SHARE PLEDGE AGREEMENT
EXHIBIT
99.6
EXECUTION COPY
XX. XX XXXX XXXX
XX. XX XXX XXXX
as
Pledgors
THE BANK OF NEW
YORK
as
Collateral Agent
and
CITADEL EQUITY FUND
LTD.
Dated as
of December 27, 2006
This
SHARE PLEDGE AGREEMENT
(this
"Agreement") dated as
of December 27, 2006,
among (1) Xx. Xx Xiao Jing and Xx. Xx Xxx Xxxx, each being individuals resident
in the People's Republic
of China (each a "Pledgor" and
together the "Pledgors"), (2) The
Bank of New York, a New York banking corporation, in its capacity as the
collateral agent (the "Collateral Agent")
for the
benefit of the Secured Parties (as defined below) and (3) for the limited
purposes set forth herein, Citadel Equity Fund Ltd. ("Citadel").
WHEREAS,
China Xxxx Xxxx Mining & Resources, Inc. (the "Company") has
issued Senior
Convertible Notes due 2012 (the "Notes") pursuant
to an indenture dated
as of the
date hereof (the "Indenture") between
the Company and The Bank of New York, a New York banking corporation, as trustee
(the "Trustee"); and
WHEREAS,
the Company and Citadel Equity Fund Ltd. have entered into a notes purchase
agreement dated as of December 21, 2006 (the "Notes Purchase Agreement")
for the
sale and purchase of the Notes; and
WHEREAS,
each Pledgor owns the issued and outstanding equity interests set forth beside
its name on Exhibit A attached
hereto and made a part hereof (collectively the "Equity Interests");
WHEREAS,
each Pledgor has previously pledged and delivered, the Equity Interests to
Citadel in respect of certain bridge financings to be repaid as of the date
hereof (the "Outstanding Loans"),
and
Citadel will release its security interests (the "Prior Lien") in such
Equity Interests upon such repayment; and
WHEREAS,
the Pledgors are required to execute and deliver this Agreement pursuant to the
Notes Purchase Agreement and the Indenture.
NOW, THEREFORE, for and
in consideration of the foregoing and of any financial accommodations or
extensions of credit heretofore, now or hereafter made to or for the benefit of
the Secured Parties pursuant to the Indenture or any other agreement, instrument
or document executed pursuant to or in connection therewith, and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, each Pledgor and the Collateral Agent hereby agree as
follows:
1.
Defined
Terms. Unless
otherwise defined herein, each capitalized term used herein that is defined in
the Indenture shall have the meaning specified for such term in the Indenture.
Unless otherwise defined herein or in the Indenture, terms used in Article 8 or
Article 9 of the Uniform Commercial Code as in effect from time to time in the
State of New York are used herein as therein defined.
In addition, the following terms used in this Agreement shall have the meanings
set forth below:
"Secured Obligations"
shall
mean all obligations owing by the Pledgors and the Company
from time to time under the Indenture, the Notes, the Notes Purchase Agreement
and in respect of all
other Note Obligations, including, without limitation, interest accruing during
the pendency of any bankruptcy, insolvency, receivership or other similar
proceeding, regardless of whether allowed or allowable in such
proceeding.
"Secured Parties" shall
mean each of the Collateral Agent, the Trustee, the Holders of the Notes and
each other party to whom any Secured Obligation is owed.
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2. Pledge. Each Pledgor
hereby pledges to the Collateral Agent, for the ratable benefit of the Secured
Parties, and grants to the Collateral Agent for the ratable benefit of the
Secured Parties, a security interest in, the following (collectively, the "Pledged
Collateral"):
(a) all of
the right, title and interest of such Pledgor in the Equity Interests, whether
now existing or hereafter arising, and the certificates representing the shares
of such capital stock (such
now-existing shares owned by each Pledgor and held by Citadel being identified
on Exhibit A
attached hereto and made apart hereof), all options and warrants for the
purchase of additional equity interests in the Company now or hereafter held in
the name of such Pledgor (all of said Equity Interests, options and warrants and
all capital stock held in the name of each Pledgor as a result of the exercise
of such options or warrants being hereinafter collectively referred to as the
"Pledged Stock"), and
all dividends, distributions, cash, instruments and other property from time to
time received, receivable or otherwise distributed in respect of, or in exchange
for, any or all of the Pledged Stock;
(b) all
Additional Equity Interests (as defined in Section
13) from
time to time acquired by the Pledgors from the date hereof in any manner, and
the certificates representing such Additional Equity Interests (any such
additional equity interests shall constitute part of the Pledged Stock and the
Collateral Agent is irrevocably authorized to amend Exhibit A from
time to time to reflect such additional equity interests), and all options,
warrants, dividends, distributions, cash, instruments and other rights and
options from time to time received, receivable or otherwise distributed in
respect of or in exchange for any or all of the Equity Interest or Additional
Equity Interests; and
(c) all
proceeds of the foregoing.
3. Security for Secured
Obligations. The
Pledged Collateral secures the full and prompt payment, performance and
observance when due (whether at stated maturity, by acceleration or otherwise)
of the Secured Obligations.
4. Delivery of Pledged
Collateral; Registration and Acknowledgments. All
certificates representing or evidencing the Pledged Collateral, if any, shall be
delivered to the Collateral Agent by Citadel, and shall be held by or on behalf
of the Collateral Agent, pursuant hereto. All such certificates
shall be in suitable form for transfer by delivery, in form and substance
reasonably satisfactory to the
Collateral Agent. In addition, Citadel shall deliver stock powers, duly executed
by the Pledgors in blank and held under Citadel's custody (the "Powers"), in form and
substance reasonably satisfactory to the Collateral Agent. After the occurrence
and during the continuance of an Event of Default, the Collateral Agent shall
have the right, at any time in its discretion and without notice to any Pledgor,
to transfer to or to register in the name of the Collateral Agent or any of its
nominees any or all of the Pledged Collateral, subject only to the revocable
rights specified in Sections
9 and
10. In
addition, the Collateral Agent shall have the right at any time to exchange
certificates or instruments representing or evidencing
Pledged Collateral for certificates or instruments of smaller or larger
denominations.
5. Pledged Collateral
Adjustments. If,
during the term of this Agreement:
(a) any stock
dividend, reclassification, readjustment or other change is declared or made in
the capital structure of the Company, or any option included within the Pledged
Collateral is exercised, or both, or
(b) any
subscription warrants, shares, or any other rights or options shall be issued in
connection
with the Pledged Collateral,
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in each
case as may be permitted under the Indenture, then all new, substituted and
additional shares, warrants, shares, rights, options or other securities, issued
by reason of any of the foregoing, shall be immediately delivered to and held by
the Collateral Agent, under the terms of this Agreement and shall constitute
Pledged Collateral hereunder.
6. Subsequent Changes Affecting
Pledged Collateral. Each
Pledgor represents and warrants that it has made its own arrangements for
keeping itself informed of changes or potential changes affecting the Pledged
Collateral (including, but not limited to, rights to convert, rights to
subscribe, payment of distributions, reorganization or other exchanges, offers
to purchase and voting rights), and each Pledgor agrees that none of the
Collateral Agent or any Secured Party shall have any obligation
to inform any Pledgor of any such changes or potential changes or to take any
action or omit to take any
action with respect thereto. The Collateral Agent may, after the occurrence and
during the continuance of an Event of Default, without notice and at its option,
transfer or register the Pledged Collateral or any part thereof into its or its
nominee's name with or without any indication that such Pledged Collateral is
subject to the security interest hereunder.
7. Covenants of the Pledgors
and Citadel.
(a) Each
Pledgor agrees that it shall take all necessary steps and actions to perform its
obligations hereunder and effect the transactions contemplated herein; and to do
and perform all things required to be done and performed by it under this
Agreement prior to and after the Closing Date.
(b) Each
Pledgor agrees that, as promptly as possible after the date hereof but no later
than January 6, 2007, (except for the notification of submission set forth in
clause (d)(iii) below), it will cause the Liens created hereunder to be duly
perfected as to all Collateral and provide the Collateral Agent with the
following:
(i)
appropriately completed copies, which have been duly authorized for filing by
the appropriate Person, of Uniform Commercial Code financing statements
naming
each Pledgor as a debtor and the Collateral Agent as the secured party, or other
similar
instruments or documents to be filed in the District of Columbia in order to
perfect the security interests of the Collateral Agent for the benefit of the
Secured Parties pursuant
to this Agreement; or
(ii)
certified copies of Uniform Commercial Code Requests for Information
or Copies
(Form UCC-11), or a similar search report certified by a party acceptable to the
Holders
of at least a majority in aggregate principal amount of the Notes then
outstanding,
dated a date reasonably near to the date hereof, listing all effective financing
statements of record in the District of Columbia which name the Pledgors (under
its present
name and any previous names) as the debtor, together with copies of such
financing statements.
(c) Upon
repayment of the Outstanding Loans pursuant to Section 8(h) of the Notes
Purchase Agreement, Citadel shall execute the acknowledgement of funds and
delivery of notes letter, in the form attached hereto as Exhibit B, deliver such
executed letter to the Company (with a copy to the Pledgors and Collateral
Agent) and return to the Company the notes delivered to Citadel pursuant to the
Outstanding Loans for cancellation thereof by the Company. In addition, Citadel
shall assign any existing Uniform Commercial Code financing statements or other
similar financing statements with respect to the Prior Lien and promptly provide
reasonably satisfactory evidence thereof to the Pledgors and the Collateral
Agent. The Collateral Agent acknowledges
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and
agrees that the Pledgors shall have no liability whatsoever for Citadel's
performance of its obligations hereunder, and Citadel hereby agrees to indemnify
the Pledgors for any claims with respect thereto.
(d) All
Uniform Commercial Code financing statements of
other
similar financing statements
required pursuant to clause (b)(i) above (collectively, the "Filing Statements")
shall
have been delivered to Choicepoint Business and Government Services, Inc. or
another similar filing service company reasonably acceptable to the Holders of
at least a majority in aggregate principal amount of the Notes then outstanding
(the "Filing Agent") on the
date hereof. The Pledgors shall provide evidence reasonably satisfactory to the
Holders of at least a majority in aggregate principal amount of the Notes then
outstanding and the Collateral Agent that (i) the Filing Agent has received all
of the Filing Statements within 10 days following the date hereof, (ii) the
Filing Statements have been submitted for filing in the District of Columbia
within 10 days following the date hereof and (iii) within 30 days following the
date hereof, the Filing Statements have been accepted for filing and have not
been rejected.
8. Representations and
Warranties. Each
Pledgor represents and warrants, severally and not
jointly, as follows:
(a) He or she
is the sole legal and beneficial owner of the Equity Interests set forth
opposite
its name on Exhibit A attached
hereto and made a part hereof, free and clear of any Lien except
for the Lien created by this Agreement and the Prior Lien;
(b) All of
the Pledged Stock has been duly authorized and validly issued, is fully paid and
non-assessable;
(c) All of
the Pledged Stock is presently represented by the certificates listed on
Exhibit A hereto.
As of the date hereof, there are no existing options, warrants, calls or
commitments
of any character whatsoever relating to the Pledged Stock;
(d) He or she
has full power and authority to enter into this Agreement;
(e) There are
no restrictions upon the voting rights associated with, or upon the transfer of,
any of the Pledged Collateral except pursuant to the Act;
(f) He or she
has the right to vote, pledge, assign and grant a security interest in or
otherwise transfer such Pledged Collateral free of any Liens, except as set
forth in paragraphs (a) and (e) above;
(g) No
authorization, approval, or other action by, and no notice to or filing with,
any Governmental
Authority is required either (i) for the pledge by him or her of the Pledged
Collateral pursuant to this Agreement or for the execution, delivery or
performance of this Agreement by him or her
or (ii) for the exercise by the Collateral Agent of the voting or other rights
provided for in this Agreement or the remedies in respect of the Pledged
Collateral pursuant to this Agreement (except as may be required in connection
with such disposition by laws
affecting the offering and sale of securities generally and realization of
collateral);
(h) After
the discharge of the Prior Lien, the pledge of the Pledged Collateral pursuant
to this Agreement, together with the delivery of the stock certificates
pertaining thereto to the Collateral Agent, creates a valid and perfected first
priority security interest in the Pledged
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Collateral,
in favor of the Collateral Agent for the benefit of the Secured Parties,
securing the payment and performance of the Secured Obligations;
(i) This
Agreement has been duly executed and delivered by and on behalf of such Pledgor
and constitutes the legal, valid and binding obligation of such Pledgor,
enforceable against such Pledgor in accordance with its terms;
(j) There
is no action, suit, proceeding, governmental investigation or arbitration, at
law or in equity, or before or by any Governmental Authority, pending, or to the
knowledge of such Pledgor, threatened against such Pledgor or any of its
property which will materially and adversely
affect the ability of each Pledgor to perform its obligations under this
Agreement;
(k) The
execution, delivery and performance of this Agreement by such Pledgor (i)
does not
violate, constitute a breach of or a default (with the passage of time or
otherwise) under, require
the consent of any person or a Governmental Authority or result in the
imposition of a Lien (other than the Lien created by this Agreement and the
Prior Lien) on any assets of such Pledgor under or pursuant to (x) any
indenture, mortgage, or any other agreement to which such Pledgor
is a party or by which any of its properties or assets may be bound or (y) any
statute, rule, regulation, law or ordinance, or any judgment, decree or order
applicable to such Pledgor, and (ii) does not violate any restriction on such
transfer or encumbrance of the Pledged Collateral;
(1) The
Powers are effective endorsements duly executed by an appropriate person and
give the Collateral Agent the authority they purport to confer;
(m) The
Pledged Stock constitutes such percent of the issued and outstanding shares of
Equity Interests of the issuer thereof as set forth in Exhibit A hereto
and all of its equity interest in the Company as at the date hereof;
and
(n) His
or her principal residence is located in the People's Republic of
China.
9. Voting
Rights. During
the term of this Agreement, and except as provided in this Section
9. each
Pledgor, in its capacity as stockholders of the Company, shall have the right to
vote the Pledged Stock held by it on all corporate questions in a manner not
inconsistent with the terms of this Agreement and the other Transaction
Documents to which it is party; provided,
however, that no
vote shall be cast, and no consent shall be given or action taken, which would
have the effect of impairing the position or interest of any Secured Party in
respect of the Pledged Collateral or which would authorize, effect or consent to
(unless and to the extent expressly permitted by the Transaction Documents to
which it is party) (i) the dissolution or liquidation, in whole or in part, of
the Company; (ii) the consolidation or merger of the Company with any other
Person; (iii) the sale, disposition or encumbrance of all or substantially all
of the assets of the Company, except for Liens in favor of the Collateral Agent
for the benefit
of the Secured Parties; (iv) any change in the authorized number of shares, the
stated capital or the authorized share capital of the Company or the issuance of
any additional shares of its Equity Interests; or (v) the
alteration of the voting rights with respect to the Equity Interests of the
Company. After the occurrence
and during the continuation of an Event of Default, the Collateral Agent may
(but shall not be obligated
to), at the Collateral Agent's option, exercise all voting rights pertaining to
the Pledged Collateral, including the right to take action by shareholder
consent.
10. Dividends and Other
Distributions.
(a) So
long as no Event of Default shall have occurred and be continuing:
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(i) Each
Pledgor shall be entitled to receive and retain any and all dividends and
distributions paid in respect of the Pledged Collateral, notwithstanding such
dividends and distributions being subject to the pledge and assignment thereof
pursuant to Section 2: provided,
however, that any
and all:
(A) dividends
and distributions paid or payable other than in cash with respect to, and
instruments and other property received, receivable or otherwise distributed
with respect to, or in exchange for, any of the Pledged Collateral;
(B) dividends
and other distributions paid or payable in cash with respect
to any of the Pledged Collateral on account of a partial or total liquidation or
dissolution or in connection with a reduction of capital, capital surplus or
paid-in
surplus; and
(C) cash
paid, payable or otherwise distributed with respect to principal of, or in
redemption of, or in exchange for, any of the Pledged Collateral;
shall be
Pledged Collateral, and shall be forthwith delivered to the Collateral Agent to
hold, for the benefit of the Secured Parties, as Pledged Collateral and shall,
if received by the relevant Pledgor, be received in trust for the Collateral
Agent for the benefit of the Secured Parties; and
(ii) The
Collateral Agent shall execute and deliver (or cause to be executed and
delivered) to the relevant Pledgor all such proxies and other instruments as
such Pledgor may reasonably request for the purpose of enabling such Pledgor to
receive the dividends
which it is authorized to receive and retain pursuant to clause (i)
above.
(b) After
the occurrence and during the continuation of an Event of Default:
(i) All
rights of the Pledgors to receive the dividends and other distributions which it
would otherwise be authorized to receive and retain pursuant to Section 10(a)(i)
hereof
shall cease, and all such rights shall thereupon become vested in the Collateral
Agent, for the benefit of the Secured Parties, which shall thereupon have the
sole right to receive
and hold as Pledged Collateral such dividends and other
distributions;
(ii) All
dividends and other distributions which are received by each Pledgor contrary to
the provisions of clause (i) of this Section
10(b) shall be
received in trust for the Collateral Agent, for the benefit of the Secured
Parties;
(iii)
Each Pledgor shall, at the relevant Pledgor's expense, execute and deliver, and
use its best efforts to cause the Company and its officers and directors to
execute and deliver, all such instruments and documents, and do or cause to be
done all such other acts and things, as may be required by applicable law or may
be necessary or, in the opinion of the Holders of at least a majority in
aggregate principal amount of the Notes then outstanding or their counsel,
advisable to register the applicable Pledged Collateral under the provisions of
the Act, and to exercise its best efforts as owner of the Pledged
Stock to cause the registration statement relating thereto to become effective
and to remain
effective for such period as prospectuses are required by law to be furnished,
and to make all amendments and supplements thereto and to the related
prospectus
6
which, in
the opinion of the Holders of at least a majority in aggregate principal amount
of the Notes then outstanding or their counsel, are necessary or advisable, all
in conformity with the requirements of file Act and the rules and regulations of
the Commission applicable thereto;
(iv) Each
Pledgor shall, at the relevant Pledgor's expense, use his or her best efforts to
cause the Company to qualify the Pledged Collateral under state securities or
"Blue Sky" laws and to obtain all necessary governmental approvals for the sale
of the Pledged Collateral;
(v) Each
Pledgor, if applicable, shall, at the relevant Pledgor's expense, use his or her
best efforts to cause the Company to make available to the holders of its
securities, as soon as practicable, earning statements which will satisfy the
provisions of Section 11(a) of the Act; and
(vi) Each
Pledgor shall, at the relevant Pledgor's expense, do or cause to be done all
such other acts and things as may be necessary to make such sale of the Pledged
Collateral
or any part thereof valid and binding and in compliance with applicable
law.
Each
Pledgor will reimburse the Collateral Agent for all expenses incurred by the
Collateral Agent, including, without limitation, reasonable attorneys' and
accountants' fees and expenses in connection with the foregoing. Upon or at any
time after the occurrence and during the continuation of an Event of Default, if
the Secured Parties (pursuant to the terms of the Indenture) determines that,
prior to any public offering of any securities constituting part of the Pledged
Collateral, such securities should be registered under the Act and/or registered
or qualified under any other federal or state law and such registration and/or
qualification is not practicable, then each Pledgor agrees that it will be
commercially reasonable if a private sale, upon at least ten (10) Business Days'
notice to such Pledgor, is arranged so as to avoid
a public offering, even though the sales price established and/or obtained at
such private sale may be
substantially less than prices which could have been obtained for such security
on any market or exchange or in any other public sale.
11. Transfers and other
Liens. Other
than as permitted in the Indenture, each Pledgor agrees
that it will not (i) sell, transfer or otherwise dispose of, or grant any option
with respect to, any of the Pledged Collateral without the prior written consent
of the Collateral Agent, or (ii) create or permit to exist any
Lien upon or with respect to any of the Pledged Collateral (except for the
security interest under this
Agreement and the Prior Lien). Each Pledgor further agrees that it will procure,
or take reasonable efforts to procure, that the Company and any other direct or
indirect subsidiary thereof shall carry oh business only in the ordinary course
and will not (unless and to the extent expressly permitted by the Transaction
Documents) dispose of or agree to dispose of a substantial part of its assets or
undertaking without the prior written approval of the Collateral
Agent.
12. Defense of
Title. Each
Pledgor will defend the title to the Pledged Collateral and the Liens of the
Collateral Agent in the Pledged Collateral against the claim of any Person
(other than Citadel pursuant to the Prior Lien) and will maintain and preserve
the Liens created under this Agreement.
13. Additional Equity
Interests. Each Pledgor will, upon obtaining ownership of any additional
equity interests in the Company, which equity interests are not already Pledged
Collateral (the "Additional
Equity Interests"), promptly (and in any event within three (3) Business
Days) deliver to the Collateral Agent an amendment to this Agreement, duly
executed by each Pledgor and in form and substance satisfactory to the
Collateral Agent, in respect of any such Additional Equity Interests,
pursuant
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to which
the Pledgors shall pledge to the Collateral Agent all of such Additional Equity
Interests. Each Pledgor hereby authorizes the Collateral Agent to attach such
amendment to this Agreement and agrees that all Pledged Stock listed on any such
amendment delivered to the Collateral Agent shall for all purposes hereunder be
considered Pledged Collateral.
14.
Remedies.
(a) The
Collateral Agent shall have, in addition to any other rights given under this
Agreement or by law, all of the rights and remedies with respect to the Pledged
Collateral of a secured party under the Uniform Commercial Code as in effect in
the State of Nevada (the "UCC"). In addition, after the occurrence and during
the continuation of an Event of Default, the Collateral Agent shall have such
powers of sale and other powers as may be conferred by applicable law. With
respect to the Pledged Collateral or any part thereof which shall then be in or
shall thereafter come into the possession or custody of the Collateral Agent or
which the Collateral Agent shall otherwise have the ability to transfer under
applicable law, the Collateral Agent may, in its sole discretion, without notice
except as specified below, after the occurrence and during the continuation of
an Event of Default, sell or cause the same to be sold at any exchange, broker's
board or at public or private sale, in one or more sales or lots, at such price
as the Collateral Agent or the Secured Parties (pursuant to the terms of the
Indenture) may deem best, for cash or on credit or for future delivery, without
assumption of any credit risk, and the purchaser of any or all of the Pledged
Collateral so sold shall thereafter own the same, absolutely free from any
claim, encumbrance or right of any kind whatsoever. The Collateral Agent or any
Secured Party may, in its own name, or in the name of a designee or nominee, buy
the Pledged Collateral
at any public sale and, if permitted by applicable law, buy the Pledged
Collateral at any private
sale. Each Pledgor agrees to pay to the Collateral Agent all reasonable expenses
(including, without limitation, court costs and reasonable attorneys' and
paralegals' fees and expenses)
of, or incident to, the enforcement of any of the provisions
hereof.
(b) Unless
any of the Pledged Collateral threatens to decline speedily in value or is or
becomes of a type sold on a recognized market, the Collateral Agent will give
the Pledgors reasonable notice of the time and place of any public sale thereof,
or of the time after which any private sale or other intended disposition is to
be made. Any sale of the Pledged Collateral conducted in conformity with
reasonable commercial practices of banks, commercial finance companies,
insurance companies or other financial institutions disposing of property
similar to the Pledged Collateral shall be deemed to be commercially reasonable.
Notwithstanding any provision to the contrary contained herein, each Pledgor
agrees that any requirements of reasonable notice shall be met if such notice is
received by such Pledgor as provided in Section 31 below at least ten
(10) Business Days before the time of the sale or disposition. Any other
requirement
of notice, demand or advertisement for sale is waived, to the extent permitted
by law.
(c) Given
that federal and state securities laws may impose certain restrictions on the
method by
which a sale of the Pledged Collateral may be effected after an Event of
Default, each Pledgor agrees that after the occurrence and during the
continuation of an Event of Default, the Collateral Agent may, from time to
time, attempt to sell all or any part of the Pledged Collateral by means of a
private placement restricting the bidders and prospective purchasers to those
who are
qualified and will represent and agree that they are purchasing for investment
only and not for distribution.
In so doing, the Collateral Agent may solicit offers to buy the Pledged
Collateral, or any part of it, from a limited number of investors deemed by the
Collateral Agent, in its reasonable judgment, to be financially responsible
parties who might be interested in purchasing the
Pledged Collateral. If the Collateral Agent solicits such offers from not less
than four (4) such
8
investors,
then the acceptance by the Collateral Agent of the highest offer obtained
therefrom shall be
deemed to be a commercially reasonable method of disposing of such Pledged
Collateral; provided,
however, that
this Section
14 does not
impose a requirement that the Collateral Agent solicit
offers from four or more investors in order for the sale to be commercially
reasonable.
(d) Each
Pledgor agrees to the maximum extent permitted by applicable law that
following
the occurrence and during the continuance of an Event of Default it will not at
any time plead,
claim or take the benefit of any appraisal, valuation, stay, extension,
moratorium or redemption law now or hereafter in force in order to prevent or
delay the enforcement of this Agreement, or the absolute sale of the whole or
any part of the Pledged Collateral or the possession
thereof by any purchaser at any sale hereunder, and each Pledgor waives the
benefit of all such
laws to the extent it lawfully may do so. Each Pledgor agrees that it will not
interfere with any right, power and remedy of the Collateral Agent provided for
in this Agreement or now or hereafter existing at law or in equity or by statute
or otherwise, or the exercise or beginning of the exercise by the Collateral
Agent of any one or more of such rights, powers or remedies. No failure or delay
on the part of the Collateral Agent to exercise any such right, power or remedy
and no notice or demand which may be given to or made upon any Pledgor by the
Collateral Agent with respect to any such remedies shall operate as a waiver
thereof, or limit or impair the Collateral Agent's right to take any action or
to exercise any power or remedy hereunder or prejudice its rights as against any
Pledgor in any respect.
(e) Each
Pledgor further agrees that a breach of any of the covenants contained in this
Section
14 will
cause irreparable injury to the Collateral Agent, that the Collateral Agent
shall
have no adequate remedy at law in respect of such breach and, as a consequence,
agrees that each and
every covenant contained in this Section
14 shall be
specifically enforceable against such Pledgor, and each Pledgor hereby waives
and agrees not to assert any defenses against an action for specific performance
of such covenants.
15. Security Interest
Absolute. All rights of the Collateral Agent and security interests
hereunder, and all obligations of the Pledgors hereunder, shall be absolute and
unconditional irrespective of:
(a) Any lack
of validity or enforceability of the Indenture or any other agreement or
instrument relating thereto;
(b) Any
change in the time, manner or place of payment of, or in any other term of,
all or
any part of the Secured Obligations, or any other amendment or waiver of or any
consent to any
departure from the Indenture or this Agreement;
(c) Any
exchange, release or non-perfection of any other collateral, or any release or
amendment
or waiver of or consent to departure from any guaranty, for all or any part of
the Secured Obligations;
(d) the
insolvency of any Pledgor; or
(e) any other
circumstance which might otherwise constitute a defense available to,
or a
discharge of, any Pledgor in respect of the Secured Obligations or of this
Agreement.
16. Collateral Agent Appointed
Attorney-in-Fact. Each Pledgor hereby appoints the Collateral Agent its
attorney-in-fact, with full authority, in the name of such Pledgor or otherwise,
after
9
the
occurrence and during the continuation of an Event of Default, from time to time
in the Collateral Agent's sole discretion, to take any action and to execute any
instrument which the Collateral Agent may deem
necessary or advisable to accomplish the purposes of this Agreement, including,
without limitation, to
receive, endorse and collect all instruments made payable to the Pledgors
representing any dividend or other
distribution in respect of the Pledged Collateral or any part thereof and to
give full discharge for the same and
to arrange for the transfer of all or any part of the Pledged Collateral on the
books of the Company to the name of the Collateral Agent or the Secured
Collateral Agent's nominee.
17.
Non-Recourse
Obligations,
Notwithstanding any other provision in this Agreement,
the Notes Purchase Agreement or any other document relating to this Agreement or
the Notes Purchase Agreement (collectively, the "Loan Documents"),
(i) no
Pledgor shall be personally liable, and the
Collateral Agent shall not
commence or prosecute any action against any Pledgor, for payment or
performance
of any Secured Obligations, and any indemnification or expense reimbursement
provided for herein or therein; (ii) the Collateral Agent shall not seek,
obtain, or enforce a deficiency judgment against any
Pledgor; (iii) the Collateral Agent's recourse for the Secured Obligations shall
be limited to the Pledged
Collateral; and (iv) the Collateral Agent waives any right to exercise any
banker's right of set-off, arising
from any of the Secured Obligations, against any funds of any Pledgor in the
Collateral Agent's custody, control, or possession.
18.
Waivers. Each
Pledgor waives to the fullest extent permitted by applicable laws presentment
and demand for payment of any of the Secured Obligations, protest and notice of
dishonor or Event of Default with respect to any of the Secured Obligations and
all other notices to which any Pledgor might
otherwise be entitled except as otherwise expressly provided herein or in the
Indenture.
19. Term. This
Agreement shall remain in full force and effect until the final
payment
in full, in cash, of the Secured Obligations. Upon the termination of this
Agreement as provided above
(other than as a result of the sale of the Pledged Collateral), the Collateral
Agent will release the security
interest created hereunder and, if it then has possession of any Pledged Stock
pledged hereunder, will
deliver such Pledged Stock previously delivered to it and the Powers to the
relevant Pledgor.
20. Reinstatement. This
Agreement shall remain in full force and effect and continue to be
effective should any petition be filed by or against any Pledgor or the Company
for liquidation or reorganization, should such Pledgor or the Company become
insolvent or make an assignment for the benefit of creditors or should a
receiver or trustee be appointed for all or any significant part of any
Pledgor's or the Company's assets, and shall continue to be effective or be
reinstated, as the case may be.
21. Definitions. The
singular shall include the plural and vice versa and any gender shall include
any other gender as the context may require.
22. Binding Effect; Successors
and Assigns. This Agreement
shall be binding upon each Pledgor and its successors and assigns, and shall
inure to the benefit of the Collateral Agent, the Secured Parties and their
respective successors and assigns. Nothing set forth herein is intended or shall
be construed to give any other Person any right, remedy or claim under, to or in
respect of this Agreement, the Indenture or any Collateral. Each Pledgor's
successors shall include, without limitation, a receiver, trustee or
debtor-in-possession of or for such Pledgor.
23. Governing
Law. THIS
AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
24. Consent to Jurisdiction; and
Service of Process. THE
COLLATERAL AGENT HEREBY CONSENTS TO THE NON-EXCLUSIVE JURISDICTION OF THE STATE
OR FEDERAL
10
COURTS
LOCATED IN COUNTY OF NEW YORK, CITY OF NEW YORK, NEW YORK. EACH PLEDGOR HEREBY
CONSENTS AND AGREES THAT THE STATE OR FEDERAL COURTS LOCATED IN COUNTY OF NEW
YORK, CITY OF NEW YORK, NEW YORK SHALL HAVE EXCLUSIVE JURISDICTION TO HEAR AND
DETERMINE ANY CLAIMS OR DISPUTES BETWEEN THE PLEDGORS AND THE COLLATERAL AGENT
PERTAINING TO THIS AGREEMENT OR TO ANY MATTER ARISING OUT OF OR RELATING TO THIS
AGREEMENT; PROVIDED THAT THE
COLLATERAL AGENT AND EACH PLEDGOR ACKNOWLEDGE THAT ANY APPEALS FROM THOSE COURTS
MAY HAVE TO BE HEARD BY X XXXXX XXXXXXX XXXXXXX XX XXX XXXX XXXXXX; AND,
PROVIDED, FURTHER, NOTHING
IN THIS AGREEMENT SHALL BE DEEMED OR OPERATE TO PRECLUDE THE COLLATERAL AGENT
FROM BRINGING SUIT OR TAKING OTHER LEGAL ACTION IN ANY OTHER JURISDICTION TO
REALIZE ON THE COLLATERAL OR ANY OTHER SECURITY FOR THE GUARANTEED OBLIGATIONS,
OR TO ENFORCE A JUDGMENT OR OTHER COURT ORDER IN FAVOR OF THE COLLATERAL AGENT.
EACH PLEDGOR EXPRESSLY SUBMITS AND CONSENTS IN ADVANCE TO SUCH JURISDICTION IN
ANY ACTION OR SUIT COMMENCED IN ANY SUCH COURT, AND EACH PLEDGOR HEREBY WAIVES
ANY OBJECTION WHICH IT MAY HAVE
BASED UPON LACK OF PERSONAL JURISDICTION, IMPROPER VENUE OR FORUM NON CONVENIENS AND
HEREBY CONSENTS TO THE GRANTING OF SUCH LEGAL OR EQUITABLE RELIEF AS IS DEEMED
APPROPRIATE BY SUCH COURT. EACH PLEDGOR HEREBY WAIVES PERSONAL SERVICE OF THE
SUMMONS, COMPLAINT AND OTHER PROCESS ISSUED IN ANY SUCH ACTION OR SUIT AND
AGREES THAT SERVICE OF SUCH SUMMONS, COMPLAINTS AND OTHER PROCESS MAY BE MADE BY
REGISTERED OR CERTIFIED MAIL, ADDRESSED TO SUCH PLEDGOR AT THE ADDRESS SET FORTH
IN THIS AGREEMENT FOR THAT PLEDGOR AND THAT SERVICE SO MADE SHALL BE DEEMED
COMPLETED
UPON THE EARLIER OF ACTUAL RECEIPT THEREOF OR FIVE (5) DAYS AFTER DEPOSIT
IN THE U.S. MAILS, PROPER POSTAGE PREPAID. The Collateral Agent shall have the
right to proceed against each Pledgor or its personal property in a court in any
location to enable the Collateral Agent to obtain personal jurisdiction over any
Pledgor, to realize on the Pledged Collateral or any other security for the
Secured Obligations or to enforce a judgment or other court order entered in
favor of the Collateral Agent.
25. Waiver of Jury
Trial. Each
Pledgor and the Collateral Agent waives, to the extent permitted by applicable
law, any right to trial by jury in any dispute, whether sounding in contract,
tort, or otherwise, between the Collateral Agent and each Pledgor arising out of
or related to the transactions
contemplated by this Agreement or any other instrument, document or agreement
executed or delivered
in connection herewith. Either of the Pledgors or the Collateral Agent may file
an original counterpart or a copy of this Agreement with any court as written
evidence of the consent of the parties hereto to the waiver of their right to
trial by jury.
26. Advice of
Counsel. Each
Pledgor represents and warrants to the Collateral Agent that it
has had the opportunity to discuss this Agreement and, specifically, the
provisions of Sections
23 through
25 hereof, with
its counsel.
27. Severability. If any
provision of this Agreement is held to be prohibited or unenforceable in any
jurisdiction the substantive laws of which are held to be applicable hereto,
such prohibition or unenforceability shall not affect the validity or
enforceability of the remaining provisions hereof to the extent permitted by
applicable law, and shall not invalidate or render unenforceable such provision
in any other jurisdiction to the extent permitted by applicable
law.
28. Further
Assurances. Each
Pledgor agrees that at any time and from time to time, at the expense of the
relevant Pledgor, he or she will promptly execute and deliver all further
instruments
11
and
documents, and take all further action, that may be required by applicable law
or may be necessary or desirable, or that the Collateral Agent may reasonably
request, in order to perfect and protect any security interest
granted or purported to be granted hereby or to enable the Collateral Agent to
exercise and enforce
its rights and remedies hereunder with respect to any of the Pledged Collateral,
including, without limitation,
the filing of financing statements under Article 9 of the Uniform Commercial
Code of New York. Each Pledgor hereby further agrees that he or she shall not
make any change to his or her name or jurisdiction of principal residence
without prior written notice. Each of the Pledgors authorizes the Collateral
Agent to file any financing statements and amendments thereto relating to the
Pledged Collateral, in form and substance required by the Collateral Agent
(acting at the direction of the Holders pursuant
to the Indenture), which describe the Pledged Collateral and include therein all
other information which is required by Article 9 of the UCC or other applicable
law with respect to the preparation or filing
of a
financing statement or amendment.
29.
The Collateral Agent's Duty
of Care.
(a) The
Collateral Agent shall not be liable for any acts, omissions, errors of judgment
or mistakes of fact or law including, without limitation, acts, omissions,
errors or mistakes with respect to the Pledged Collateral, except for those
arising out of or in connection with the Collateral Agent's (i) gross negligence
or willful misconduct, or (ii) failure to use reasonable care with respect to
the safe custody of the Pledged Collateral in the Collateral Agent's possession.
Without limiting the generality of the foregoing, the Collateral Agent shall be
under no obligation to take any steps necessary to preserve rights in the
Pledged Collateral against any other parties but may do so at its option. All
expenses incurred in connection therewith shall be for the sole account of the
Pledgors, and shall constitute part of the Secured Obligations secured
hereby.
(b) No
provision of this Agreement shall require the Collateral Agent to expend or
risk its
own funds or otherwise incur any financial liability in the performance of any
of its duties hereunder, or in the exercise of any of its rights or powers, if
it shall have reasonable
grounds
for believing
that repayment of such funds or adequate indemnity against such risk or
liability is not reasonably assured to it. The Collateral Agent shall have no
duties or responsibilities except those expressly set forth in this Agreement.
The Collateral Agent shall not be liable for any delay or
failure to act as may be required hereunder when such delay or failure is due to
any act of God, interruption
or other circumstances beyond its control; provided, that it
exercises such diligence as the circumstances may reasonably require. The
Collateral Agent shall be entitled to rely on any
communication, instrument, paper or other document reasonably believed by it to
be genuine and
correct and to have been signed or sent by the proper person. After receiving
any direction from the Pledgors or the Secured Parties, the Collateral Agent may
(at the expense of the Pledgors) consult with legal counsel of such Agents'
selection (provided that such counsel shall be a firm of nationally recognized
reputation), and the written advice of such counsel (or any Opinion of Counsel
caused by the Pledgors to be furnished by the Company to the Collateral Agent)
shall be full and complete protection in respect of any action taken, suffered
or omitted by it hereunder in good faith and in reliance thereon.
(c)
The
Collateral Agent shall not be deemed to have notice of any Event of Default
unless an officer of the Collateral Agent has actual knowledge thereof or unless
written notice of any such
Event of Default is received by the Collateral Agent at the office of the
Collateral Agent specified
in Section
31 of this
Agreement.
12
(d) The
Collateral Agent's sole duty with respect to the custody, safekeeping and
physical preservation of the Pledged Collateral shall be to deal with it in the
same manner as the Collateral Agent deals with similar property for its own
account.
(e) In no
event shall the Collateral Agent be liable for special, indirect or
consequential loss or damage of any kind whatsoever (including but not limited
to lost profits), even if the Collateral Agent has been advised of the
likelihood of such loss or damage and regardless of the form of
action.
30.
Additional Provisions
Relating to the Collateral Agent.
(a) Any
corporation, bank, trust company or association into which the Collateral Agent
may be merged or converted or with which it may be consolidated, or any
corporation, bank, trust company or association resulting from any merger,
conversion or consolidation to which the Collateral Agent shall be a party, or
any corporation, bank, trust company or association succeeding to all or
substantially all the corporate trust business of the Collateral Agent, shall be
the successor of the Collateral Agent hereunder, without the execution or filing
of any paper or any further act on the part of any of the parties
hereto.
Any
resignation or removal of the Collateral Agent as Trustee under the Indenture in
accordance with the provisions thereof shall result in a resignation or removal
of the Collateral Agent hereunder. The provisions of Section 7.08 of the
Indenture with respect to replacement of the Trustee shall be applicable to the
replacement of the Collateral Agent. Upon any resignation, removal or
replacement of the Collateral Agent, the Collateral Agent (or its successor)
shall provide written notice to each of the Pledgors, but the failure provide
such notice shall not
relieve the Pledgors of any of their obligations hereunder.
(b) At any
time or times, for the purpose of meeting any legal requirements of any
jurisdiction in which any of the Pledged Collateral may at the time be located,
the Collateral Agent shall have the power to appoint any Person or Persons
either to act as a co-collateral agent or as co-collateral agents, jointly with
the Collateral Agent of all or any part of the Pledged Collateral or to act as a
separate collateral agent or separate collateral agents of all or any part of
the Pledged Collateral and to vest in such Person or Persons, in such capacity,
such title to the Pledged Collateral or any part thereof, and such rights,
powers, duties or obligations as the Collateral Agent may consider necessary or
desirable, subject to the other provisions of this Section
30.
(c) Unless
otherwise provided in the instrument appointing such co-collateral or separate
collateral agent, every co-collateral agent or separate collateral agent shall,
to the extent permitted by law, be appointed subject to the following
terms:
(i) All
rights, power, duties and obligations under this Agreement conferred upon the
Collateral Agent in respect of the custody, control or management of the
collateral, shall be exercised solely by the Collateral Agent;
(ii) All
rights, powers, duties and obligations conferred or imposed upon the collateral
agents shall be conferred or imposed upon and exercised or performed by the
Collateral Agent, or by the Collateral Agent and such co-collateral agent or
co-collateral agents, or separate collateral agent or separate collateral agents
jointly, except to the extent that, under the law of any jurisdiction in which
any particular act or acts are to be
13
performed,
the Collateral Agent shall be incompetent or unqualified to perform such act or
acts, in which event such act or acts shall be performed by such co-collateral
agent or co-collateral
agents or separate collateral agent or separate collateral agents;
(iii) Any
request in writing by the Collateral Agent to any co-collateral agent
or
separate collateral agent to take or to refrain from taking any action hereunder
shall be sufficient warrant for the taking, or the refraining from taking, of
such action by such co-collateral
agent or separate collateral agent;
(iv) Any
co-collateral agent or separate collateral agent to the extent permitted by law
may delegate to the Collateral Agent the exercise of any right, power, duty or
obligation, discretionary or otherwise;
(v) The
Collateral Agent at any time, by an instrument in writing, may accept the
resignation of, or remove, any co-collateral agent or separate collateral agent
appointed under this Section
30. As
successor to any co-collateral agent or separate collateral agent so resigned or
removed may be appointed in the manner provided in this Section
30.
(vi) No
collateral agent hereunder shall be personally liable by reason of any act or
omission of any other collateral agent hereunder;
(vii) Any
demand, request, direction, appointment, removal, notice, consent, waiver or
other action in writing delivered to the Collateral Agent shall be deemed to
have been delivered to each such co-collateral agent or separate collateral
agent; and
(viii)
Any Collateral received by any such co-collateral agent or separate collateral
agent hereunder shall forthwith, so far as may be permitted by law, be turned
over to
the Collateral Agent to be held pursuant to the terms hereof.
(d) Upon the
acceptance in writing of such appointment by any such co-collateral agent or
separate collateral agent, it or he shall be vested with the estate, right,
title and interest in the
Pledged Collateral, or any portion thereof, and with such rights, powers,
duties, trusts or obligations, jointly or separately with the Collateral Agent,
all as shall be specified in the instrument of appointment, subject to all the
terms hereof.
(e) In case
any co-collateral Agent or separate collateral agent shall become incapable
of acting, resign or be removed, the right, title and interest in the Pledged
Collateral and all
rights, powers, duties and obligations of said co-collateral agent or separate
collateral agent shall, so far as permitted by law, vest in and be exercised by
the Collateral Agent unless and until a successor co-collateral agent or
separate collateral agent shall be appointed pursuant to this Section
30.
31.
Notices. Notices
given pursuant to any provision of this Agreement may be sent by facsimile and
shall be addressed as follows: (i) if to either Pledgor, to: Xx. Xx Xxx Xxxx/Xx.
Xx Xxx Xxxx,
Room 305, Xx Xxxx Building, No.166 Fu Shi Road, Shi Xxxx Xxxx Xxxxxxxx, Xxxxxxx
000000, Xxxxx, Fax:
(00-00) 0000 0000, with a copy to Xxxxx Day, 3201 China World Tower 1, Xx.0
Xxxxxxxxxxxxx Xxxxxx, Xxxxxxx, Xxxxx 000000, Fax: (00-00) 0000 0000, Attention:
Xxxxxx Xxxx, Esq., and (ii) if to the Collateral Agent, to: The Bank of New
York, 000 Xxxxxxx Xxxxxx, 0X, Xxx Xxxx, Xxx Xxxx 00000 , Fax: (000)
000-0000/5803, Attention: Global Trust Services.
14
32. Indemnity and
Expenses. Each Pledgor agrees, upon demand, to indemnify the Collateral
Agent against any and all losses, claims, damages, penalties, fines, liabilities
or expenses, including incidental and out-of-pocket expenses and reasonable
attorneys fees incurred by it arising out of or in connection with the
acceptance or administration of its duties under this Agreement and to pay to
the Collateral Agent the amount of any and all reasonable expenses, including
the reasonable fees and expenses of its counsel and of any experts and agents,
which the Collateral Agent may incur in connection with (i) the administration
of this Agreement, (ii) the custody, preservation, use or operation of, or the
sale of, collection from, or other realization upon, any of the Pledged
Collateral, (iii) the exercise or enforcement of any of the rights of the
Collateral Agent hereunder or (iv) the failure by such Pledgor to perform
or observe any of the provisions hereof.
Each
Pledgor also agrees to indemnify the Indemnified Party (as defined in the Notes
Purchase Agreement) against any and all losses, claims, damages, liabilities and
reasonable expenses to the same extent as the Company agrees to indemnify under
Section 9 of the Notes Purchase Agreement.
33. Amendments, Waivers and
Consents. None of
the terms or provisions of this Agreement may be waived, altered, modified or
amended, and no consent to any departure by any Pledgor herefrom shall be
effective, except by or pursuant to an instrument in writing which (i) is duly
executed by each Pledgor and the Collateral Agent and (ii) complies with the
requirements of the Indenture. Any such waiver shall be valid only to the extent
set forth therein. A waiver by the Collateral Agent of any right or remedy under
this Agreement on any one occasion shall not be construed as a waiver of any
right or remedy which the Collateral Agent would otherwise have on any future
occasion. No failure to exercise or delay in exercising any right, power or
privilege under this Agreement on the part of the Collateral Agent shall operate
as a waiver thereof, and no single or partial exercise of any right, power or
privilege under this Agreement shall preclude any other or further exercise
thereof or the exercise of any other right, power or privilege.
34. Section
Headings. The
section headings herein are for convenience of reference only, and shall not
affect in any way the interpretation of any of the provisions
hereof.
35. Execution in
Counterparts. This
Agreement may be executed in any number of counterparts, each of which shall be
an original, but all of which shall together constitute one and the same
agreement.
36. Merger. This
Agreement and the other Transaction Documents embody the entire agreement and
understanding, between the Pledgors and the Collateral Agent or the Holder and
supersedes
all prior agreements and understandings, written and oral, relating to the
subject matter hereof.
[SIGNATURE
PAGE(S) TO FOLLOW.]
15
IN
WITNESS WHEREOF, each Pledgor and the Collateral Agent have executed this
Agreement as of the date set forth above.
|
XX.
XX XXXX XXXX
|
|
|
By:
/s/ Xx Xxxx
Jing
|
|
|
Name:
Xx. XX XXXX XXXX
|
|
|
XX.
XX XUE MING
|
|
|
By:
/s/ Xx Xxx
Ming
|
|
|
Name:
Xx. XX XUE MING
|
Acknowledged
and agreed to as of the date first written above.
THE BANK
OF NEW YORK
as
Collateral Agent
By:
________________________________
Name:
Title:
Authorized Signatory
Acknowledged
and agreed to as of the date first written above for the purposes set forth in
Sections 4, 7 and 10.
CITADEL
EQUITY FUND LTD.
By:
Citadel Limited Partnership, Portfolio Manager
By:
Citadel Investment Group, L.L.C., its General Partner
By:
________________________________
Name:
Title:
Authorized Signatory
IN
WITNESS WHEREOF, each Pledgor and the Collateral Agent have executed this
Agreement
as of the date set forth above.
|
XX. XX XXXX XXXX
By: ________________________________
Name: Xx. XX XIAO JING
XX. XX XXX XXXX
By: ________________________________
Name: Xx. XX XUE MING
|
Acknowledged
and agreed to as of the date
first written above.
THE BANK
OF NEW YORK
as
Collateral Agent
By: /s/ Xxxx
Xxx
Name:
Xxxx Xxx
Title:
Authorized Signatory
Acknowledged
and agreed to as of the date
first written above for the purposes
set forth in Sections 4, 7 and 10.
CITADEL
EQUITY FUND LTD.
By:
Citadel Limited Partnership, Portfolio Manager
By:
Citadel Investment Group, L.L.C., its General Partner
By:
________________________________
Name:
Title:
Authorized Signatory
IN
WITNESS WHEREOF, each Pledgor and the Collateral Agent have executed this
Agreement
as of the date set forth above.
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XX. XX XXXX XXXX
By: ________________________________
Name: Xx. XX XIAO JING
XX. XX XXX XXXX
By: ________________________________
Name: Xx. XX XUE MING
|
Acknowledged
and agreed to as of the date
first written above.
THE BANK
OF NEW YORK
as
Collateral Agent
By:
________________________________
Name:
Title:
Authorized Signatory
Acknowledged
and agreed to as of the date
first written above for the purposes
set forth in Sections 4, 7 and 10.
CITADEL
EQUITY FUND LTD.
By:
________________________________
Citadel
Limited Partnership, its Portfolio Manager
By:
Citadel Investment Group, L.L.C., its General Partner
By:
/s/
Xxxxx
Xxxxxxxx
Name:
Xxxxx Xxxxxxxx
Title:
Authorized Signatory
EXHIBIT A
PLEDGED
STOCK
|
Name of
Pledgor
|
Name of
Issuer
|
Percentage
of
Stock
|
Number and
Description
of
Shares
|
|
Xx.
Xx Xxxx Xxxx
|
China
Xxxx Xxxx Mining &
Resources,
Inc.
|
70%
|
14,917,000
common stock
|
|
Xx.
Xx Xue Ming
|
China
Xxxx Xxxx Mining &
Resources,
Inc.
|
8.8%
|
1,870,000
common stock
|
EXHIBIT B
STOCK POWER
FOR VALUE RECEIVED,
the
undersigned hereby sells, assigns and transfers unto
,
shares of
the Common Stock, par value $0.001 per share, of China
Xxxx Xxxx Mining &
Resources, Inc., a Nevada corporation (the "Corporation"), standing
in the name of the undersigned on the books of the Corporation represented by
Certificate
No. _____, and
does hereby irrevocably constitute and appoint _______________ as
attorney-in-fact
to transfer the shares on the books of the Corporation with full power of
substitution in the premises.
Dated:
___________________
[Xx. XX XXXX XXXX] [Xx. XX XXX
XXXX]
By:
___________________________
Name:
[Xx. XX XIAO JING] [Xx. XX XXX XXXX]
ACKNOWLEDGEMENT
The
undersigned hereby acknowledges receipt of a copy of the foregoing Share Pledge
Agreement, agrees promptly to note on its books the security interests
granted under such Share Pledge Agreement, and waives any rights or requirement
at any time hereafter to receive a copy of such Share Pledge Agreement in
connection with the registration of any Pledged Collateral in the name of the
Collateral Agent or its nominee or the exercise of voting rights by the
Collateral Agent.
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CHINA XXXX XXXX MINING & RESOURCES,
INC.
By:
/s/ Xx Xxxx
Jing
Name:
Xx Xxxx Jing
Title:
President
|
