EQUITY PLEDGE AGREEMENT
This
Equity Pledge Agreement (this “Agreement”) is entered into in ShenZhen on
February 08, 2007 between the following parties:
Pledgee:
Party
A:
JingWei HengTong Technology (ShenZhen) Co., Ltd. (经纬恒通科技（深圳）有限公司
)
Registration
Address: Xxxx 0000 X,Xxxxxx Xx-xxxx Xxxxx Xxxxx X,Xxxx An Cyber Park,Futian
District,Shenzhen,China
Pledgor:
Party
B:
Mr. JianGuo Du
ID
No.
310104640815041
Party
C:
Ms. AiLing Yin
ID
No.
310104660918042
Party
D:
Xx. XxxXxxx Yin
ID
No.
410802640601252
Party
E:
ShenZhen JingWei Communication Co., Ltd.(深圳经纬通信技术有限公司)
Registration
Address: Tianxiang Building Block A 13th, Tian An Cyber Park, Futian District,
Shenzhen.
WHEREAS:
1.
The
Party
A, the Pledgee, a wholly-owned foreign enterprise registered in ShenZhen, the
People’s Republic of China (hereinafter “PRC”), has been licensed by the PRC
relevant government authority to carry on the business of development and
manufacturing of computer programs, technical consulting and service for
self-produced products, receiving of the construction of internet system, sales
of self-produced products (except the items not obtained the specified
approval).
2.
Party
E
is a limited liability company duly incorporated and validly existing under
the
PRC law, which is licensed by relevant government authorities to engage in
the
internet information service value-added telecommunication service;
3.
Party
B,
Party C and Party D are shareholders of Party E, in which Party B owns 90%,
Party C owns 8% and Party D owns 2% equity interests of Party E (collectively
the “Equity Interest”);
4.
Party A made a loan in an amount of RMB 2,000,000 (hereinafter the “Loan”)
to Party B, Party C and Party D and Party B, C and D pledged all their equity
interest in Party E to Party A.
5.
Party A and Party E executed a “Exclusive Technology Consulting Services
Agreement” (hereinafter “Technology Consulting Services Agreement” or “Service
Agreement”) on February 08, 2007 with term of 10 years. Based on this agreement,
Party E shall pay technical consulting and service fee (hereinafter the
“Technology Consulting Service Fee” or “Service Fee”) to Party A for offering
technical consulting and service.
6.
In
order
to ensure that Party B, C and D will perform their obligations under the Loan
Agreement and the Pledgee can normally collect the Technology Consulting Service
Fee from Party E, Party B, Party C and Party D (the “Pledgors”) agree to pledge
all their equity interest in Party E as a security for the performance of the
obligation under the Loan Agreement and payment of the Technology Consulting
Service Fee under the Technology Consulting Service Agreement. As a result
of
the foregoing, Party A (the ‘Pledgee”) and Party B, C and D modified and
restated the Original Equity Pledge Agreement.
NOW
THEREFORE, the Pledgee and the Pledgors through mutual negotiations hereby
enter
into this Agreement based upon the following terms:
1.
Definitions
and Interpretation: Unless otherwise provided in this Agreement, the following
terms shall have the following meanings:
1.1
“Pledge”:
refers to the full content of Article 2 hereunder.
1.2
“Equity
Interest”: refers to all the equity interest in Party E legally held by the
Pledgors.
1.3
“Rate
of
Pledge”: refers to the ratio between the value of the Pledge under this
Agreement and the total amount of the Service Fee & the Loan.
1.4
“Term
of
Pledge”: refers to the period provided for under Article 3.2
hereunder.
1.5
“Principal
Agreement”: refers to the Technology Consulting Service Agreement and the Loan
Agreement.
1.6
“Event
of
Default”: refers to any event in accordance with Article 7.1
hereunder.
1.7
“Notice
of Default”: refers to the notice of default issued by the Pledgee in accordance
with this Agreement.
2.
Pledge:
The Pledgors agree to pledge their equity interest in Party E to the Pledgee
as
a security for (i) their obligations under the Loan Agreement and (ii) their
obligations of Party E under the Technology Consulting Service Agreement. Pledge
under this Agreement refers to the rights owned by the Pledgee, who shall be
entitled to a priority in receiving payment by the evaluation or proceeds from
the auction or sale of the equity interest pledged by the Pledgors to the
Pledgee.
3.
Rate
of
Pledge and Term of Pledge
3.1
The
rate
of Pledge: The rate of pledge shall be approximately 100%.
3.2
The
term
of Pledge
3.2.1
Pledge shall take effect as of the date when the equity interest under
this Agreement is recorded in the Register of Shareholder of Party E and the
term is two (2) years after the obligations under the Principal Agreements
will
have been fulfilled. The parties agree that, if situations allow, they will
use
their best efforts to register the pledge with the competent Administration
for
Industry and Commerce at the registration venue of the Party E. But the
Agreement’s effectiveness is not subject to the registration unless the laws of
China provide otherwise.
3.2.2
During
the term of the Pledge, the Pledgee shall be entitled to dispose of the pledged
assets in accordance with this Agreement in the event that Pledgors do not
perform their obligation under the Loan Agreement and Party E fails to pay
exclusive technology consulting service fee in accordance with the Technology
Consulting Service Agreement.
4.
Physical
Possession Of Documents
4.1
During
the term of Pledge under this Agreement, the Pledgors shall deliver the physical
possession of their Certificate of Capital Contribution and the Name List of
Shareholder of Party E to the Pledgee within one (1) week as of the date of
conclusion of this Agreement.
4.2
The
Pledgee shall be entitled to collect the dividends for the equity
interest.
4.3
The
Pledge under this Agreement will be recorded in the Register of Shareholder
of
Party E.
5.
Representation
and Warranty of Pledgors
5.1
The
Pledgors are the legal owners of the equity interest pledged.
5.2
The
Pledgors do not pledge the equity interest or the equity interest is not
encumbered to any other person except for the Pledgee.
6.
Promises
of Pledgors
6.1
During
the effective term of this Agreement, the Pledgors promise to the Pledgee for
its benefit that the Pledgors shall:
6.1.1
Not
transfer or assign the equity interest, create or permit to create any pledges
which may have an adverse effect on the rights or benefits of the Pledgee
without prior written consent from the Pledgee;
6.1.2
Comply
with and implement laws and regulations with respect to the pledge of rights;
present to the Pledgee the notices, orders or suggestions with respect to the
Pledge issued or made by the competent authority within five (5) days upon
receiving such notices, orders or suggestions; and comply with such notices,
orders or suggestions; or object to the foregoing matters at the reasonable
request of the Pledgee or with consent from the Pledgee;
6.1.3
Timely
notify the Pledgee of any events or any received notices which may affect the
Pledgor’s equity interest or any part of its right, and any events or any
received notices which may change the Pledgor’s any warranty and obligation
under this Agreement or affect the Pledgor’s performance of its obligations
under this Agreement.
6.2
The
Pledgors agree that the Pledgee’s right to the Pledge obtained from this
Agreement shall not be suspended or inhibited by any legal procedure launched
by
the Pledgor or any successors of the Pledgor or any person authorized by the
Pledgor or any such other person.
6.3
The
Pledgors promise to the Pledgee that in order to protect or perfect the security
for the payment of the Loan and the Service Fee, the Pledgors shall execute
in
good faith and cause other parties who have interests in the pledge to execute
all the title certificates, contracts, and perform actions and cause other
parties who have interests to take action, as required by the Pledgee; and
make
access to exercise the rights and authorization vested in the Pledgee under
this
Agreement.
6.4
The
Pledgors promise to the Pledgee that they will execute all amendment documents
(if applicable and necessary) in connection to the Certificate of Equity
Interest with the Pledgee or its designated person (natural person or a legal
entity), and provide the notice, order and decision to the Pledgee by who
considers to be necessary within reasonable time.
6.5
The
Pledgors promise to the Pledgee that they will comply with and perform all
the
guarantees, covenants, warranties, representations and conditions for the
benefits of the Pledgee. The Pledgors shall compensate all the losses suffered
by the Pledgee for the reasons that the Pledgors do not perform or fully perform
their guarantees, covenants, warranties, representations and
conditions.
7.
Event
Of
Default
7.1
The
following events shall be regarded as the events of default:
7.1.1
Pledgors
fail to perform the obligations under the Loan Agreement;
7.1.2
Party
E
fails to make full payment of the Service Fee as scheduled under the Service
Agreement;
7.1.3
The
Pledgor makes any material misleading or mistaken representations or warranties
under Article 5 herein, and/or the Pledgor breaches any warranties under Article
5 herein;
7.1.4
The
Pledgor breaches the covenants under Article 6 herein;
7.1.5
The
Pledgor breaches the term or condition herein;
7.1.6
The
Pledgor waives the pledged equity interest or transfers or assigns the pledged
equity interest without prior written consent from the Pledgee;
7.1.7
The
Pledgor’s any external loan, security, compensation, covenants or any other
compensation liabilities (1) are required to be repaid or performed prior to
the
scheduled date due to breach; or (2) are due but can not be repaid or performed
as scheduled and thereby cause the Pledgee to believe that the Pledgor’s
capacity to perform the obligations herein is affected;
7.1.8
Party
E
is incapable of repaying the general debt or other debt;
7.1.9
This
Agreement is illegal or the Pledgor is not capable of continuing to perform
the
obligations herein due to any reason except force majeure;
7.1.10
The
property of the Pledgor is adversely changed causing the Pledgee to believe
that
the capability of the Pledgor to perform the obligations herein is
affected;
7.1.11
The
successors or agents of the Party E are only able to perform a portion of or
refuse to perform the payment obligation under the Service
Agreement;
7.1.12
The
breach of the other terms by action or inaction under this agreement by the
Pledgor.
7.2
The
Pledgor shall immediately give a written notice to the Pledgee if the Pledgor
is
aware of or find that any event under Article 7.1 herein or any event that
may
result in the foregoing events has happened or is going on.
7.3
Unless
the event of default under Article 7.1 herein has been solved to the Pledgee’s
satisfaction, the Pledgee, at any time when the event of default happens or
thereafter, may give a written notice of default to the Pledgor and require
the
Pledgor to immediately make full payment of the loan and the outstanding service
fees under the Service Agreement and other payables or exercise the Pledge
right
in accordance with Article 8 herein.
8.
Exercise
of the Pledge
8.1
The
Pledgor shall not transfer or assign the equity interest without prior written
approval from the Pledgee prior to the full repayment of the loan or the
consulting and service fee under the Service Agreement (whichever date last
occurs).
8.2
The
Pledgee shall give a notice of default to the Pledgor when the Pledgee exercises
the right of pledge.
8.3
Subject
to Article 7.3, the Pledgee may exercise the right of pledge at any time when
the Pledgee gives a notice of default in accordance with Article 7.3 or
thereafter.
8.4
The
Pledgee is entitled to a priority in receiving payment by the evaluation or
proceeds from the auction or sale of whole or part of the equity interest
pledged herein in accordance with legal procedure until the unpaid Service
Fees
under the Service Agreement, the outstanding debt and all other payables of
Pledgors under Loan Agreement are repaid.
8.5
The
Pledgor shall not hinder the Pledgee from exercising the right of pledge in
accordance with this Agreement and shall give necessary assistance so that
the
Pledgee could realize his Pledge.
9.
Assignment
9.1
The
Pledgor shall not donate or transfer its rights and obligations herein without
prior consent from the Pledgee.
9.2
This
Agreement shall be binding upon the Pledgor and his successors and be binding
on
the Pledgee and his each successor and assignee.
9.3
The
Pledgee may transfer or assign his all or any rights and obligations under
the
Service Agreement and Loan Agreement to any individual specified by it (natural
person or legal entity) at any time. In this case, the assignee shall enjoy
and
undertake the same rights and obligations herein of the Pledgee as if the
assignee is a party hereto. When the Pledgee transfers or assigns the rights
and
obligations under the Service Agreement and Loan Agreement, and such transfer
shall only be subject to a written notice serviced to Pledgors, and at the
request of the Pledgee, the Pledgors shall execute the relevant agreements
and/or documents with respect to such transfer or assignment.
9.4
After
the
Pledgee’s change resulting from the transfer or assignment, the new parties to
the pledge shall execute a new pledge contract.
10.
Effectiveness
and Term: The agreement is effective as of the date first set forth above and
from the date when the pledge is recorded on the Register of Shareholder of
Party E. This Agreement will replace the Original Equity Pledge Agreement upon
its effectiveness.
11.
Termination:
This Agreement shall not be terminated until the loan under the Loan Agreement
and the service fees under the Technology Consulting Service Agreement are
paid
off and the pledgors will not undertake any obligations under the Loan Agreement
and Party E will not undertake any obligations under the Service Agreement
any
more, and the Pledgee shall cancel or terminate this Agreement within reasonable
time as soon as practicable.
12.
Formalities
Fees And Other Charges
12.1
The
Pledgors shall be responsible for all the fees and actual expenses in relation
to this Agreement including but not limited to legal fees, cost of production,
stamp tax and any other taxes and charges. If the Pledgee pays the relevant
taxes in accordance with the laws, the Pledgor shall fully indemnify the Pledgee
such taxes paid by the Pledgee.
12.2
The
Pledgors shall be responsible for all the fees (including but not limited to
any
taxes, formalities fees, management fees, litigation fees, attorney’s fees, and
various insurance premiums in connection with disposition of Pledge) incurred
by
the Pledgor for the reason that the Pledgors fail to pay any payable taxes,
fees
or charges for other reasons which cause the Pledgee to recourse by any means
or
ways.
13.
Force
Majeure
13.1
Force
Majeure, which includes but not limited to acts of governments, acts of nature,
fire, explosion, typhoon, flood, earthquake, tide, lightning, war, refers to
any
unforeseen events beyond the party’s reasonable control and cannot be prevented
with reasonable care. However, any shortage of credit, capital or finance shall
not be regarded as an event beyond a Party’s reasonable control. The effected
party by Force Majeure shall notify the other party of such event resulting
in
exemption promptly.
13.2
In
the
event that the affected party is delayed in or prevented from performing its
obligations under this Agreement by Force Majeure, only within the scope of
such
delay or prevention, the affected party will not be responsible for any damage
by reason of such a failure or delay of performance. The affected party shall
take appropriate means to minimize or remove the effects of Force Majeure and
attempt to resume performance of the obligations delayed or prevented by the
event of Force Majeure. After the event of Force Majeure is removed, both
parties agree to resume the performance of this Agreement with their best
efforts.
14.
Confidentiality:
The parties of this agreement acknowledge and make sure that all the oral and
written materials exchanged relating to this contract are confidential. All
the
parties have to keep them confidential and can not disclose them to any other
third party without other parties’ prior written approval, unless: (a) the
public know and will know the materials (not because of the disclosure by any
contractual party); (b) the disclosed materials are required by laws or stock
exchange rules; or (c) materials relating to this transaction are disclosed
to
parties’ legal consultants or financial advisors, however, who have to keep them
confidential as well. Disclosure of the confidential by Employees or hired
institutions of the parties is deemed as the act by the parties, therefore,
subjecting them to liability.
15.
Dispute
Resolution
15.1
This
Agreement shall be governed by and construed in accordance with the PRC
law.
15.2
The
parties shall strive to settle any dispute arising from the interpretation
or
performance, or in connection with this Agreement through friendly consultation.
In case no settlement can be reached through consultation, each party can submit
such matter to China International Economic and Trade Arbitration Commission
(“CIETAC”) for arbitration. The arbitration shall follow the current rules of
CIETAC, and the arbitration proceedings shall be conducted in Chinese and shall
take place in Beijing. The arbitration award shall be final and binding upon
the
parties.
16.
Notice:
Any notice which is given by the parties hereto for the purpose of performing
the rights and obligations hereunder shall be in writing. Where such notice
is
delivered personally, the time of notice is the time when such notice actually
reaches the addressee; where such notice is transmitted by telex or facsimile,
the notice time is the time when such notice is transmitted. If such notice
does
not reach the addressee on business date or reaches the addressee after the
business time, the next business day following such day is the date of notice.
The delivery place is the address first written above of the parties hereto
or
the address advised in writing including facsimile and telex from time to
time.
17.
Entire
Contract: Notwithstanding Article 10, all parties agree that this Agreement
constitute the entire agreement of the Parties with respect to the subject
matters therein upon its effectiveness and supersedes and replaces all prior
oral and/or written agreements and understandings (including but not limited
to
the Original Equity Pledge Agreement) relating to this Agreement.
18.
Severability:
Any provision of this Agreement which is invalid or unenforceable because of
inconsistent with the relevant laws shall, as to that jurisdiction, be
ineffective to the extent of such invalidity or unenforceability, without
affecting in any way the remaining provisions hereof.
19.
Appendices:
The appendices to this Agreement are entire and integral part of this
Agreement.
20.
Amendment
or Supplement
Equity
Pledge
Agreement
7
20.1
Parties
may amend and supply this Agreement with a written agreement. The amendment
and
supplement duly executed and signed by Both Parties shall be part of this
Agreement and shall have the same legal effect as this Agreement.
20.2
This
agreement and any amendments, modification, supplements, additions or changes
hereto shall be in writing and come into effect upon being executed and sealed
by the parties hereto.
21.
Copies
of
the Agreement: This Agreement is executed by English in 5 copies; each Party
holds one and each original has the same legal effects.
Appendix:
1.
Resolution
of the General Shareholders’ Meeting of ShenZhen JingWei Communication Co.,
Ltd.
2.
Register
of Shareholders of ShenZhen JingWei Communication Co., Ltd.
Pledgee:
Party
A:
JingWei HengTong Technology (ShenZhen) Co., Ltd.
Legal
Representative/Authorized Representative:
Seal:
Pledgor:
Party
B:
Mr. JianGuo Du
Signature:
Party
C:
Ms. AiLing Yin
Signature:
Party
D:
Xx. XxxXxxx Yin
Signature:
Party
E:
ShenZhen JingWei Communication Co., Ltd.
Legal
Representative/Authorized Representative:
Seal:
Equity
Pledge
Agreement
8
Appendix
1:
Resolution
of the General Shareholders’ Meeting of ShenZhen JingWei Communication Co.,
Ltd.
As
for
the Modified and Restated Equity Pledge Agreement executed on February 08,
2007
between the shareholders of ShenZhen JingWei Communication Co., Ltd. (the
“Company”) and JingWei HengTong Technology (ShenZhen) Co., Ltd., the
General Shareholders’ meeting of the Company made a resolution unanimously as
follows:
Approve
the shareholders of the Company to pledge all their equity interest of the
company to JingWei HengTong Technology (ShenZhen) Co., Ltd..
The
resolution was executed and submitted on February 08, 2007 by the following
shareholders:
Mr.
JianGuo Du
Signature:
Ms.
AiLing Yin
Signature:
Xx.
XxxXxxx Yin
Signature:
Equity
Pledge Agreement
9
