Exhibit 10.8
This Amended and Restated
Loan Agreement (hereinafter referred to as this “
Agreement”) is entered
into on this 25
th day of February, 2011 in Pudong New Area, Shanghai by and between:
Shengting Information Technology (Shanghai) Co., Ltd. (hereinafter referred to as “Shengting”), a
limited liability company incorporated and existing under the laws of the People’s Republic of
China (hereinafter referred to as the “PRC”) with its principal business address at Room 103,
Building 3, Xx. 000 Xxxxxxxxxxx Xxxx, Xxxxxxxxxx Xx-Xxxx Xxxx, Xxxxxxxx;
and
Xxxx Xxxx-xu (hereinafter referred to as the “Borrower”), a Chinese citizen with the ID Card No.
310226751124032 , whose residence locates at Xxxx 000, Xx. 0, Xxxx 0000, Xxxxxxxxxx Xxxx, Xxxxxx
New Area, Shanghai.
(Shengting and the Borrower hereinafter individually referred to as a “Party” and collectively the
“Parties”.)
Whereas,
| 1. |
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The Borrower has entered into a loan agreement with Shengting dated August 20, 2008
(hereinafter referred to as the “2008 Loan Agreement”), according to which, the Borrower
borrowed RMB500,000 from Shengting for capital contribution of the 50% registered capital of
Shanghai Hongwen Networking Technology Co., Ltd. (hereinafter referred to as “Shanghai
Hongwen”, which was formerly known as “Shanghai Shengxuan Networking Technologies Co., Ltd.”
when it was initially established). |
| 2. |
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The registered capital of Shanghai Hongwen will be increased from the current RMB1
million to RMB10 million. The increased capital amount will be RMB9 million which will be
equally contributed by the Borrower and Mr. Xxxx Xxxx-feng, another shareholder of Shanghai
Hongwen. As such, the Borrower shall contribute RMB4.5 million; |
| 3. |
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Given the Borrower does not have enough funds to pay the increased capital amount, the
Borrower seeks a loan from Shengting for a second time and Shengting agrees to lend such
amount to the Borrower; and |
| 4. |
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The Parties agree to aggregate the loan of RMB500,000 under the 2008 Loan Agreement
together with the loan hereunder, i.e. the total loan owed by the Borrower to Shengting shall
be RMB5 million. Moreover, the Borrower agrees to sign an amended and restated exclusive call
option agreement (hereinafter referred to as the “Exclusive Call Option Agreement”) with
Shengting, under which Shengting or a third party designated by Shengting has an exclusive
option to acquire all or any part of the equity interest held by the Borrower in Shanghai
Hongwen at any time. |
NOW THEREFORE, in order to further specify the rights and obligations of each of the Parties under
the abovementioned loan arrangements, the Parties agree to amend and restate the 2008
Loan
Agreement to read as set forth herein and have hereby reached the following agreement and this
Agreement shall supersede the 2008
Loan Agreement accordingly.
| 1. |
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Type of the Loan: Cash |
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| 2. |
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Loan Amount: RMB5 million (the “Loan”) |
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The Parties hereby confirm that Shengting has provided to the Borrower, and the Borrower has
received from Shengting the Loan as of the execution date hereof. |
| 3. |
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Loan Interest: Zero interest rate |
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The loan term shall commence from the execution date hereof and shall continue and last until
the date of repayment of the Loan by the Borrower as requested by Shengting (the “Loan
Term”). |
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The Borrower shall not use the Loan for any purpose other than making the contributions of
the said registered capital and increased capital. |
| 6. |
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Taxes |
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Any and all taxes in relation to the Loan shall be borne by Shengting. |
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7.1 |
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Shengting may, at any time during the Loan Term by delivery of a repayment notice
(the “Repayment Notice”) to Borrower thirty (30) days in advance, demand at its absolute
discretion that the Borrower shall repay the Loan in whole or in part. |
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7.2 |
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Upon expiry of the thirty (30) day period as set forth in the Repayment Notice,
the Borrower shall repay the Loan in cash, or make such repayments in other forms as
decided by the Board of Directors (or Executive Director) of Shengting by means of a
Board (or Executive Director) resolution duly adopted in accordance with its Articles of
Association and the applicable laws and regulations. |
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7.3 |
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Without the prior written consent of Shengting, the Borrower shall not repay the
loan in whole or in part to Shengting during the Loan Term. |
| 8. |
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Representations and Warranties |
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The Borrower warrants that she is not a director or executive officer of Xxxxxx Interactive
Entertainment Limited, an affiliated company of Shengting. |
| 9. |
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Liability for Breach of Agreement |
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In the event that the Borrower fails to use the Loan according to the agreed purposes,
Shengting is entitled to withdraw the Loan in whole or in part and claim against Borrower for
any losses suffered therefrom by Shengting. |
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10.1 |
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Any dispute arising out of the performance of this Agreement shall be settled
through friendly negotiation by the Parties; if the disputes cannot be resolved through
negotiation, such dispute may be submitted for arbitration. |
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10.2 |
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Any such dispute shall be submitted to the China
International Economic and Trade Arbitration Commission Shanghai Commission (“CIETACSC”) according to the then
effective rules of CIETACSC in force for the time being. Such arbitration shall be
carried out in Shanghai.
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10.3 |
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The awards given by CIETACSC are final and binding upon the Parties. The
arbitration costs (including but not limited to arbitration charges and attorney’s fees)
shall be borne by the losing Party, unless otherwise specified in the given awards. |
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11.1 |
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This Agreement shall become effective upon execution by the Parties and shall
supersede the 2008 Loan Agreement as of the effective date hereof. |
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11.2 |
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Neither Party shall amend or terminate this Agreement without the express
written consent of the other Party. When any Party demands amending or terminating this
Agreement in accordance with the laws and regulations, it shall inform the other Party
of its demand in writing on a timely basis, and the Parties shall negotiate and agree on
any such amendment or termination in writing. |
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11.3 |
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The Borrower shall not transfer any of its rights and/or obligations
hereunder to any third party without the express written consent of Shengting. Shengting
shall have the right to transfer its rights and/or obligations hereunder to any of its
designated third party by delivery of a written notice to the Borrower. |
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11.4 |
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Anything not covered herein shall be made in a supplementary agreement upon the
negotiation of the Parties. Such supplementary agreement shall have the same force and
effect with this Agreement. |
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11.5 |
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This Agreement is made in two (2) counterparts with each of Shengting and the
Borrower holding one (1) counterpart. |
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IN WITNESS WHEREOF, the Parties have caused their authorized representatives to enter into this
Agreement as of the date and year first above written.
Shengting
Shengting Information Technology (Shanghai) Co., Ltd. (Seal)
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Authorized Representative:
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/s/ Xxxxxx Xxxx
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Name: |
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Xxxxxx Xxxx |
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Borrower
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Signed by:
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/s/ Xxxxxx Xxxx
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Name: |
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Xxxx Xxxx-xu |
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