Loan Agreement
Exhibit 4.10
Execution Copy
This Loan Agreement (this “Agreement”) is made and entered into by and between the Parties
below as of the 11th day of April, 2007 in Beijing, China:
| (1) | Ku6 (Beijing) Technology Co., Ltd. (“Lender”), a Wholly Foreign Owned Enterprise,
organized and existing under the laws of the People’s Republic of China (“PRC” or
“China”), with its address at Room 1206, Xxxxxxx Xxxxx 0X, Xxxxxxxxxxxx Software Garden,
Dong Xxx Xxxx, Haidian District, Beijing; |
| (2) | Xxxxxxx Xxx (“Borrower”), a citizen of the People’s Republic of China (“China”)
with Chinese Identification No.: 34122319860618351X. |
Each of the Lender and the Borrower shall be hereinafter referred to as a “Party”
respectively, and as the “Parties” collectively.
Whereas:
| 1. | Borrower holds 20% of equity interests (“Borrower Equity Interest”) in Ku6
(Beijing) Information Technology Co., Ltd. (“Borrower Company”), which is a limited
company duly registered in Beijing, China with its registered capital of RMB 1,000,000; |
| 2. | Lender intends to provide Borrower with a loan to be used for the purposes set
forth under this Agreement. |
After friendly consultation, the Parties agree as follows:
| 1. | Loan |
| 1.1 | In accordance with the terms and conditions of this Agreement, Lender agrees to
provide an interest-free loan in the amount of RMB 200,000 (the “Loan”) to Borrower. The
term of the Loan shall be 10 years from the date of this Agreement, which may be extended
upon mutual written consent of the Parties. During the term of the Loan or the extended
term of the Loan, Borrower shall immediately repay the full amount of the Loan in the
event any one or more of the following circumstances occur: |
30 days elapse after Borrower receives a written notice from Lender requesting
repayment of the Loan;
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Borrower’s death, lack or limitation of civil capacity;
Borrower ceases (for any reason) to be an employee of Lender, Borrower
Company or their affiliates;
Borrower engages in criminal act or is involved in criminal activities;
Any third party filed a claim against Borrower that exceeds RMB 500,000; or
According to the applicable laws of China, foreign investors are permitted to
invest in the value-added telecommunication business and/or other business of
Borrower Company in China with a controlling stake or in the form of
wholly-foreign-owned enterprises, the relevant competent authorities of China
begin to approve such investments, and Lender exercises the exclusive option
under the Exclusive Option Agreement (the “Exclusive Option Agreement”)
described in this Agreement.
Lender agrees to remit the total amount of the Loan to the account designated by
Borrower within 20 days after receiving a written notification from the Borrower
regarding the same, provided that all the conditions precedent in Section 2 are
fulfilled. Borrower shall provide Lender with a written receipt for the Loan upon
receiving the Loan. The Loan provided by Lender under this Agreement shall inure to
Borrower’s benefit only and not to Borrower’s successors or assigns.
Borrower agrees to accept the aforementioned Loan provided by Lender, and hereby agrees
and warrants using the Loan to provide capital for Borrower Company to develop the
business of Borrower Company. Without Lender’s prior written consent, Borrower shall not
use the Loan for any purpose other than as set forth herein.
Lender and Borrower hereby agree and acknowledge that Borrower’s method of repayment
shall be at the sole discretion of Lender, and may at Lender’s option take the form of
Borrower’s transferring the Borrower Equity Interest in whole to Lender or Lender’s
designated persons (legal or natural persons) pursuant to the Lender’s exercise of its
right to acquire the Borrower Equity Interest under the Exclusive Option Agreement.
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Lender and Borrower hereby agree and acknowledge that any proceeds from the transfer of
the Borrower Equity Interest (to the extent permissible)
shall be used to repay the Loan to Lender, in accordance with this Agreement and in the
manner designated by Lender.
Lender and Borrower hereby agree and acknowledge that to the extent permitted by
applicable laws, Lender shall have the right but not the obligation to purchase or
designate other persons (legal or natural persons) to purchase Borrower Equity Interest
in part or in whole at any time, at the price stipulated in the Exclusive Option
Agreement.
Borrower also undertakes to execute an irrevocable Power of Attorney (the “Power of
Attorney”), which authorizes Lender or a legal or natural person designated by Lender to
exercise all of Borrower’s rights as a shareholder of Borrower Company.
| 2. | Conditions Precedent |
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The obligation of Lender to provide the Loan to Borrower contemplated in Section 1.1 shall be
subject to the satisfaction of the following conditions, unless waived in writing by Lender. |
| 2.1 | Lender receives the written notification for drawdown under the Loan sent by
Borrower according to Section 1.2. |
| 2.2 | Borrower Company and Lender or other person (legal or natural person) designated by
Lender have officially executed an Exclusive Business Cooperation Agreement (“Exclusive
Business Cooperation Agreement”), under which Lender or other person designated by
Lender, as an exclusive service provider, will provide Borrower Company with technical
service and business consulting service. |
| 2.3 | Borrower, Borrower Company and Lender or other person (legal or natural person)
designated by Lender have executed a Share Pledge Agreement (“Share Pledge Agreement”),
the contents of which have been confirmed, and according to the Share Pledge Agreement,
Borrower agrees to pledge Borrower Equity Interest to Lender or other person designated
by Lender. |
| 2.4 | Borrower, Lender and Borrower Company have officially executed an Exclusive Option
Agreement, the contents of which have been confirmed, and under which Borrower shall
irrevocably grant Lender an exclusive option to purchase all of the Borrower Equity
Interest. |
| 2.5 | Borrower has executed an irrevocable Power of Attorney (“Power of Attorney”), which
authorizes Lender or other person (legal or natural person) designated by Lender to
exercise all of Borrower’s rights as a shareholder in Borrower Company. |
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| 2.6 | The aforementioned Share Pledge Agreement, Power of Attorney, Exclusive Option
Agreement and Exclusive Business Cooperation Agreement have been entered into before or
on the date of execution of this Agreement and shall have full legal validity without any
default or encumbrance related to these agreements or contracts, and all the related
filing procedures, approvals, authorization, registrations and government procedures have
been completed (as applicable). |
| 2.7 | All the representations and warranties by Borrower in Section 3.2 are true,
complete, correct and not misleading. |
| 2.8 | Borrower has not violated the covenants in Section 4 of this Agreement, and no
event which may affect Borrower’s performance of its obligations under this Agreement has
occurred or is expected to occur. |
| 3. | Representations and Warranties |
| 3.1 | Between the date of this Agreement and the date of termination of this Agreement,
Lender hereby makes the following representations and warranties to Borrower: |
Lender is a corporation duly organized and legally existing in accordance with
the laws of China;
Lender has the legal capacity to execute and perform this Agreement. The
execution and performance by Lender of this Agreement is consistent with
Lender’s scope of business and the provisions of Lender’s corporate bylaws and
other organizational documents, and Lender has obtained all necessary and
proper approvals and authorizations for the execution and performance of this
Agreement; and
This Agreement constitutes Lender’s legal, valid and binding obligations
enforceable in accordance with its terms.
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Between the date of this Agreement and the date of termination of this Agreement,
Borrower hereby makes the following representations and warranties:
Borrower has the legal capacity to execute and perform this Agreement. Borrower
has obtained all necessary and proper approvals and authorizations for the
execution and performance of this Agreement;
This Agreement constitutes Borrower’s legal, valid and binding obligations
enforceable in accordance with its terms; and
There are no disputes, litigations, arbitrations, administrative proceedings or
any other legal proceedings relating to Borrower, nor are there any potential
disputes, litigations, arbitrations, administrative proceedings or any other
legal proceedings relating to Borrower.
| 4. | Borrower’s Covenants |
As and when he becomes, and for so long as he remains a shareholder of Borrower Company,
Borrower covenants irrevocably that during the term of this Agreement, Borrower shall
cause Borrower Company:
to strictly abide by the provisions of the Exclusive Option Agreement and the
Exclusive Business Cooperation Agreement, and to refrain from any
action/omission that may affect the effectiveness and enforceability of the
Exclusive Option Agreement and the Exclusive Business Cooperation Agreement;
at the request of Lender (or a party designated by Lender), to execute
contracts/agreements on business cooperation with Lender (or a party designated
by Lender), and to strictly abide by such contracts/agreements;
to provide Lender with all of the information on Borrower Company’s business
operations and financial condition at Lender’s request;
to immediately notify Lender of the occurrence or possible occurrence of any
litigation, arbitration or administrative proceedings relating to Borrower
Company’s assets, business or income;
at the request of Lender, to appoint any persons designated by Lender as
directors of Borrower Company;
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Borrower covenants that during the term of this Agreement, he shall:
endeavor to keep Borrower Company to engage in its current value-added
telecommunication businesses;
abide by the provisions of this Agreement, the Power of Attorney, the Share
Pledge Agreement and the Exclusive Option Agreement, perform his obligations
under this Agreement, the Power of Attorney, the Share Pledge Agreement and the
Exclusive Option Agreement, and refrain from any action/omission that may
affect the effectiveness and enforceability of this Agreement, the Power of
Attorney, the Share Pledge Agreement and the Exclusive Option Agreement;
not sell, transfer, mortgage or dispose of in any other manner the legal or
beneficial interest in Borrower Equity Interest, or allow the encumbrance
thereon of any security interest or the encumbrance, except in accordance with
the Share Pledge Agreement;
cause any shareholders’ meeting and/or the board of directors of Borrower
Company not to approve the sale, transfer, mortgage or disposition in any other
manner of any legal or beneficial interest in Borrower Equity Interest, or
allow the encumbrance thereon of any security interest, except to Lender or
Lender’s designated person;
cause any shareholders’ meeting and/or the board of directors of the
Borrower Company not to approve the merger or consolidation of Borrower Company
with any person, or its acquisition of or investment in any person, without the
prior written consent of Lender;
immediately notify Lender of the occurrence or possible occurrence of any
litigation, arbitration or administrative proceedings relating to Borrower
Equity Interest;
to the extent necessary to maintain his ownership of the Borrower Equity
Interest, execute all necessary or appropriate documents, take all necessary or
appropriate actions and file all necessary or appropriate complaints or raise
necessary and appropriate defense against all claims;
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without the prior written consent of Lender, refrain from any action / omission
that may have a material impact on the assets, business and liabilities of
Borrower Company;
appoint any designee of Lender as director of Borrower Company, at the request
of Lender;
to the extent permitted by the laws of China, at the request of Lender at any
time, promptly and unconditionally transfer all of Borrower Equity Interest to
Lender or Lender’s designated representative(s) at any time, and cause the
other shareholders of Borrower Company to waive their right of first refusal
with respect to the share transfer described in this Section;
to the extent permitted by the laws of China, at the request of Lender at any
time, cause the other shareholders of Borrower Company to promptly and
unconditionally transfer all of their equity interests to Lender or Lender’s
designated representative(s) at any time, and Borrower hereby waives his right
of first refusal (if any) with respect to the share transfer described in this
Section;
in the event that Lender purchases Borrower Equity Interest from Borrower in
accordance with the provisions of the Exclusive Option Agreement, use such
purchase price obtained thereby to repay the Loan to Lender; and
without the prior written consent of Lender, not to cause Borrower Company to
supplement, change, or amend its articles of association in any manner,
increase or decreases its registered capital or change its share capital
structure in any manner.
| 5. | Liability for Default |
In the event either Party breaches this Agreement or otherwise causes the
non-performance of this Agreement in part or in whole, the Party shall be liable for
such breach and shall compensate all damages (including litigation and attorneys fees)
resulting therefrom. In the event that both Parties breach this Agreement, each Party
shall be liable for its respective breach.
In the event that Borrower fails to perform the repayment obligations set forth in this
Agreement, Borrower shall pay overdue interest of 0.01% per
day for the outstanding payment, until the day Borrower repays the full principal of the
Loan, overdue interests and other payable amounts.
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| 6. | 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 email. 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.
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: | Ku6 (Beijing) Technology Co., Ltd. | |||
| Address: | Room 1206, Xxxxxxx Xxxxx 0X, Xxxxxxxxxxxx Software Garden, Dong Xxx Xxxx, Haidian District, Beijing | |||
| Attn: | Shanyou Li | |||
| Phone: | 00-00-00000000 | |||
| Facsimile: | 00-00-00000000 | |||
| Borrower: | Xxxxxxx Xxx | |||
| Address: | No. 750 of Xxxxxxx Xxxxxxx, Xx Xx Xxxx, Xxxxxxx Xxxxxxxx, Xxxxxxx 000000, P. R. China | |||
| Phone: | 00-00000000000 |
Any Party may at any time change its address for notices by a notice delivered to the
other Party in accordance with the terms hereof.
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| 7. | Confidentiality |
The Parties acknowledge that the existence and the terms of this Agreement and any oral or
written information exchanged between the Parties in connection with the preparation and
performance this Agreement are regarded as confidential information. Each Party shall maintain
confidentiality of all such confidential information, and without obtaining the written
consent of the other Party, it shall not disclose any relevant confidential information to any
third parties, except for the information that: (a) is or will be in the public domain (other
than through the receiving Party’s unauthorized disclosure); (b) is under the obligation to be
disclosed pursuant to the applicable laws or regulations, rules of any stock exchange, or
orders of the court or other government authorities; or (c) is required to be disclosed by any
Party to its shareholders, investors, legal counsels or financial advisors regarding the
transaction contemplated hereunder, provided that such shareholders, investors, legal counsels
or financial advisors shall be bound by the confidentiality obligations similar to those set
forth in this Section. Disclosure of any confidential information by the staff members or
agencies 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.
| 8. | Governing Law and Resolution of Disputes |
| 8.1 | The execution, effectiveness, construction, performance, amendment and termination
of this Agreement and the resolution of disputes shall be governed by the laws of China. |
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| 8.2 | In the event of any dispute with respect to the construction and performance
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of
this Agreement, the Parties shall first resolve the dispute through friendly
negotiations. In the event the Parties fail to reach an agreement on the dispute within
30 days after either Party’s request to the other Party for resolution of the dispute
through negotiations, either 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 in arbitration shall be Chinese. The arbitration award shall be
final and binding on all Parties. |
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| 8.3 | 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. |
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| 9. | Miscellaneous |
| 9.1 | This Agreement shall become effective on the date thereof, and shall expire upon
the date of full performance by the Parties of their respective obligations under this
Agreement. |
| 9.2 | This Agreement shall be written in both Chinese and English language in two copies,
each Party having one copy with equal legal validity. In case there is any conflict
between the Chinese version and the English version, the Chinese version shall prevail. |
| 9.3 | This Agreement may be amended or supplemented through written agreement by and
between Lender and Borrower. Such written amendment agreement and/or supplementary
agreement executed by and between Lender and Borrower are an integral part of this
Agreement, and shall have the same legal validity as this Agreement. |
| 9.4 | In the event that one or several of the provisions of this Agreement 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
Agreement 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 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. |
| 9.5 | The attachments (if any) to this Agreement shall be an integral part of this
Agreement and shall have the same legal validity as this Agreement. |
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IN WITNESS WHEREOF, the Parties have caused their authorized representatives to execute this
Loan Agreement as of the date first above written.
| Lender: Ku6 (Beijing) Technology Co., Ltd. | ||||||
By: |
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| Name: | Shanyou Li | |||||
| Title: | Legal Representative | |||||
| Borrower: Xxxxxxx Xxx | ||||||
By: |
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[Signature Page to Loan Agreement — Xxx Xxxxxxx]
