EXHIBIT 4.8
TRANSLATED FOR REFERENCE ONLY.
EQUITY PLEDGE AGREEMENT
This Equity Pledege Agreement (this "Agreement") is entered into by and among
the following parties on June 8, 2007 in Beijing:
Party A: Aero-Biotech Science & Technology Co., Ltd.
Domicile: X000, 0xx Xxxxx, Xxxxxx Xxxxxxxxx Xxxxxxxx Xxxx, Xx. 0 Yuanda Road,
Haidian District, Beijing (the "Pledgee");
Party B: Xx Xxxx, a Chinese citizen, identity card number: 000000000000000000;
Party C: Xxxx Xxxxxxx, a Chinese citizen, identity card number: 130224670510033;
Party D: Xue Zhixin, a Chinese citizen, identity card number: 140102621023081;
Party E: Zhang Mingshe, a Chinese citizen, identity card number:
000000000000000;
(Parties B, C, D and E above individually or collectively referred to as the
"Pledgor(s)")
Party F: Primalights III Agriculture Development Co., Ltd.
Domicile: Middle Area of Highway 73, Zhuang Xx Xxxxx Village, Xxxxx Xxxx Rural
Area, Xiaodian District, Taiyuan City (hereinafter referred to as "P3A").
WHEREAS:
1. P3A, i.e. Party F, is a limited liability company registered, established
and validly existing in Taiyuan City, Shanxi Province, PRC under the laws
of the People's Republic of China (hereinafter referred to as "China",
excluding Hong Kong Special Administrative Region, Macao Special
Administrative Regions and Taiwan in this Agreement);
2. The Pledgors are the legal and valid shareholders of P3A and hold all the
equity interest in P3A legally whereby Parties B, C, D and E own 40%, 30%,
25% and 5% of the equity interest, respectively;
3. The Pledgee is a wholly foreign owned enterprise legally established and
validly existing under the laws of China. It provides technical support,
technology consulting and related services to P3A. It has become a major
cooperative partner of P3A;
4. On June 8, 2007, the Pledgee and P3A have entered into the "Exclusive
Technology Development, Technology Support and Technology Service
Agreement", "Proprietary Technology License Agreement" and "Exclusive
Consultancy Service Agreement". The Pledgors agree to pledge their equity
interest in P3A as a security for the performance of all P3A's obligations
under the aforementioned agreements;
5. On June 8, 2007, the Pledgee and the Pledgors and P3A have signed the
"Exclusive Call Option Agreement". The Pledgors agree to pledge their
equity interest in P3A as a security for the performance of all the
obligations of P3A and themselves under such "Exclusive Call Option
Agreement";
NOW, THEREFORE, the Pledgee and the Pledgors, through friendly consultation,
reach the agreement as follows.
ARTICLE 1 DEFINITIONS
Except as otherwise stipulated herein, the following terms shall mean:
1.1 "Pledge" refers to the full content of Article 2 hereunder.
1.2 "Equity " means the entire equity interest in P3A which legally held by the
Pledgors.
1.3 "Main Contract" includes "Proprietary Technology License Agreement",
"Exclusive Technology Development, Technology Support and Technology
Service Agreement", "Exclusive Consultancy Service Agreement", "Exclusive
Call Option Agreement" and any amendment and supplement thereof.
1.4 "Secured Party" refers to other contract party under each Main Contract
except the Pledgee.
1.5 "Secured Debt" means all contractual obligations under each Main Contract,
including (but not limited to) interest, default fine, compensation,
expenses incurred by the Pledgee in realizing the debt.
1.6 "Event of Default" refers to any event specified in Article 7.1 hereof.
1.7 "Notice of Default" means the notice of default to be issued by the Pledgee
pursuant to this Agreement.
ARTICLE 2 PLEDGE
The Pledgors hereby pledges all equity interest it owns in P3A to the Pledgee as
a security for the performance of the Secured Debt under Main Contract by the
Secured Party. Accordingly, the Pledgee enjoys the Pledge of all the Equity of
the Pledgor in P3A. "Pledge" refers to the rights owned by the Pledgee, who is
entitled to a priority in receiving payment by the evaluation or proceeds from
the auction or sale of the Equity pledged by the Pledgor to the Pledgee.
ARTICLE 3 REGISTRATION OF PLEDGE
3.1 Within one (1) week after the signing of this Agreement, P3A shall, and the
Pledgor shall cause P3A, to record the Pledge specified in Article 2 above,
on the Register of Shareholders of P3A, and deliver the copy of the
Register of
Shareholders chopped with the official seal of P3A and the original of
equity contribution certificate of P3A to the Pledgee for custody.
3.2 After the signing of this Agreement, the Pledgors shall, in accordance with
the Pledgee's written request which may be made by the Pledgee from time to
time, together with the Pledgee, notarize this Agreement as well as the
Pledgee's Pledage Right recorded in the Register of Shareholders and equity
contribution certificate as set forth in Article 3.1 hereof at a local
notary public office where P3A is domiciled.
3.3 The parties agree to take it best effort to cause the pledge under this
Agreement to be registered at the industrial and commercial administrative
departments where P3A is registered. The parties confirm that, unless the
registration in the industrial and commercial administrative of the pledge
is mandatory in law, the effectiveness and validity of the Pledge stipulate
in Article 2 above shall not be affected after all parties signed this
Agreement, even if the Pledge under this Agreement cannot be registered at
the industry and commerce administration departments where P3A is
registered.
ARTICLE 4 RIGHTS OF THE PLEDGEE
4.1 When the Secured Party does not perform any obligation under the Main
Contract, the Pledgee is entitled to be first compensated from money
converted from or the proceeds from the auction or sale of the pledged
Equity of P3A.
4.2 The Pledgee is entitled to receive the dividends and other property
distribution arising from the pledged Equity.
ARTICLE 5 REPRESENTATION AND WARRANTY OF PLEDGORS
5.1 Pledgors are the legitimate owners of the Equity;
5.2 Pledgors fully understands the contents of the Main Contract. The signing
and the performance of this Agreement are voluntary, and it is expressing
true meaning. The Pledgors are legally authorized to sign;
5.3 All documents, information, statements and other evidence which Pledgors
provided to the Pledgee are accurate and true, complete and valid;
5.4 Pledgors admit that the Pledgee has the right to dispose and transfer the
Pledge, according to the method stipulated in this Agreement and within the
scope of the legal restrictions in China;
5.5 Except for the interest of the Pledgee, Pledgors have not placed other
pledge, any other kinds of rights or any third party right on the Equity;
5.6 Every Pledgor has already obtained the consent of the other shareholders of
P3A to pledge the Equity. And all the shareholders have unanimously consent
that,
when Pledgee exercises the right of the Pledge, the shareholders will not
interfere by any means, and that they will not exercise the pre-emptive
right.
ARTICLE 6 UNDERTAKING OF PLEDGORS
In addition to the obligations specified in this Agreement, the Pledgor
undertakes as follows:
6.1 During the duration of this Agreement, the Pledgors' promise to the Pledgee
for its benefit that the Pledgors shall:
6.1.1 Except for transferring the Equity to the Pledgee, without the prior
written consent of Pledgee, Pledgors cannot transfer the Equity, cannot
create or permit the existence of any pledge which may affect the rights
and interests of Pledgee, or cause the shareholders meeting of P3A to pass
any resolution to sell / transfer / pledge or by means of other way to
dispose any Equity of the company, or to allow the creation of any other
security interests; unless prior written consent of the Pledgee, Pledgors
shall vote / cause his nominated P3A Directors to vote at P3A's board
meeting and/or by other means to object P3A to sell / transfer / pledge or
by other way of disposing of any major assets, including (but not limited
to) any intellectual property rights.
6.1.2 If the pledged Equity under this Agreement is subjected to any compulsory
measures implemented by a court or other departments for any reason, the
Pledgors shall use all efforts, including (but not limited to) provide
other security or adopt other measure to the court, in order to dismiss the
compulsory measures taken by the Court or other departments over the
pledged Equity.
6.1.3 The Pledgors shall comply with and implement all relevant laws and
regulations regarding the rights for pledge. Within five (5) days upon
receipt of any competent authority's notice, order or suggestion about the
Pledge, the Pledgors shall deliver such notice, order or suggestion to the
Pledgee, and comply with such notice, order or suggestion, or raised
objections and representations in accordance with the Pledgee's reasonable
request or the consent on the foregoing matters.
6.1.4 The Pledgors shall timely notify the Pledgee of any event or received
notice which may affect the Pledgor's Equity or any part of its right, and
any event or any received notice which may change any of the Pledgor's
warranty and obligation under this Agreement.
6.2 The Pledgors agree that, when the Pledgee exercises its rights on the
Pledge in accordance with the provisions under this Agreement and within
the scope permitted by the Chinese laws, the Pledgee's right shall not be
suspended or inhibited by any legal procedure launched by the Pledgors or
any successors of the Pledgors or any person authorized by the Pledgors or
any other person.
6.3 The Pledgors promise to the Pledgee that, in order to protect or perfect
the security for the Secured Debt, the Pledgors shall execute in good faith
and cause
other parties who have interests in the Pledge to sign all the title
certificates, contracts, and / or perform and cause other parties who have
interest to take action as required by the Pledgee; and provide convenient
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 with the Pledgee or its designated person (natural person/legal
person) and provide all the notice, order or decision related to the Pledge
to the Pledgee by who considers to be necessary within a reasonable time.
6.5 The Pledgors promise to the Pledgee to comply with and perform all the
guarantees, undertakings, contracts, representations and conditions for the
benefits of the Pledgee. If the Pledgors do not perform or do not fully
perform its guarantees, undertakings, contracts, representations and
conditions, the Pledgors shall compensate the Pledgee for all the losses
suffered by the Pledgee.
ARTICLE 7 EVENT OF DEFAULT
7.1 The following events are regarded as events of default:
7.1.1 The Secured Party fails to perform as due, fully perform any one of the
Secured Debt Failure under the Main Contract;
7.1.2 The statements or guarantees made by the Pledgors, specified in Article 5,
contain any material misleading or false information, and/or the Pledgor's
breach of the any waranties set forth in Article 5;
7.1.3 The Pledgor's breach of the undertakings specified in Article 6;
7.1.4 The Pledgor's breach of any other provisions herein;
7.1.5 The Pledgor waives the pledged Equity or transfer the pledged Equity
without Pledgee's prior written consent;
7.1.6 Any other external borrowing, warrant, compensation, undertakings or other
liabilities of the Pledgors: (1) is required for an early repayment or
performance prior to the scheduled date due to any breach; or (2) is due
but can not be repaid or perform as scheduled, which causes the Pledgee to
believe that the Pledgors' capacity to perform the obligations under this
Agreement is affected;
7.1.7 P3A is incapable to repay the general debts unsecured or other debts;
7.1.8 This Agreement becomes illegal or the Pledgor fails to continue perform
its obligations under this Agreement due to any reason with the exception
of force majeure;
7.1.9 An adverse change occurs to the property owned by the Pledgor, which
causes the Pledgee to believe that the Pledgor's capability to perform the
obligations under this Agreement is affected;
7.1.10 A material adverse change occurs to the assets, operation result or
finance of P3A;
7.1.11 The successor or agent of P3A can only perform part of the Main Contract
or refuse to perform the Main Contract;
7.1.12 The Pledgor breaches other provisions of this Agreement through any act
or omission of act.
7.2 If the Pledgor knows or is aware of any events set forth in Article 7.1
herein or any events which may result in the foregoing events has happened
or is going on, the Pledgor shall give written notice to the Pledgee
immediately.
7.3 Unless the events of default set forth in Article 7.1 herein have been
resolved to the Pledgee's satisfaction, the Pledgee may give written notice
of default to the Pledgor at any time after the occurrence of such events
of default and require the Pledgor to repay the debts or other payables
under the Main Contract immediately or exercise its Pledge as specified in
Article 8 herein.
ARTICLE 8 EXERCISE OF THE PLEDGE
8.1 Subject to the stipulation set forth in Article 6.1.1 herein, before the
Secured Party has fully performed its obligation under the Main Contract,
the Pledgor shall not transfer the pledged Equity without the Pledgee's
written consent.
8.2 The Pledgee shall give notice of default to the Pledgor when the Pledgee
exercises the right of Pledge.
8.3 Subject to Article 7.3 herein, the Pledgee may exercise its right of
disposal of the Pledge at the time or at any time after the notice of
default is issued in accordance of Article 7.3.
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 pledged herein in accordance with legal procedure until the
outstanding debt and all other payables of the Pledgor under the Main
Contract are repaid.
8.5 The Pledgor shall not hinder any obstacle when the Pledgee execute his
disposal right hereunder. The Pledgor shall provide necessary assistance so
that the Pledgee could realize his Pledge.
ARTICLE 9 ASSIGNMENT OF CONTRACT
9.1 The Pledgor or P3A shall not transfer any right and obligation under this
Agreement, unless agreed by the Pledgee in advance.
9.2 This Agreement shall be binding upon the Pledgor and its successors, and
this Agreement shall also be binding upon the Pledgee and each of its
successor and permitted assignee.
9.3 The Pledgee may transfer all or any rights and obligations hereunder to
designated assigners (natural person/ legal person) with the permit by
applicable law, in which case the assignee shall enjoy and undertake the
same rights and obligations herein of the Pledgee as if the rights and
obligations shall be enjoyed and born by any party of this Agreement. When
the Pledgee transfers the rights and obligations under the Main Contract,
and such transfer shall only need to serve a written notice to the Pledgor,
and the Pledgor shall sign the relevant contracts and/or documents as
requested by the Pledgee.
9.4 A new pledge contract shall be signed between the new parties to the pledge
after the change of Pledgee caused by the pledge transfer.
ARTICLE 10 EFFECTIVENESS
This Agreement is signed on the date set forth in the first page and shall
become effective on the day on which the Pledge is recorded on the Register of
Shareholder of P3A.
ARTICLE 11 TERMINATION
This Agreement terminates when the Secured Debt under the Main Contract has been
repaid and the Pledgor will not undertake any obligations under the Main
Contract. The Pledgee shall provide necessary assistance in dealing with the
formalities for releasing the Pledge on the Equity within the earliest
reasonable and practicable time.
ARTICLE 12 FORMALITIES FEES AND OTHER CHARGES
12.1 All the fees and actual expenses incurred due to the conclusion and
performance of this Agreement, including but not limited to, legal fee,
cost of production, stamp duty, and any other taxes and charges, etc shall
be payable and borne by the Pledgor. If the Pledgee pays the relevant taxes
in accordance with laws, the Pledgor shall fully indemnify the Pledgee such
taxes paid by the Pledgee.
12.2 The Pledgee may seek recourse against the Pledgor by any means or any ways
if the Pledgor fails to pay any payable taxes, expenses or charges for
other reasons in accordance with this Agreement. The Pledgor shall be
responsible for all the fees incurred, including but not limited to, all
kinds of taxes, formalities fees, management fees, litigation fees,
attorney's fees and various insurance premiums in connection with the
disposition of the Pledge, etc., by the Pledgor.
ARTICLE 13 FORCE MAJEURE
13.1 "Force majeure" means any event beyond the reasonable control of the party
and cannot be prevented with reasonable care of the affected party, such
event of Force Majeure includes, but is not limited to, acts of government,
acts of nature, fire, explosion, typhoon, floods, earthquake, tidal wave,
lightning or war. Nevertheless, lack of credit, capital or finance shall
not be considered as an event beyond a party's reasonable control. The
affected party shall notify the other parties of such event resulting in
exemption without any delay.
13.2 Shall either party hereto be delayed or prevented from performing its
obligations hereunder due to Force Majeure events as defined in Article
13.1, the affected party may be exempted from performing its obligation
hereunder to the extent delayed or prevented by Force Majeure events. The
affected party shall take reasonable endeavors to minimize or remove the
effects of the events of Force Majeure and attempt to resume performance of
the obligations delayed or prevented by the events of Force Majeure. The
parties agree to use reasonable efforts to resume the performance of the
obligation whenever and to the extent the causes are removed.
ARTICLE 14 CONFIDENTIALITY
Undersigned hereby acknowledge and confirm that any oral or written materials
exchanged hereto are confidential information. The parties shall keep all
confidential information in confidence and shall not disclose any item of
confidential information to any third party, without other party's prior written
consent, however, either of the following cases shall be excepted: (a) the
information is already or to be make known to the public (the disclosure is not
made by the recipient without authorization; (b) the information is disclosed as
required by applicable laws or rules and regulations of stock exchange; or (c)
the information disclosed by any party to its legal consultant or financial
advisors in connection with or in the execution of this Agreement. It is also
necessary for the legal consultant and financial advisors to undertake
confidentiality obligations and liabilities. The breach of confidentiality of
any party's employees, agents or advisers shall be deemed as the act of the
party; therefore, it shall be liable for the breaching responsibilities in
accordance with this Agreement.
ARTICLE 15 DISPUTE RESOLUTION
15.1 This Agreement shall be construed and governed by the laws and regulations
of the People's Republic of China.
15.2 All the disputes in connection with or in the execution of this Agreement
shall be settled by the parties through friendly consultations. In case no
settlement to the disputes can be reached by the parties through such
consultations, the disputes shall be submitted to China International
Economic and Trade Arbitration Commission for arbitration. The arbitration
shall take place in Beijing, China, and be conducted in Chinese according
to the provisional procedures and rules of
the China International Economic and Trade Arbitration Commission. The
arbitration award shall be final and binding on the parties.
ARTICLE 16 NOTICE
Notices required to be given by the parties for the purpose of performing the
rights and obligations pursuant to this Agreement shall be in writing, including
facsimile transmission. The dates of receipt of such notices shall be determined
as follows:
(a) Notices sent by personal delivery shall be deemed effectively delivered on
the date of personal delivery;
(b) Notices sent by facsimile transmission shall be deemed effectively
delivered when dispatched on its transmittal or on the first business day
following the date of transmission when it is not a business day or
received after the business hours.
Address for notices is the address set forth in the first page or other address
may be designated through notification to the other parties.
Party A: Aero-Biotech Science & Technology Co., Ltd.
Address: X000, 0xx Xxxxx, Xxxxxx Xxxxxxxxx Xxxxxxxx Xxxx, Xx. 0 Yuanda Road,
Haidian District
Fax: 000-0000 0000
Tel: 000-0000 0000
Party B: Xx Xxxx
Address: Units 1& 8, 17th Floor, Duty-free Business Building, Xx.0 Xx Xxx
Xxxxx Xxxx, Xxxxxx Xxxxxxxx, Xxxxxxxx Xxxx
Fax 0000-0000 0000
Tel: 0000-0000 0000
Party C: Xxxx Xxxxxxx
Address: Xxxx 000, Xxxx Xxx Xxxxxxxx, Xxxxx Xxxxxx, Xxxxx Xxxx Cun, Haidian
District, Beijing
Fax: 000-00000000
Tel: 000-00000000
Party D: Xue Zhixin
Address: 25th Floor, Jin Gang Hotel, Xx.00 Xxxx Xxxx Xxxxx Xxxx, Xxxxxxx Xxxx,
Xxxxxx Xxxxxxxx
Fax: 0000-0000000
Tel: 0000-0000000
Party E: Xxxxx Xxxxxxx
Xxxxxxx: 00xx Xxxxx, Xxx Xxxx Xxxxx, Xx.00 Xxxx Xxxx North Road, Taiyuan City,
Shanxi Province
Fax: 0000-000 0000
Tel: 0000-000 0000
Party F: Primalights III Agriculture Development Co., Ltd.
Address: Middle of Highway 73, Zhuang Xx Xxxxx Village, Xxxxx Xxxx Rural
Area, Xiaodian District, Taiyuan City
Fax 0000-000 0000
Tel: 0000-000 0000
ARTICLE 17 INTEGRATION OF CONTRACT
Notwithstanding Article 10, the parties agree that this Agreement constitute the
entire agreement and understanding of the parties, superseding any and all prior
written and oral representations, understandings, agreements and arrangements
related thereto.
ARTICLE 18 SEVERABILITY
If and to the extent any provision of this Agreement is held invalid or
unenforceable under applicable law, such provision thereof shall be ineffective
as to the jurisdiction in which it is invalid or unenforceable. The invalidity
or unenforceability of such provision in that jurisdiction shall not in any way
affect the validity or enforceability of any other provision in any
jurisdiction.
ARTICLE 19 AMENDMENT AND SUPPLEMENT
19.1 Parties may amend and supplement this Agreement with a written agreement.
The amendment and supplement duly executed and signed by the parties shall
be part of this Agreement and shall have the same legal effect as this
Agreement.
19.2 This Agreement together with any amendments, supplements or modifications
to this Agreement shall be in written form and become effective on the date
when stamped and signed by the parties.
ARTICLE 20 COUNTERPARTS
This Agreement is executed by Chinese in nine copies, each of which has the same
legal effect. The Pledgee, each Pledgor and P3A shall hold one copy and the
remaining three copies shall be provided to relevant government departments.
IN WITNESS WHEREOF, the Parties executed this Agreement on the date first above
written.
(No text below)
Party A: Aero-Biotech Science & Technology Co., Ltd.
Legal representative/authorized representative: /s/ Xxxx Xxxxxxx
--------------------------------
Seals: [Seal: Aero-Biotech Science & Technology Co., Ltd.]
Party B: Xx Xxxx
Signature: /s/ Xx Xxxx
---------------------------
Party C: Xxxx Xxxxxxx
Signature: /s/ Xxxx Xxxxxxx
---------------------------
Party D: Xue Zhixin
Signature: /s/ Xue Zhixin
---------------------------
Party E: Zhang Mingshe
Signature: /s/ Zhang Mingshe
---------------------------
Party F: Primalights III Agriculture Development Co., Ltd.
Legal representative/authorized representative: /s/
--------------------------------
Seals: [Seal: Primalights III Agriculture Development Co., Ltd.]
