Share Pledge Agreement
Exhibit 10.31
This Share Pledge Agreement (this “Agreement”) has been executed by and among the following Parties on April 8, 2010 in Beijing, People’s Republic of China (“PRC”):
Party A: ChinaCache Network Technology (Beijing) Co., Ltd. (hereinafter “Pledgee”)
Address: Xxxxx 0, Xxxxx X, Xxxxxx Xxxxx, Xx.00 Jiu Xian Qiao Xxxxxx Xxxx, Xxxxxxxx Xxxxxxxx, 000000, Xxxxxxx
Party B: Xxxxxxx Xxx (hereinafter “Pledgor”)
ID Number:
Party C: Shanghai Jnet Telcom Co., Ltd.
Address: Xxxx 000, Xx.000 Xxxxxxxx Xxxx, Xxxxxxx Xxxxxxxx, Xxxxxxxx
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. Party C is a limited liability company registered in Shanghai, China engaging in value-added telecommunication service business and/or other business approved by Pledgee. Pledgor is the citizens of the PRC, and holds 3% of the equity interest in Party C. Party C intends to acknowledge the respective rights and obligations of Pledgor and Pledgee under this Agreement, and to provide any necessary assistance in registering the Pledge;
2. Pledgee is a wholly foreign owned enterprise registered in Beijing, China. Pledgee and Party C, which is partially owned by Pledgor, have executed an Exclusive Business Cooperation Agreement on January 10, 2008;
3. To ensure that Party C performs its obligations under the Exclusive Business Cooperation Agreement and pay the consulting and service fees in accordance with said agreement, Pledgor hereby pledges all of the equity interest she holds in Party C as security for Party C’s payment of the consulting and service fees under the Exclusive Business Cooperation Agreement.
To perform the provisions of the Exclusive 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:
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.
1.3 Term of Pledge: shall refer to the term set forth in Section 3.2 of this Agreement.
1.4 Exclusive Business Cooperation Agreement: shall refer to the Exclusive Business Cooperation Agreement executed by and between Pledgee and Party C on April 10, 2008.
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 prompt and complete payment and performance when due (whether at stated maturity, by acceleration or otherwise) of any or all the payments due by Party C, including without limitation the consulting and services fees payable to the Pledgee under the Exclusive 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 as of the date when the pledge of the Equity Interest is registered with the competent administration of industry and commerce. The Pledge shall be continuously valid until all payments due under the Principal Agreements have been fulfilled by Party C. The Parties agree that Pledgor and Party C shall register the Pledge in the shareholders’ register of Party C within 3 business days following the execution of this Agreement; the Parties jointly acknowledge that, to conduct the share pledge registration formalities (including the share pledge modification registration when the shareholding percentage of Pledgor in Party C changes), the Parties and other shareholders of Party C shall submit to administration of industry and commerce a Share Pledge Agreement which is attached hereto as Exhibit 4 to this Agreement, and is executed in the form required by the administration of industry and commerce at the
place where Party C is located and which truly reflects the information of the pledge under this Agreement, matters not provided in such Share Pledge Agreement for registration shall be subject to provisions of this Agreement. Pledgor and Party C shall, in accordance with all requirements of the PRC laws and regulations and of the competent administration of industry and commerce, submit all necessary documents and conduct all necessary formalities to ensure that the pledge will be registered as soon as possible after the application is submitted (“Share Pledge Registration”).
3.2 During the Term of Pledge, in the event Party C fails to pay the consulting or service fees in accordance with the Exclusive 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 capital contribution certificate for the Equity Interest and the shareholders’ register containing the Pledge within one week from the execution of this Agreement, and evidence of share pledge registration (if any, “Pledge Registration Documents”) within one week after completion of the share pledge registration. Pledgee shall have custody of such items 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 Except for the Pledge, Pledgor has not placed any security interest or other encumbrance on the Equity Interest.
6. Covenants and Further Agreements of Pledgor
6.1 Pledgor hereby covenants to the Pledgee, that during the term of this Agreement, Pledgor shall:
6.1.1 not transfer the Equity Interest, place or permit the existence of any security interest or other encumbrance that may affect the Pledgee’s rights and interests in the Equity Interest, without the prior written consent of Pledgee, except for the performance of the Exclusive
Option Agreement executed by Pledgor, Pledgee and Party C on the date of this Agreement;
6.1.2 comply with the provisions of all laws and regulations applicable to the pledge of rights, and within 5 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 Exclusive 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/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.
7. Event of Breach
7.1 The following circumstances shall be deemed Event of Default:
7.1.1 Party C fails to perform any obligations under the Exclusive Business Cooperation Agreement, including but not limited to its failure to pay in full any of the consulting and service fees payable under the Exclusive Business Cooperation Agreement or breaches any other obligations of Party C thereunder;
7.1.2 Any representation or warranty by Pledgor in Article 5 of this Agreement contains material misrepresentations or errors, and/or Pledgor violates any of the warranties in Article 5 of this Agreement;
7.1.3 Pledgor and Party C substantially breach any provisions of this Agreement, or fails to correct such breach within 30 days after being notified by the non-breaching party;
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;
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 Exclusive Business Cooperation Agreement; and
7.1.6 Any other circumstances occur where Pledgee is or may become unable to exercise its right with respect to the Pledge.
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, Pledgee may issue a Notice of Default to Pledgor in writing upon the occurrence of the Event of Default or at any time thereafter and demand that Pledgor immediately pay all outstanding payments due under the Principal Agreements and all other payments due to Pledgee, and/or dispose of the Pledge in accordance with the provisions of Article 8 of this Agreement.
8. Exercise of the Pledge
8.1 Prior to the full payment of the consulting and service fees described in the Principal Agreements, 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.
8.3 Subject to the provisions of Section 7.3, Pledgee may exercise the right to enforce the Pledge concurrently with the issuance of the Notice of Default in accordance with Section 8.2 or at any time after the issuance of the Notice of Default. 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 take possession of the Equity Interest pledged hereunder and to dispose of the Equity Interest pledged, to the extent permitted and in accordance with applicable laws, without obligation to account to Pledgor for proceeds of disposition 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 Principal Agreements 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 Principal Agreements, 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 make modification registration with competent administration of industry and commerce.
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.
10. Termination
Upon the full payment of the consulting and service fees under the Exclusive Business Cooperation Agreement and upon termination of Party C’s obligations under the Principal Agreements, 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 any oral or written information exchanged among them with respect to this Agreement is confidential information. Each Party shall maintain the confidentiality of all such information, and without obtaining the written consent of other Parties, it shall not disclose any relevant information to any third parties, except in the following circumstances: (a) such information is or will be in the public domain (provided that this is not the result of a public disclosure by the receiving party); (b) information disclosed as required by applicable laws or rules or regulations of any stock exchange; or (c) information required to be disclosed by any Party to its legal counsel or financial advisor regarding the transaction contemplated hereunder, and such legal counsel or financial advisor are also bound by confidentiality duties similar to the duties in this section. Disclosure of any confidential information by the staff members or agency 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
The execution, effectiveness, construction, performance, and the resolution of disputes hereunder shall be governed by laws of PRC.
In the event of any dispute with respect to the construction and performance of the provisions of this Agreement, the Parties shall negotiate in good faith to resolve the dispute. In the event the Parties fail to reach an agreement on the resolution of such a dispute within 30 days after any Party’s request for resolution of the dispute through negotiations, any Party may submit the relevant dispute to the China International Economic and Trade Arbitration Commission for arbitration, in accordance with its then effective arbitration rules. The arbitration shall be conducted in Beijing, and the language used
during arbitration shall be Chinese. The arbitration ruling shall be final and binding on all Parties.
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.
14. Notices
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:
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.
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).
For the purpose of notices, the addresses of the Parties are as follows:
Party A: Xxxxx 0, Xxxxx X, Xxxxxx Xxxxx, Xx.00 Jiu Xian Qiao Xxxxxx Xxxx, Xxxxxxxx Xxxxxxxx, 000000, Xxxxxxx
Fax: +8610-6437 4251
Party B: Xxxxx 0, Xxxxx X, Xxxxxx Xxxxx, Xx.00 Jiu Xian Qiao Xxxxxx Xxxx, Xxxxxxxx Xxxxxxxx, 000000, Xxxxxxx
Fax: +8610-6437 4251
Party C: Xxxx 000, Xxxxxx Xxxxxxx Service Xxxxxxxxx, Xx.0000 Xxxxxxxx Xxxx, 0000000, Xxxxxxxx
Fax: x0000-0000 0000-000
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
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.
This Agreement is written in Chinese in three copies. Pledgor, Pledgee and Party C shall hold one copy respectively. Each copy of this Agreement shall have equal validity.
IN WITNESS THEREOF, the parties have caused their authorized representatives to sign this Share Pledge Agreement on the date first above written.
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Party A: ChinaCache Network Technology (Beijing) Co., Ltd. |
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By: |
/s/ Xxxx Xxxx |
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Name: |
Xxxx Xxxx |
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Title: |
Legal Representative |
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Party B: Xxxxxxx Xxx |
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By: |
/s/ Xxxxxxx Xxx |
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Party C: Shanghai Jnet Telcom Co., Ltd. |
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By: |
/s/ Yong Sha |
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Name: |
Yong Sha |
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Title: |
Legal Representative |
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Attachments:
1. Shareholders’ register of Shanghai Jnet Telcom Co., Ltd.;
2. Capital Contribution Certificate for Shanghai Jnet Telcom Co., Ltd.;
3. Exclusive Business Cooperation Agreement
4. Share Pledge Agreement for registration with administration of industry and commerce.
This Share Pledge Agreement (this “Agreement”) has been executed by and among the following Parties on April 8, 2010 in Beijing, People’s Republic of China (“PRC”):
Party A: ChinaCache Network Technology (Beijing) Co., Ltd. (hereinafter “Pledgee”)
Address: Xxxxx 0, Xxxxx X, Xxxxxx Xxxxx, Xx.00 Jiu Xian Qiao Xxxxxx Xxxx, Xxxxxxxx Xxxxxxxx, 000000, Xxxxxxx
Party B: Yongkai Mei (hereinafter “Pledgor”)
ID Number:
Party C: Shanghai Jnet Telcom Co., Ltd.
Address: Xxxx 000, Xx.000 Xxxxxxxx Xxxx, Xxxxxxx Xxxxxxxx, Xxxxxxxx
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. Party C is a limited liability company registered in Shanghai, China engaging in value-added telecommunication service business and/or other business approved by Pledgee. Pledgor is the citizens of the PRC, and holds 3% of the equity interest in Party C. Party C intends to acknowledge the respective rights and obligations of Pledgor and Pledgee under this Agreement, and to provide any necessary assistance in registering the Pledge;
2. Pledgee is a wholly foreign owned enterprise registered in Beijing, China. Pledgee and Party C, which is partially owned by Pledgor, have executed an Exclusive Business Cooperation Agreement on January 10, 2008;
3. To ensure that Party C performs its obligations under the Exclusive Business Cooperation Agreement and pay the consulting and service fees in accordance with said agreement, Pledgor hereby pledges all of the equity interest she holds in Party C as security for Party C’s payment of the consulting and service fees under the Exclusive Business Cooperation Agreement.
To perform the provisions of the Exclusive 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:
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.
1.3 Term of Pledge: shall refer to the term set forth in Section 3.2 of this Agreement.
1.4 Exclusive Business Cooperation Agreement: shall refer to the Exclusive Business Cooperation Agreement executed by and between Pledgee and Party C on April 10, 2008.
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 prompt and complete payment and performance when due (whether at stated maturity, by acceleration or otherwise) of any or all the payments due by Party C, including without limitation the consulting and services fees payable to the Pledgee under the Exclusive 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 as of the date when the pledge of the Equity Interest is registered with the competent administration of industry and commerce. The Pledge shall be continuously valid until all payments due under the Principal Agreements have been fulfilled by Party C. The Parties agree that Pledgor and Party C shall register the Pledge in the shareholders’ register of Party C within 3 business days following the execution of this Agreement; the Parties jointly acknowledge that, to conduct the share pledge registration formalities (including the share pledge modification registration when the shareholding percentage of Pledgor in Party C changes), the Parties and other shareholders of Party C shall submit to administration of industry and commerce a Share Pledge Agreement which is attached hereto as Exhibit 4 to this Agreement, and is executed in the form required by the administration of industry and commerce at the place where Party C is located and which truly reflects the information of
the pledge under this Agreement, matters not provided in such Share Pledge Agreement for registration shall be subject to provisions of this Agreement. Pledgor and Party C shall, in accordance with all requirements of the PRC laws and regulations and of the competent administration of industry and commerce, submit all necessary documents and conduct all necessary formalities to ensure that the pledge will be registered as soon as possible after the application is submitted (“Share Pledge Registration”).
3.2 During the Term of Pledge, in the event Party C fails to pay the consulting or service fees in accordance with the Exclusive 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 capital contribution certificate for the Equity Interest and the shareholders’ register containing the Pledge within one week from the execution of this Agreement, and evidence of share pledge registration (if any, “Pledge Registration Documents”) within one week after completion of the share pledge registration. Pledgee shall have custody of such items 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 Except for the Pledge, Pledgor has not placed any security interest or other encumbrance on the Equity Interest.
6. Covenants and Further Agreements of Pledgor
6.1 Pledgor hereby covenants to the Pledgee, that during the term of this Agreement, Pledgor shall:
6.1.1 not transfer the Equity Interest, place or permit the existence of any security interest or other encumbrance that may affect the Pledgee’s rights and interests in the Equity Interest, without the prior written consent of Pledgee, except for the performance of the Exclusive Option Agreement executed by Pledgor, Pledgee and Party C on the
date of this Agreement;
6.1.2 comply with the provisions of all laws and regulations applicable to the pledge of rights, and within 5 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 Exclusive 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/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.
7. Event of Breach
7.1 The following circumstances shall be deemed Event of Default:
7.1.1 Party C fails to perform any obligations under the Exclusive Business Cooperation Agreement, including but not limited to its failure to pay in full any of the consulting and service fees payable under the Exclusive Business Cooperation Agreement or breaches any other obligations of Party C thereunder;
7.1.2 Any representation or warranty by Pledgor in Article 5 of this Agreement contains material misrepresentations or errors, and/or Pledgor violates any of the warranties in Article 5 of this Agreement;
7.1.3 Pledgor and Party C substantially breach any provisions of this Agreement, or fails to correct such breach within 30 days after being notified by the non-breaching party;
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;
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 Exclusive Business Cooperation Agreement; and
7.1.6 Any other circumstances occur where Pledgee is or may become unable to exercise its right with respect to the Pledge.
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, Pledgee may issue a Notice of Default to Pledgor in writing upon the occurrence of the Event of Default or at any time thereafter and demand that Pledgor immediately pay all outstanding payments due under the Principal Agreements and all other payments due to Pledgee, and/or dispose of the Pledge in accordance with the provisions of Article 8 of this Agreement.
8. Exercise of the Pledge
8.1 Prior to the full payment of the consulting and service fees described in the Principal Agreements, 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.
8.3 Subject to the provisions of Section 7.3, Pledgee may exercise the right to enforce the Pledge concurrently with the issuance of the Notice of Default
in accordance with Section 8.2 or at any time after the issuance of the Notice of Default. 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 take possession of the Equity Interest pledged hereunder and to dispose of the Equity Interest pledged, to the extent permitted and in accordance with applicable laws, without obligation to account to Pledgor for proceeds of disposition 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 Principal Agreements 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 Principal Agreements, 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 make modification registration with competent administration of industry and commerce.
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.
10. Termination
Upon the full payment of the consulting and service fees under the Exclusive Business Cooperation Agreement and upon termination of Party C’s obligations under the Principal Agreements, 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 any oral or written information exchanged among them with respect to this Agreement is confidential information. Each Party shall maintain the confidentiality of all such information, and without obtaining the written consent of other Parties, it shall not disclose any relevant information to any third parties, except in the following circumstances: (a) such information is or will be in the public domain (provided that this is not the result of a public disclosure by the receiving party); (b) information disclosed as required by applicable laws or rules or regulations of any stock exchange; or (c) information required to be disclosed by any Party to its legal counsel or financial advisor regarding the transaction contemplated hereunder, and such legal counsel or financial advisor are also bound by confidentiality duties similar to the duties in this section. Disclosure of any confidential information by the staff members or agency 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
The execution, effectiveness, construction, performance, and the resolution of disputes hereunder shall be governed by laws of PRC.
In the event of any dispute with respect to the construction and performance of the provisions of this Agreement, the Parties shall negotiate in good faith to resolve the dispute. In the event the Parties fail to reach an agreement on the resolution of such a dispute within 30 days after any Party’s request for resolution of the dispute through negotiations, any Party may submit the relevant dispute to the China International Economic and Trade Arbitration Commission for arbitration, in accordance with its then effective arbitration rules. The arbitration shall be conducted in Beijing, and the language used during arbitration shall be Chinese. The arbitration ruling shall be final and binding on all Parties.
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.
14. Notices
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:
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.
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).
For the purpose of notices, the addresses of the Parties are as follows:
Party A: Xxxxx 0, Xxxxx X, Xxxxxx Xxxxx, Xx.00 Jiu Xian Qiao Xxxxxx Xxxx, Xxxxxxxx Xxxxxxxx, 000000, Xxxxxxx
Fax: +8610-6437 4251
Party B: Xxxxx 0, Xxxxx X, Xxxxxx Xxxxx, Xx.00 Jiu Xian Qiao Xxxxxx Xxxx, Xxxxxxxx Xxxxxxxx, 000000, Xxxxxxx
Fax: +8610-6437 4251
Party C: Xxxx 000, Xxxxxx Xxxxxxx Service Xxxxxxxxx, Xx.0000 Xxxxxxxx Xxxx, 0000000, Xxxxxxxx
Fax: x0000-0000 0000-000
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
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.
This Agreement is written in Chinese in three copies. Pledgor, Pledgee and Party C shall hold one copy respectively. Each copy of this Agreement shall have equal validity.
IN WITNESS THEREOF, the parties have caused their authorized representatives to sign this Share Pledge Agreement on the date first above written.
Party A: ChinaCache Network Technology (Beijing) Co., Ltd.
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Xxxx Xxxx |
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Title: |
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Party B: Yongkai Mei |
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/s/ Yongkai Mei |
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Party C: Shanghai Jnet Telcom Co., Ltd. |
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/s/ Yong Sha |
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Yong Sha |
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Attachments:
1. Shareholders’ register of Shanghai Jnet Telcom Co., Ltd.;
2. Capital Contribution Certificate for Shanghai Jnet Telcom Co., Ltd.;
3. Exclusive Business Cooperation Agreement
4. Share Pledge Agreement for registration with administration of industry and commerce.
Share Pledge Agreement
This Share Pledge Agreement (this “Agreement”) has been executed by and among the following Parties on April 8, 2010 in Beijing, People’s Republic of China (“PRC”):
Party A: ChinaCache Network Technology (Beijing) Co., Ltd. (hereinafter “Pledgee”)
Address: Xxxxx 0, Xxxxx X, Xxxxxx Xxxxx, Xx.00 Jiu Xian Qiao Xxxxxx Xxxx, Xxxxxxxx Xxxxxxxx, 000000, Xxxxxxx
Party B: Yong Sha (hereinafter “Pledgor”)
ID Number:
Party C: Shanghai Jnet Telcom Co., Ltd.
Address: Xxxx 000, Xx.000 Xxxxxxxx Xxxx, Xxxxxxx Xxxxxxxx, Xxxxxxxx
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. Pledgee, Pledgor and Party C entered into a Share Pledge Agreement on January 10, 2008 (the “Original Share Pledge Agreement”), and agree to execute this Agreement to amend certain provisions of the Original Share Pledge Agreement, this Agreement shall supersede and replace the Original Share Pledge Agreement upon its execution.
2. Party C is a limited liability company registered in Shanghai, China engaging in value-added telecommunication service business and/or other business approved by Pledgee. Pledgor is the citizens of the PRC, and holds 41% of the equity interest in Party C. Party C intends to acknowledge the respective rights and obligations of Pledgor and Pledgee under this Agreement, and to provide any necessary assistance in registering the Pledge;
3. Pledgee is a wholly foreign owned enterprise registered in Beijing, China. Pledgee and Party C, which is partially owned by Pledgor, have executed an Exclusive Business Cooperation Agreement on January 10, 2008;
4. To ensure that Party C performs its obligations under the Exclusive Business Cooperation Agreement and pay the consulting and service fees in accordance with said agreement, Pledgor hereby pledges all of the equity interest she holds in Party C as security for Party C’s payment of the consulting and service fees under the Exclusive Business Cooperation Agreement.
To perform the provisions of the Exclusive 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:
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.
1.3 Term of Pledge: shall refer to the term set forth in Section 3.2 of this Agreement.
1.4 Exclusive Business Cooperation Agreement: shall refer to the Exclusive Business Cooperation Agreement executed by and between Pledgee and Party C on April 10, 2008.
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 prompt and complete payment and performance when due (whether at stated maturity, by acceleration or otherwise) of any or all the payments due by Party C, including without limitation the consulting and services fees payable to the Pledgee under the Exclusive 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 as of the date when the pledge of the Equity Interest is registered with the competent administration of industry and commerce. The Pledge shall be continuously valid until all payments due under the Principal Agreements have been fulfilled by Party C. The Parties agree that Pledgor and Party C shall register the Pledge in the shareholders’ register of Party C within 3 business days following the
execution of this Agreement; the Parties jointly acknowledge that, to conduct the share pledge registration formalities, the Parties and other shareholders of Party C shall submit to administration of industry and commerce a Share Pledge Agreement which is attached hereto as Exhibit 4 to this Agreement, and is executed in the form required by the administration of industry and commerce at the place where Party C is located and which truly reflects the information of the pledge under this Agreement, matters not provided in such Share Pledge Agreement for registration shall be subject to provisions of this Agreement. Pledgor and Party C shall, in accordance with all requirements of the PRC laws and regulations and of the competent administration of industry and commerce, submit all necessary documents and conduct all necessary formalities to ensure that the pledge will be registered as soon as possible after the application is submitted (“Share Pledge Registration”).
3.2 During the Term of Pledge, in the event Party C fails to pay the consulting or service fees in accordance with the Exclusive 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 capital contribution certificate for the Equity Interest and the shareholders’ register containing the Pledge within one week from the execution of this Agreement, and evidence of share pledge registration (if any, “Pledge Registration Documents”) within one week after completion of the share pledge registration. Pledgee shall have custody of such items 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 Except for the Pledge, Pledgor has not placed any security interest or other encumbrance on the Equity Interest.
6. Covenants and Further Agreements of Pledgor
6.1 Pledgor hereby covenants to the Pledgee, that during the term of this Agreement, Pledgor shall:
6.1.1 not transfer the Equity Interest, place or permit the existence of any security interest or other encumbrance that may affect the Pledgee’s rights and interests in the Equity Interest, without the prior written consent of Pledgee, except for the performance of the Exclusive Option Agreement executed by Pledgor, Pledgee and Party C on the date of this Agreement;
6.1.2 comply with the provisions of all laws and regulations applicable to the pledge of rights, and within 5 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 Exclusive 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/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.
7. Event of Breach
7.1 The following circumstances shall be deemed Event of Default:
7.1.1 Party C fails to perform any obligations under the Exclusive Business Cooperation Agreement, including but not limited to its failure to pay in full any of the consulting and service fees payable under the Exclusive Business Cooperation Agreement or breaches any other obligations of Party C thereunder;
7.1.2 Any representation or warranty by Pledgor in Article 5 of this Agreement contains material misrepresentations or errors, and/or Pledgor violates any of the warranties in Article 5 of this Agreement;
7.1.3 Pledgor and Party C substantially breach any provisions of this Agreement, or fails to correct such breach within 30 days after being notified by the non-breaching party;
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;
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 Exclusive Business Cooperation Agreement; and
7.1.6 Any other circumstances occur where Pledgee is or may become unable to exercise its right with respect to the Pledge.
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, Pledgee may issue a Notice of Default to Pledgor in writing upon the occurrence of the Event of Default or at any time thereafter and demand that Pledgor immediately pay all outstanding payments due under the Principal Agreements and all other payments due to Pledgee, and/or dispose of the Pledge in accordance with the provisions of Article 8 of this Agreement.
8. Exercise of the Pledge
8.1 Prior to the full payment of the consulting and service fees described in the Principal Agreements, 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.
8.3 Subject to the provisions of Section 7.3, Pledgee may exercise the right to enforce the Pledge in accordance with applicable laws concurrently with the issuance of the Notice of Default in accordance with Section 8.2 or at any time after the issuance of the Notice of Default. 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 take possession of the Equity Interest pledged hereunder and to dispose of the Equity Interest pledged, to the extent permitted and in accordance with applicable laws, without obligation to account to Pledgor for proceeds of disposition 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 Principal Agreements 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 Principal Agreements, 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 make modification registration with competent administration of industry and commerce.
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.
10. Termination
Upon the full payment of the consulting and service fees under the Exclusive Business Cooperation Agreement and upon termination of Party C’s obligations under the Principal Agreements, 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 any oral or written information exchanged among them with respect to this Agreement is confidential information. Each Party shall maintain the confidentiality of all such information, and without obtaining the written consent of other Parties, it shall not disclose any relevant information to any third parties, except in the following circumstances: (a) such information is or will be in the public domain (provided that this is not the result of a public disclosure by the receiving party); (b) information disclosed as required by applicable laws or rules or regulations of any stock exchange; or (c) information required to be disclosed by any Party to its legal counsel or financial advisor regarding the transaction contemplated hereunder, and such legal counsel or financial advisor are also bound by confidentiality duties similar to the duties in this section. Disclosure of any confidential information by the staff members or agency 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
The execution, effectiveness, construction, performance, and the resolution of disputes hereunder shall be governed by laws of PRC.
In the event of any dispute with respect to the construction and performance of the provisions of this Agreement, the Parties shall negotiate in good faith to resolve the dispute. In the event the Parties fail to reach an agreement on the resolution of such a dispute within 30 days after any Party’s request for
resolution of the dispute through negotiations, any Party may submit the relevant dispute to the China International Economic and Trade Arbitration Commission for arbitration, in accordance with its then effective arbitration rules. The arbitration shall be conducted in Beijing, and the language used during arbitration shall be Chinese. The arbitration ruling shall be final and binding on all Parties.
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.
14. Notices
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:
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.
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).
For the purpose of notices, the addresses of the Parties are as follows:
Party A: Xxxxx 0, Xxxxx X, Xxxxxx Xxxxx, Xx.00 Jiu Xian Qiao Xxxxxx Xxxx, Xxxxxxxx Xxxxxxxx, 000000, Xxxxxxx
Fax: +8610-6437 4251
Party B: Xxxxx 0, Xxxxx X, Xxxxxx Xxxxx, Xx.00 Jiu Xian Qiao Xxxxxx Xxxx, Xxxxxxxx Xxxxxxxx, 000000, Xxxxxxx
Fax: +8610-6437 4251
Party C: Xxxx 000, Xxxxxx Xxxxxxx Service Xxxxxxxxx, Xx.0000 Xxxxxxxx Xxxx, 0000000, Xxxxxxxx
Fax: x0000-0000 0000-000
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
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.
This Agreement is written in Chinese in three copies. Pledgor, Pledgee and Party C shall hold one copy respectively. Each copy of this Agreement shall have equal validity.
IN WITNESS THEREOF, the parties have caused their authorized representatives to sign this Share Pledge Agreement on the date first above written.
Party A: ChinaCache Network Technology (Beijing) Co., Ltd.
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/s/ Xxxx Xxxx |
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Name: Xxxx Xxxx |
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Title: Legal Representative |
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Party B: Yong Sha |
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/s/ Yong Sha |
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Party C: Shanghai Jnet Telcom Co., Ltd. |
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By: |
/s/ Yong Sha |
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Name: Yong Sha |
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Title: Legal Representative |
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Attachments:
1. Shareholders’ register of Shanghai Jnet Telcom Co., Ltd.;
2. Capital Contribution Certificate for Shanghai Jnet Telcom Co., Ltd.;
3. Exclusive Business Cooperation Agreement
4. Share Pledge Agreement for registration with administration of industry and commerce.
Share Pledge Agreement
This Share Pledge Agreement (this “Agreement”) has been executed by and among the following Parties on April 8, 2010 in Beijing, People’s Republic of China (“PRC”):
Party A: ChinaCache Network Technology (Beijing) Co., Ltd. (hereinafter “Pledgee”)
Address: Xxxxx 0, Xxxxx X, Xxxxxx Xxxxx, Xx.00 Jiu Xian Qiao Xxxxxx Xxxx, Xxxxxxxx Xxxxxxxx, 000000, Xxxxxxx
Party B: Xxx Xxx (hereinafter “Pledgor”)
ID Number:
Party C: Shanghai Jnet Telcom Co., Ltd.
Address: Xxxx 000, Xx.000 Xxxxxxxx Xxxx, Xxxxxxx Xxxxxxxx, Xxxxxxxx
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. Party C is a limited liability company registered in Shanghai, China engaging in value-added telecommunication service business and/or other business approved by Pledgee. Pledgor is the citizens of the PRC, and holds 3% of the equity interest in Party C. Party C intends to acknowledge the respective rights and obligations of Pledgor and Pledgee under this Agreement, and to provide any necessary assistance in registering the Pledge;
2. Pledgee is a wholly foreign owned enterprise registered in Beijing, China. Pledgee and Party C, which is partially owned by Pledgor, have executed an Exclusive Business Cooperation Agreement on January 10, 2008;
3. To ensure that Party C performs its obligations under the Exclusive Business Cooperation Agreement and pay the consulting and service fees in accordance with said agreement, Pledgor hereby pledges all of the equity interest she holds in Party C as security for Party C’s payment of the consulting and service fees under the Exclusive Business Cooperation Agreement.
To perform the provisions of the Exclusive 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:
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.
1.3 Term of Pledge: shall refer to the term set forth in Section 3.2 of this Agreement.
1.4 Exclusive Business Cooperation Agreement: shall refer to the Exclusive Business Cooperation Agreement executed by and between Pledgee and Party C on April 10, 2008.
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 prompt and complete payment and performance when due (whether at stated maturity, by acceleration or otherwise) of any or all the payments due by Party C, including without limitation the consulting and services fees payable to the Pledgee under the Exclusive 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 as of the date when the pledge of the Equity Interest is registered with the competent administration of industry and commerce. The Pledge shall be continuously valid until all payments due under the Principal Agreements have been fulfilled by Party C. The Parties agree that Pledgor and Party C shall register the Pledge in the shareholders’ register of Party C within 3 business days following the execution of this Agreement; the Parties jointly acknowledge that, to conduct the share pledge registration formalities (including the share pledge modification registration when the shareholding percentage of Pledgor in Party C changes), the Parties and other shareholders of Party C shall submit to administration of industry and commerce a Share Pledge Agreement which is attached hereto as Exhibit 4 to this Agreement, and is executed in the form required by the administration of industry and commerce at the
place where Party C is located and which truly reflects the information of the pledge under this Agreement, matters not provided in such Share Pledge Agreement for registration shall be subject to provisions of this Agreement. Pledgor and Party C shall, in accordance with all requirements of the PRC laws and regulations and of the competent administration of industry and commerce, submit all necessary documents and conduct all necessary formalities to ensure that the pledge will be registered as soon as possible after the application is submitted (“Share Pledge Registration”).
3.2 During the Term of Pledge, in the event Party C fails to pay the consulting or service fees in accordance with the Exclusive 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 capital contribution certificate for the Equity Interest and the shareholders’ register containing the Pledge within one week from the execution of this Agreement, and evidence of share pledge registration (if any, “Pledge Registration Documents”) within one week after completion of the share pledge registration. Pledgee shall have custody of such items 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 Except for the Pledge, Pledgor has not placed any security interest or other encumbrance on the Equity Interest.
6. Covenants and Further Agreements of Pledgor
6.1 Pledgor hereby covenants to the Pledgee, that during the term of this Agreement, Pledgor shall:
6.1.1 not transfer the Equity Interest, place or permit the existence of any security interest or other encumbrance that may affect the Pledgee’s rights and interests in the Equity Interest, without the prior written consent of Pledgee, except for the performance of the Exclusive Option Agreement executed by Pledgor, Pledgee and Party C on the
date of this Agreement;
6.1.2 comply with the provisions of all laws and regulations applicable to the pledge of rights, and within 5 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 Exclusive 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/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.
7. Event of Breach
7.1 The following circumstances shall be deemed Event of Default:
7.1.1 Party C fails to perform any obligations under the Exclusive Business Cooperation Agreement, including but not limited to its failure to pay in full any of the consulting and service fees payable under the Exclusive Business Cooperation Agreement or breaches any other obligations of Party C thereunder;
7.1.2 Any representation or warranty by Pledgor in Article 5 of this Agreement contains material misrepresentations or errors, and/or Pledgor violates any of the warranties in Article 5 of this Agreement;
7.1.3 Pledgor and Party C substantially breach any provisions of this Agreement, or fails to correct such breach within 30 days after being notified by the non-breaching party;
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;
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 Exclusive Business Cooperation Agreement; and
7.1.6 Any other circumstances occur where Pledgee is or may become unable to exercise its right with respect to the Pledge.
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, Pledgee may issue a Notice of Default to Pledgor in writing upon the occurrence of the Event of Default or at any time thereafter and demand that Pledgor immediately pay all outstanding payments due under the Principal Agreements and all other payments due to Pledgee, and/or dispose of the Pledge in accordance with the provisions of Article 8 of this Agreement.
8. Exercise of the Pledge
8.1 Prior to the full payment of the consulting and service fees described in the Principal Agreements, 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.
8.3 Subject to the provisions of Section 7.3, Pledgee may exercise the right to enforce the Pledge concurrently with the issuance of the Notice of Default
in accordance with Section 8.2 or at any time after the issuance of the Notice of Default. 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 take possession of the Equity Interest pledged hereunder and to dispose of the Equity Interest pledged, to the extent permitted and in accordance with applicable laws, without obligation to account to Pledgor for proceeds of disposition 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 Principal Agreements 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 Principal Agreements, 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 make modification registration with competent administration of industry and commerce.
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.
10. Termination
Upon the full payment of the consulting and service fees under the Exclusive Business Cooperation Agreement and upon termination of Party C’s obligations under the Principal Agreements, 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 any oral or written information exchanged among them with respect to this Agreement is confidential information. Each Party shall maintain the confidentiality of all such information, and without obtaining the written consent of other Parties, it shall not disclose any relevant information to any third parties, except in the following circumstances: (a) such information is or will be in the public domain (provided that this is not the result of a public disclosure by the receiving party); (b) information disclosed as required by applicable laws or rules or regulations of any stock exchange; or (c) information required to be disclosed by any Party to its legal counsel or financial advisor regarding the transaction contemplated hereunder, and such legal counsel or financial advisor are also bound by confidentiality duties similar to the duties in this section. Disclosure of any confidential information by the staff members or agency 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
The execution, effectiveness, construction, performance, and the resolution of disputes hereunder shall be governed by laws of PRC.
In the event of any dispute with respect to the construction and performance of the provisions of this Agreement, the Parties shall negotiate in good faith to resolve the dispute. In the event the Parties fail to reach an agreement on the resolution of such a dispute within 30 days after any Party’s request for resolution of the dispute through negotiations, any Party may submit the relevant dispute to the China International Economic and Trade Arbitration Commission for arbitration, in accordance with its then effective arbitration rules. The arbitration shall be conducted in Beijing, and the language used during arbitration shall be Chinese. The arbitration ruling shall be final and binding on all Parties.
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.
14. Notices
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:
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.
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).
For the purpose of notices, the addresses of the Parties are as follows:
Party A: Xxxxx 0, Xxxxx X, Xxxxxx Xxxxx, Xx.00 Jiu Xian Qiao Xxxxxx Xxxx, Xxxxxxxx Xxxxxxxx, 000000, Xxxxxxx
Fax: +8610-6437 4251
Party B: Xxxxx 0, Xxxxx X, Xxxxxx Xxxxx, Xx.00 Jiu Xian Qiao Xxxxxx Xxxx, Xxxxxxxx Xxxxxxxx, 000000, Xxxxxxx
Fax: +8610-6437 4251
Party C: Xxxx 000, Xxxxxx Xxxxxxx Service Xxxxxxxxx, Xx.0000 Xxxxxxxx Xxxx, 0000000, Xxxxxxxx
Fax: x0000-0000 0000-000
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
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.
This Agreement is written in Chinese in three copies. Pledgor, Pledgee and Party C shall hold one copy respectively. Each copy of this Agreement shall have equal validity.
IN WITNESS THEREOF, the parties have caused their authorized representatives to sign this Share Pledge Agreement on the date first above written.
Party A: ChinaCache Network Technology (Beijing) Co., Ltd.
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/s/ Xxxx Xxxx |
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Name: Xxxx Xxxx |
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Title: Legal Representative |
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Party B: Xxx Xxx |
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By: |
/s/ Xxx Xxx |
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Party C: Shanghai Jnet Telcom Co., Ltd. |
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By: |
/s/ Yong Sha |
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Name: Yong Sha |
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Title: Legal Representative |
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Attachments:
1. Shareholders’ register of Shanghai Jnet Telcom Co., Ltd.;
2. Capital Contribution Certificate for Shanghai Jnet Telcom Co., Ltd.;
3. Exclusive Business Cooperation Agreement
4. Share Pledge Agreement for registration with administration of industry and commerce.
