SHARE PLEDGE AGREEMENT June 14, 2010 Guangzhou, P.R.C.
June 14,
2010
Guangzhou,
P.R.C.
This
Share Pledge Agreement (hereinafter referred to as the “Agreement”)) is entered
into on 06/14/2010 in Guangzhou, the People’s Republic of China (the “PRC”) by
and between:
Party A: Xxxxxxxx Xx, a male
citizen of PRC with ID Card number 420601196208133553, whose domicile is located
at Xx. 00, Xxxxxxx Xxxx, Xxxxxxxx Xxxxxxxx, Xxxxxxxx, XxxxxXxxx, the PRC,
currently owns 100% shares of Guangzhou Dongfang Hospital Co.,
Ltd.,
Party B:
Guangzhou Shouzhi Medical Institution Management Co. Ltd., a
wholly-foreign owned enterprise registered in Guangzhou, PRC, the registration
number of its Business License is 440101400021828 , and its registered address
is 0xx Xxxxx,
Xx.0, Xxxxx Xxxxx Xxxx, Shijing Street, GuangZhou.
In this
Agreement, Party A and Party B are collectively referred to as the “Parties” and
each as the “Party”.
WHEREAS:
1
Party A is the sole shareholder of Guangzhou Dongfang Hospital Co.,
Ltd. (hereinafter referred to as “Dongfang Hospital”). Party A
legally holds all equity interests of Dongfang Hospital.
2
Dongfang Hospital is an enterprise incorporated and validly existing under
the PRC laws, the registration number of its Business License is 44011100013535,
and its registered address is Xx.0, Xxxxx Xxxxx Xxxx, Xxxxxxx Xxxxxx,
XxxxxXxxx.
2
3
Pursuant to the Exclusive Management Consultancy Agreement (the “Management
Consultancy Agreement”) signed among the Parties and Dongfang Hospital on
[DD/MM/2010], Party A and Dongfang Hospital have entrusted the management and
operation of Dongfang Hospital to Party B on an exclusive basis and will pay a
management fee to Party B accordingly;
4 Pursuant
to the Shareholder’s Rights Proxy Agreement signed between the Parties on
[DD/MM/2010] (the “Proxy Agreement”), Party A has irrevocably entrusted Party B
with the exclusive right to exercise Party A’s rights as a shareholder of
Dongfang Hospital.
5 Pursuant
to the Call Option Agreement executed between the Parties and Dongfang Hospital
on [DD/MM/2010] (the “Option Agreement”), Party A has granted to Party B the
exclusive right to purchase the shares of Dongfang Hospital from Party A, and
Dongfang Hospital has granted to Party B the exclusive right to purchase the
assets of Dongfang Hospital from Dongfang Hospital, all on the terms and
conditions set forth in the Option Agreement.
In order
to ensure that Party A and/or Dongfang Hospital performs all of its/their
obligations under the Management Consultancy Agreement, the Proxy Agreement and
the Option Agreement (collectively referred to as “Domestic Agreements”), Party
A agrees voluntarily to pledge to Party B all of its 100% equity interests in
Dongfang Hospital to guarantee such performance, and Party B agrees to accept
such pledge, subject to the terms and conditions of this Agreement.
Therefore,
in accordance with laws and regulations of the PRC, based on the principle of
equality and mutual benefit, it is hereby agreed as follows
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Article
1 Equity Pledge
In order
to guarantee that Party A and Dongfang Hospital perform all of their obligations
and liabilities to Party B under the Domestic Agreements, Party A hereby pledges
to Party B the Pledged Equity (defined in Article 4) under this Agreement to
Party B and Party B agrees to accept such equity pledge, subject to the terms
and conditions of this Agreement.
Article
2 Representations and Warranties
2.1 Party
A hereby makes the following representations and warranties to Party B as of the
date of this Agreement as follows:
2.1.1
Party A has legal right, power and authority to enter into this Agreement and
perform and observe its obligations hereunder.
2.1.2
Party A has fulfilled necessary internal decision making procedures and
appropriate authorities, and has obtained all necessary consents and approvals
required from any necessary third parties and governmental authorities for
executing and performing this Agreement, and each of (i) the execution and
delivery of this Agreement, (ii) the granting to Party B of the pledge described
in this Agreement, and (iii) the performance by Party A of its obligations
hereunder, does not and will not violate any PRC law and any other contract or
agreement to which he is or may become a party or to which his assets are or may
be bound.
2.1.3
Upon execution, this Agreement consists of the legal, valid and binding
obligations of Party A which are enforceable under this Agreement.
2.1.4
Party A is the sole legal owner of the Pledged Equity, has paid up all its
respective capital contributions in accordance with PRC laws, has obtained the
capital verification report issued by a qualified accounting firm and has the
right to set prioritized right of pledge on the Pledged Equity for
Party B. Other than as set forth in this Agreement, the Pledged Equity is free
of any ownership dispute, lien, encumbrance, security interest, pledge, right of
mortgage or other adverse interest or right in favor of any third person, or any
trust or restrictive use condition, and the Pledged Equity is not sequestrated,
frozen or managed by any third party as a receiver in accordance with law and is
exempt from actions, enforcements, enforcement measures or other legal
proceedings (each, an “Encumbrance”).
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2.1.5
Party A has no continued defaults or potential defaults under this Agreement and
has no such risks to its knowledge. Under the other contracts to which Party A
or Dongfang Hospital is party, neither Party A nor Dongfang Hospital has any
continued defaults or potential defaults that are likely to have an adverse
material impact on either of them.
2.1.6
Each of Party A and Dongfang Hospital has complied with and performed all
relevant obligations under applicable laws and also complied with all applicable
authorizations and permits. Neither Party A nor Dongfang Hospital is involved in
any act that violates relevant laws, regulations or rules or would result in an
adverse material impact upon the legality, validity, performance and
enforceability of this Agreement.
2.1.7
There are no legal proceedings or administrative proceedings initiated against
Dongfang Hospital, Party A or the Pledged Equity by or at any court, arbitration
tribunal or government or other agency, and there are no such risks to Party A’s
knowledge.
2.2 Party
B hereby makes the following representations and warranties to Party A as of the
date of this Agreement as follows:
2.2.1
Party B has the power and legal capacity to enter into this Agreement and
perform and observe its obligations hereunder.
2.2.2
Party B has fulfilled necessary internal decision making procedures and
appropriate authorities, and has obtained all necessary consents and approvals
required from any necessary third parties and governmental authorities for
executing and performing this Agreement, and does not violate any binding or
influential PRC laws and other relevant contracts.
2.2.3
Upon execution, this Agreement consists of legal, valid and binding obligations
of Party B which are enforceable under this Agreement.
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Article
3 Guaranteed Liabilities
Guaranteed
Liabilities under this Agreement mean the obligations or liabilities incurred by
Party A and/or Dongfang Hospital under the Domestic Agreements (including the
renewals of and amendments and supplements to such agreements), including, but
not limited to, the management consulting fees, interests, liquidated damages,
compensation, expenses from realization of claims, losses caused to Party B by
Party A’s or Dongfang Hospital’s breach, indemnification obligations of Party A
or Dongfang Hospital, and all other expenses payable by Party A or Dongfang
Hospital to Party B arising out of the Domestic Agreements.
Article
4 Pledged Equity
Pledged
Equity means 100% of the equity held of record or beneficially by Party A in
Dongfang Hospital, together with all rights and proceeds relating to such
equity.
Article
5 Scope of Guaranteed Liabilities
The scope
of the Guaranteed Liabilities covers the obligations or liabilities incurred by
Party A and/or Dongfang Hospital under the Domestic Agreements (including the
renewals of and amendments and supplements to such agreements), including, but
not limited to, the management consulting fees, interest, liquidated damages,
compensation, expenses from realization of claims, losses caused to Party B by
Party A’s or Dongfang Hospital’s breach of any Domestic Agreement,
indemnification obligations, and all other expenses payable by Party A and/or
Dongfang Hospital to Party B arising out of the Domestic
Agreements.
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Article
6 Pledge Procedures and Arrangements
Party A
shall, within 30 days after the execution date of this Agreement, process the
registration procedures with the Guangzhou Administration for Industry and
Commerce (“Guangzhou AIC”) concerning the Pledged Equity. If the registration
can not be completed due to Guangzhou AIC, Party A shall cause Dongfang Hospital
to record the equity pledge under this Agreement in Dongfang Hospital’s
shareholders’ registry, submit to Party B’s custody the capital contribution
certificate for the Pledged Equity and the shareholder’s registry stamped with
the seal of Dongfang Hospital within 10 days after the date this Agreement is
executed, and process the registration procedure with Guangzhou AIC within 30
days upon Guangzhou AIC acceptance of such registration. Except as
otherwise required under PRC law, the validity of this Agreement shall not be
affected by the ability of the parties to file this Agreement with the Guangzhou
AIC or obtain acceptance of such registration.
Article
7 Undertakings by Party A
During
the term of this Agreement, Party A undertakes to Party B that:
7.1
Without Party B’s prior written consent, Party A will not set any other
Encumbrance or other restrictive condition or covenant on all or any part of the
Pledged Equity.
7.2
Without Party B’s prior written consent, Party A will not sell, lease, lend,
transfer, convey, assign, donate, re-mortgage, put under custody of, use for
share purchase or otherwise dispose of all or part of the Pledged
Equity;
7.3 Party
A will not use or permit others to vote the Pledged Equity or otherwise to use
the Pledged Equity to be engaged in any act or event violating laws or this
Agreement; and
7.4 After
Party A receives any notice, order, ruling, judgment or other document relating
to the Pledged Equity and the obligations of Party A under this Agreement issued
by any third party, including without limitation any government agency, judicial
organ or arbitration organization, it will forthwith inform Party B and
immediately but within the term specified by law, take all necessary actions to
cause such notice, order, ruling, judgment or other document to be rescinded,
reversed, annulled or otherwise addressed to Party B’s satisfaction. Party A
will institute an action,
arbitration or administrative action in respect of such notice, order or other
document, as Party B deems necessary, and bear all relevant
expenses.
7.5
Party A shall comply with the provisions of all laws, rules and regulations
applicable to the pledge of rights.
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7.6 Party A hereby warrants to Party B that to protect
or perfect the pledge provided by this Agreement for the proper
satisfaction of the Guaranteed Liabilities, Party A hereby agrees in good faith
to, and shall cause other parties to, sign all rights, certificates, agreements
and instruments as required by Party B, and/or shall perform and cause other
parties to perform such other actions required by Party B, in furtherance of the
rights, duties and obligations prescribed in this Agreement.
7.7 only upon the prior
written consent by Party B, shall Party A be able to increase the
registered capital of Dongfang Hospital, and the furhter registered capital
shall also be part of the pledged equity..
Article
8 Defaults
8.1 The
following matters are defaults under this Agreement:
8.1.1
Party A or Dongfang Hospital fails to perform any of its obligations under the
Domestic Agreements in time and in full or to pay any Guaranteed Liabilities on
time and in full;
8.1.2 Any
representation or warranty of Party A under Article 2 contains false, fraudulent
or misleading statement or errors;
8.1.3
Party A violates any undertaking under Article 7 above;
8.1.4
Party A refuses to handle or intentionally delays the registration and recording
procedures of the pledge under this Agreement, and fails to make correction
within 10 days of Party B’s written request;
8.1.5
Party A’s or Dongfang Hospital’s borrowing, guaranty, compensation, undertaking
or other liabilities (1) are requested to be repaid or performed in advance due
to a default; or (2) are due but cannot be repaid or performed on time, which,
at the reasonable discretion of Party B, has an adverse material effect on Party
A’s ability of performing the obligations under this Agreement;
8.1.6 The
promulgation of relevant laws and regulations and Party A’s faults (including
omissions) make this Agreement invalid, voidable or unenforceable, or Party A
cannot continue to perform its obligations under this Agreement in time and in
full;
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Agreement
8.1.7
Party A violates any other provision of this Agreement;
8.1.8
Party A or Dongfang Hospital admits in writing its inability to repay its debts
and other obligations as they become due in the ordinary course, has a receiver
or trustee appointed for all or any portion of its assets, files a general
assignment for the benefit of its creditors, or has any voluntary or involuntary
action taken under applicable bankruptcy, reorganization or similar laws, rules
or regulations which is not dismissed with prejudice within 90
days.
8.1.9
Party A’s or Dongfang Hospital’s acts or omissions, or any other occurrence, has
rendered it illegal or impossible for Party A to continue to perform his
obligations hereunder or for Party B to exercise its right of pledge
hereunder.
8.2 If
Party A knows or should know that any matter as stated in Article 8.1 hereof or
any event possibly resulting in any of the above matters has occurred, it shall
inform Party B in writing in time.
8.3
Unless Party A takes the action to Party B’s satisfaction to correct the
defaults as listed in Article 8.1 hereof, Party B may give a written notice
about the exercising of right of pledge to Party A when defaults occur or at any
time thereafter, requiring to dispose of the Pledged Equity according to the
provisions of this Agreement.
8.4 The
clauses about defaults under this Agreement shall not affect the exercise by the
Parties of the other remedies under currently applicable Chinese laws and
regulations.
Article
9 Exercise of Right of Pledge
9.1
Subject to the provisions in Article 8.3, Party B may dispose of the Pledged
Equity after it gives a notice about the exercise of right of pledge or at any
time thereafter.
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9.2 Party
B shall be entitled to dispose of all or part of the Pledged Equity under this
Agreement (including, but not limited to, converting Pledge Equity into money at
an agreed price or auctioning or selling Pledged Equity in accordance with law)
pursuant to statutory procedures and be first compensated with the proceeds from
such disposal until all Guaranteed Liabilities are paid up.
9.3 When
Party B disposes of Pledged Equity according to this Agreement, Party A shall
render necessary assistance and not set barriers so that Party B realizes its
right of pledge.
Article
10 Termination
When all
Guaranteed Liabilities are paid up and Party A has fully performed the
obligations under the Domestic Agreements, this Pledge Agreement is terminated.
In this case, Party B shall have the pledge registration cancelled as far as
reasonably practicable.
Article
11 Taxes and expenses
Any and
all taxes and expenses arising from execution and performance of this Agreement
shall be borne by the Parties respectively pursuant to the provisions of laws
and regulations
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Article
12 Liabilities for breach of Agreement
Both
parties shall exercise the right and perform the obligation appropriately in
order to ensure this agreement is performed smoothly. Either party shall
undertake the responsibility of the breach of the Agreement for failing to
performing the obligation in full; and shall compensate the other party for any
direct loss caused. Party A shall indemnify and hold harmless Party
B, and its successors and assigns, and each of their respective officers,
directors, affiliates, executives, supervisors, managers, deputy managers,
members, equity holders, attorneys, employees, agents and representatives, from
and against any and all actions, suits, claims, demands, debts, liabilities,
obligations, losses, damages, costs and expenses (including reasonable
attorney’s fees and court costs), arising out of or caused by, directly or
indirectly (a) any material misrepresentation, breach or failure of any
representation or warranty made herein by Party A or any agreement or document
delivered in connection herewith; (b) any failure or refusal by Party A satisfy
or perform any covenant, term or condition of this Agreement required to be
satisfied or performed by either or both of them; or (c) the performance by
Party B of its obligations and duties hereunder.
Article
13 Applicable Law
The
execution, effectiveness, interpretation, performance and settlement of disputes
of this Agreement will be governed by the law of the PRC.
Article
14 Settlement of Disputes
All
disputes arising out of or in connection with this Agreement shall be settled by
the parties through friendly negotiation. In the event said disputes can not be
settled through friendly negotiation, either Party may submit the dispute to
arbitration to be conducted by South China Sub-commission of China International
Economic and Trade Arbitration Commission in Shenzhen in accordance with its
then current arbitration rules. The arbitral award shall be final and
binding.
Article
15 Effectiveness, Modification and Termination
15.1 This
Agreement shall take into effect when it satisfies one of the following
conditions:
(1)
Signed by the authorized representatives of the Parties with seals affixed;
or
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(2) The
Pledged Equity has been registered and recorded legally with the Guangzhou
Administration for Industry and Commerce.
15.2
Unless otherwise agreed upon by the Parties hereto, neither Party may modify or
terminate this Agreement. Any modification or termination shall be in writing
after both parties’ consultations. The provisions of this Agreement remain
binding on both parties prior to any written agreement on modification or
termination.
Article
16 Miscellaneous
16.1
Assignment
Without
Party B’s prior written consent, Party A shall not assign all or part of its
rights and/or obligations under this Agreement to any third party.
This
Agreement shall bind upon Party A and its heirs and successors and inure to the
benefit of Party B and each of its successors and permitted
assigns.
Party B
may, at any time, assign all or part of its rights and/or obligations under the
Domestic Agreements to the natural person or legal person designated by it. In
this case, under this Agreement, such assignee shall have the same rights and
obligations as those of Party B. Party A shall not make any objection
thereto.
After
Party B is changed due to such assignment, the new parties to pledge shall sign
a new pledge agreement in the format of this Agreement.
16.2
Partial invalidity
If, at
any time, any provision hereof is or becomes unenforceable in any respect under
the law of any jurisdiction, which will not cause material adverse effects on
the rights and obligations of the Parties under this Agreement, the other
provisions remain valid.
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16.3
Waivers
Waivers
in writing signed by the Parties are considered valid. No failure to exercise on
the part of either Party, any right or remedy hereunder shall operate as a
waiver thereof, nor shall any single or partial exercise of any right or remedy
prevent any further or other exercise thereof or the exercise of any other right
or remedy.
16.4
Languages
This
Agreement has been written and signed between the Parties in English and Chinese
languages. Both language versions shall be equally authentic. If there are any
discrepancy or conflicts between two versions, Chinese version shall
prevail.
16.5
Copies of Agreement
This
Agreement is signed in five copies, Each Party holds one copy, others for
relevant procedures. Either one is considered as original and has the same legal
effect.
In
witness hereof, the Agreement is duly executed by the Parties hereto on the date
first written above.
(REMAINDER OF PAGE INTENTIONALLY LEFT
BLANK)
|
Party A: Xxxxxxxx
Xx[
](signature):
/s/
Xxxxxxxx Xx
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Share Pledge
Agreement
Party B: Guangzhou
Shouzhi Medical Institution Management Co. Ltd. (seal)
Legal
representative or Authorized representative(Signature)
/s/
Xxxxxxxx Xx
Date:
June 14, 2010
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