pledgee, Party C shall not take part in the
merger and acquisition with other enterprises.
6.2(5)Without
prior written consent from the Pledgees, Party C shall not transfer its
assets to the account of any other enterprises or person.
8
This
document has been translated for information purposes only; the Chinese text is
the only valid document.
6.2(6)Without
prior written consent from the Pledgee, Party C shall not assist the holders of
equity interest to assign the equity interest held by them.
6.2(7)Without
prior written consent from the Pledgee, Party C shall not waive any credit or
any benefit.
6.2(8)
Party C should execute any decision made by the Pledgee, the holder of equity
interest in Party C, when the Pledgee exercise the right of pledge.
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7.
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Breach
of Contract
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7.1
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Any
loss sustained by one Party due to any misleading or false representation,
(whatever fraudulent or not), which leads to non-performance or partial
non-performance, such breaching Party shall bear legal liabilities
according to the laws and be liable for all losses sustained by the
non-defaulting party(s) due to such
breach.
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8.
Particular Stipulations
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8.3
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This
Agreement shall be binding on the successors of
Pledgors.
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9.
Governing laws and settlement of the disputes
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9.1
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The
execution, validity, performance, interpretation and settlement of
disputes shall be governed by PRC
laws.
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9.2
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If
any disputes arise out of performance of this Agreement, the Parties shall
firstly settle such disputes through friendly negotiations. Should such
disputes fail to be settled through negotiation within 20 days after the
disputes arise, each party may submit such disputes to the court with
jurisdiction.
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9
This
document has been translated for information purposes only; the Chinese text is
the only valid document.
10.
Miscellaneous Provisions
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10.1
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The
parties to this Agreement agree that all the business materials relating
to the performance of the Two Agreements are confidential and should not
be disclosed to the third party unless the disclosure of materials is
required by the PRC laws or administration rules and regulations or by
supervising authority.
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10.2
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Notices
or other communications required to be delivered by any party pursuant to
this Agreement shall be written. Any party should inform the other parties
if its address, contact number or fax number has been changed. If such
obligation is failure to be performed, the notice shall deemed to be duly
served when it is delivered to the new physical address or sent to the new
fax number known by other
parties.
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10.3
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The
amendments (if any) duly executed by the Parties shall be part of this
Agreement and shall have the same legal effect as this
Agreement.
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10.4
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This
Agreement is made in eight (8) originals in Chinese, of which each Party
shall hold two. Each original has the same
validity.
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| Pledgors | ||
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Xxxx
Xxx
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By
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/s/Xxxx Xxx
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Xxxxxxx
Xxxx
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By
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/s/ Xxxxxxx Xxxx
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Fujian
WangGang Dredging
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Construction
Co., Ltd. /seal/
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By
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/s/ Lin Bin
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| Name: | ||
| Title: | ||
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Fuzhou
Wonder Dredging
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Co.,
Ltd. /seal/
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By
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/s/Xxxx Xxx
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| Name: | ||
| Title: | ||
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