Equity Interest Pledge Agreement
Exhibit 10.12
Equity Interest Pledge Agreement
This Equity Interest Pledge Agreement (this “Agreement”) has been executed by and among the following parties on November 2, 2018 in Beijing, the People’s Republic of China (“China” or “PRC”).
| Party A: | Beijing Absolute Health Ltd. (hereinafter the “Pledgee”), a limited liability company established and existing under the laws of the PRC, with its registered address at Room 1318, 13th Floor, Building 2, Xx. 00, Xxxxx Xxxxx Xxxx Xxxx Xxxx, Xxxxxxxx Xxxxxxxx, Xxxxxxx. |
| Party B: | SHEN Peng (沈鹏), a PRC Citizen, ID No. [***] (Herein- after referred to “the Pledgor”); and |
| Party C: | Beijing Shuidi Hubao Technology Co., Ltd., a limited liability company established and existing under the laws of the PRC, with its registered address at Xxxxxxxx 000, Xx. 00, Xxxxxxx Xxxx (Jinsong Incubator No. 3523). |
In this Agreement, each of the Pledgee, the Pledgor and Party C shall be referred to individually as a “Party”, collectively as the “Parties”.
Whereas:
| 1. | The Pledgor is the registered shareholders of Party C and lawfully hold all the equity of Party C. Party C is a limited liability company registered in Beijing, China. Party C acknowledges the respective rights and obligations of the Pledgor and Pledgee under this Agreement, and intends to provide any necessary assistance in registering the Pledge; |
| 2. | The Pledgee is a wholly foreign owned enterprise registered in China. Pledgee and Party C which is wholly owned by the Pledgor have executed an Exclusive Business Cooperation Agreement (as defined below) in Beijing; Pledgee, the Pledgor and Party C have executed an Exclusive Option Agreement (as defined below); each the Pledgor has executed a Power of Attorney (as defined below) in favor of Pledgee. |
| 3. | To ensure that Party C and the Pledgor fully perform their obligations under the Exclusive Business Cooperation Agreement, the Exclusive Option Agreement and the Power of Attorney, each the Pledgor hereby pledges to the Pledgee all of the equity interest that such the Pledgor holds in Party C as security for fulfillment by Party C and the Pledgor of their obligations under the Exclusive Business Cooperation Agreement, the Exclusive Option Agreement and the Power of Attorney. |
To perform the provisions of the Transaction Documents (as defined below), the Parties have mutually agreed to execute this Agreement upon the following terms.
1
| Section 1 | Definitions |
Unless otherwise provided herein, the terms below shall have the following meanings:
| 1.1 | Pledge: shall refer to the security interest granted by the Pledgor to Pledgee pursuant to Section 2 of this Agreement, i.e., the right of Pledgee to be compensated on a preferential basis with the conversion, auction or sales price of the Equity Interest. |
| 1.2 | Equity Interest: shall refer to all equity interests in Party C lawfully owned by the Pledgor as of the date of this Agreement, and all of the equity interests hereafter acquired by the Pledgor in Party C. |
| 1.3 | Term of Pledge: shall refer to the term set forth in Section 3 of this Agreement. |
| 1.4 | Transaction Documents: the Exclusive Business Cooperation Agreement executed on November 2, 2018 (“Exclusive Business Cooperation Agreement”) by and between Party C and Pledgee；the Exclusive Option Agreement executed on November 2, 2018 (“Exclusive Option Agreement”) by and among Party C, the Pledgor and Pledgee; the Loan Agreement executed by the Pledgor on November 2, 2018 (“Loan Agreement”) and the Power of Attorney executed by the Pledgor on November 2, 2018 (“Power of Attorney”), and any modification, amendment and/or restatement to the aforementioned documents. |
| 1.5 | Contract Obligations: shall refer to all the obligations of the Pledgor under the Exclusive Option Agreement, the Power of Attorney and this Agreement; all the obligations of Party C under the Exclusive Business Cooperation Agreement, the Exclusive Option Agreement and this Agreement. |
| 1.6 | Secured Indebtedness: shall refer to all the direct, indirect and derivative losses and losses of anticipated profits, suffered by Pledgee, incurred as a result of any Event of Default. The amount of such loss shall be calculated in accordance with the reasonable business plan and profit forecast of Pledgee, the consulting and service fees payable to Pledgee under the Exclusive Business Cooperation Agreement, all expenses occurred in connection with enforcement by Pledgee of the Pledgor’ and/or Party C’s Contract Obligations and etc.. |
| 1.7 | Event of Default: shall refer to any of the circumstances set forth in Section 7 of this Agreement. |
| 1.8 | Notice of Default: shall refer to the notice issued by Pledgee in accordance with this Agreement declaring an Event of Default. |
2
| Section 2 | The Pledge |
| 2.1 | The Pledgor agree to pledge all the Equity Interest as security for performance of the Contract Obligations and payment of the Secured Indebtedness under this Agreement. Party C hereby assents that the Pledgor pledge the Equity Interest to the Pledgee pursuant to this Agreement. |
| 2.2 | During the term of the Pledge, Pledgee is entitled to receive dividends distributed on the Equity Interest. The Pledgor may receive dividends distributed on the Equity Interest only with prior written consent of Pledgee. Dividends received by the Pledgor on Equity Interest after deduction of individual income tax paid by the Pledgor shall be, as required by Pledgee, (1) deposited into an account designated and supervised by Pledgee and used to secure the Contract Obligations and pay the Secured Indebtedness prior and in preference to any other payment; or (2) unconditionally donated to Pledgee or any other person designated by Pledgee to the extent permitted under applicable PRC laws. |
| 2.3 | The Pledgor may subscribe for capital increase in Party C only with prior written consent of Pledgee. Any equity interest obtained by the Pledgor as a result of such the Pledgor’s subscription of the increased registered capital of Party C shall also be deemed as Equity Interest. |
| 2.4 | In the event that Party C is required by PRC law to be liquidated or dissolved, any interest distributed to the Pledgor upon Party C’s dissolution or liquidation shall, upon the request of the Pledgee, be (1) deposited into an account designate and supervised by Pledgee and used to secure the Contract Obligations and pay the Secured Indebtedness prior and in preference to any other payment; or (2) unconditionally donated to Pledgee or any other person designated by Pledgee under the premise of compliance with applicable PRC laws. |
| Section 3 | Term of Pledge |
| 3.1 | The Pledge shall become effective on such date when the pledge of the Equity Interest contemplated herein has been registered with relevant administration for market regulation (the “AMR”), and thereafter shall be continuously valid until all Contract Obligations have been fulfilled and all Secured Indebtedness have been repaid up. The Pledgor and Party C shall (1) register the Pledge hereof in the shareholders’ register of Party C within 3 business days following the execution of this Agreement, and (2) submit the application for registration of the Pledge hereof at the AMR within 30 business days following the execution of this Agreement. The Parties jointly confirm that for the purpose of registering the Pledge with the AMR, the Parties and other shareholders of Party C shall, submit a copy of this Agreement or an equity pledge agreement executed in the form required by the local AMR where Party C resides which shall truly reflect the information of the Pledge hereunder (the “AMR Equity Pledge Agreement”) to the AMR. Where there is any inconsistency between AMR Equity Pledge Agreement and this Agreement and Transaction Documents, this Agreement and Transaction Documents shall prevail. The Pledgor and Party C shall submit all necessary documents and complete all necessary procedures, pursuant to the PRC laws and regulations and the requirements of relevant AMR, to ensure that the Pledge shall be registered as soon as possible after filing. |
3
| 3.2 | During the Term of the Pledge, in the event the Pledgor and/or Party C fail to perform the Contract Obligations or pay Secured Indebtedness, the Pledgee shall have the right, but not the obligation, to exercise the Pledge in accordance with the provisions of this Agreement. |
| Section 4 | Custody of Records for Equity Interest subject to Pledge |
| 4.1 | During the Term of the Pledge set forth in this Agreement, the Pledgor shall deliver to the Pledgee’s custody the capital contribution certificate for the Equity Interest and the shareholders’ register containing the Pledge within one week from the execution of this Agreement. The Pledgee shall have custody of such documents during the entire Term of the Pledge set forth in this Agreement. |
| Section 5 | Representations and Warranties of the Pledgor and Party C |
As of the execution of this Agreement, the Pledgor and Party C hereby jointly and respectively represent and warrant to Pledgee that:
| 5.1 | The Pledgor is the sole legal and beneficial owner of the Equity Interest. |
| 5.2 | The Pledgee shall have the right to dispose of and transfer the Equity Interest in accordance with the provisions set forth in this Agreement. |
| 5.3 | Except for the Pledge and the Transaction Documents, Each the Pledgor has not placed any security interest or other encumbrance on the Equity Interest. |
| 5.4 | The Pledgor and Party C have obtained any and all approvals and consents from applicable government authorities and third parties (if required) for execution, delivery and performance of this Agreement. |
| 5.5 | The execution, delivery and performance of this Agreement will not: (i) violate any relevant PRC laws; (ii) conflict with Party C’s Sections of association or other constitutional documents; (iii) result in any breach of or constitute any default under any contract or instrument to which it is a party or by which it is otherwise bound; (iv) result in any violation of any related condition for the grant and/or maintenance of any permit or approval granted to any Party; or (v) cause any permit or approval granted to any Party to be suspended, cancelled or attached with additional conditions. |
4
| Section 6 | Covenants of the Pledgor and Party C |
| 6.1 | During the term of this Agreement, the Pledgor and Party C hereby jointly and respectively covenant to the Pledgee: |
| 6.1.1 | the Pledgor shall not transfer the Equity Interest, place or permit the existence of any security interest or other encumbrance on the Equity Interest or any portion thereof, without the prior written consent of Pledgee, except for the performance of the Transaction Documents; |
| 6.1.2 | the Pledgor and Party C shall comply with the provisions of all laws and regulations related to the pledge of rights, and within ten (10) days of receipt of any notice, order or recommendation issued or prepared by relevant competent authorities regarding the Pledge, shall present the aforementioned notice, order or recommendation to Pledgee, and shall comply with the aforementioned notice, order or recommendation or submit objections and representations with respect to the aforementioned matters upon Pledgee’s reasonable request or upon consent of Pledgee; |
| 6.1.3 | the Pledgor and Party C shall promptly notify Pledgee of any event or notice received by the Pledgor that may cause any impact on the Equity Interest or any portion thereof, as well as any event or notice received by the Pledgor that may have an impact on any guarantees and other obligations of the Pledgor arising out of this Agreement. |
| 6.1.4 | To maintain the validity of this Agreement, Party C shall complete the registration for the extension of its operation term within three (3) months prior to the expiration of its operation term. |
| 6.2 | the Pledgor agree that the rights acquired by Pledgee in accordance with this Agreement with respect to the Pledge shall not be interrupted or harmed by the Pledgor or any heirs or representatives of such the Pledgor or any other persons through any legal proceedings. |
| 6.3 | To protect or perfect the security interest granted by this Agreement for fulfillment of Contract Obligations and repayment of Secured Indebtedness, the Pledgor hereby undertake to execute in good faith and to cause other parties who have an interest in the Pledge to execute all certificates, agreements, deeds and/or covenants required by Pledgee. the Pledgor also undertake to perform and to cause other parties who have an interest in the Pledge to perform actions required by Pledgee, to facilitate the exercise by Pledgee of its rights and authority granted thereto by this Agreement, and to enter into all relevant documents regarding ownership of Equity Interest with Pledgee or designee(s) of Pledgee (natural persons/legal persons). the Pledgor undertake to provide Pledgee within a reasonable time with all notices, orders and decisions regarding the Pledge that are required by Pledgee. |
| 6.4 | The Pledgor hereby undertake to comply with and perform all guarantees, promises, agreements, representations and conditions under this Agreement. In the event of failure or partial performance of its guarantees, promises, agreements, representations and conditions, the Pledgor shall indemnify Pledgee for all losses resulting therefrom. |
5
| Section 7 | Event of Default |
| 7.1 | The following circumstances shall be deemed Event of Default: |
| 7.1.1 | The Pledgor’ any breach to any obligations under the Transaction Documents and/or this Agreement. |
| 7.1.2 | Party C’s any breach to any obligations under the Transaction Documents and/or this Agreement. |
| 7.2 | Upon notice or discovery of the occurrence of any circumstances or event that may lead to the aforementioned circumstances described in Section 7.1, the Pledgor and Party C shall immediately notify Pledgee in writing accordingly. |
| 7.3 | Unless an Event of Default set forth in this Section 7.1 has been successfully resolved to Pledgee’s satisfaction within twenty (20) days after the Pledgee and/or Party C delivers a notice to the Pledgor requesting rectification of such Event of Default, Pledgee may issue a Notice of Default to the Pledgor in writing at any time thereafter, demanding the exercise of Pledge in accordance with the provisions of Section 8 of this Agreement. |
| Section 8 | Exercise of Pledge |
| 8.1 | Pledgee shall issue a Notice of Default to the Pledgor when exercising the Pledge. |
| 8.2 | Subject to the provisions of Section 7.3, Pledgee may exercise the right to enforce the Pledge at any time after the issuance of the Notice of Default. Once Pledgee elects to enforce the Pledge, the Pledgor shall cease to be entitled to any rights or interests associated with the Equity Interest. |
| 8.3 | After Pledgee issues a Notice of Default to the Pledgor in accordance with Section 8.1, Pledgee may exercise any remedy measure under applicable PRC laws, the Transaction Documents and this Agreement, including but not limited to being paid in priority with the Equity Interest based on the monetary valuation that such Equity Interest is converted into or from the proceeds from auction or sale of the Equity Interest. The Pledgee shall not be liable for any loss incurred by the Pledgee’s duly exercise of such rights and powers. |
| 8.4 | The proceeds from exercise of the Pledge by Pledgee shall be used to pay for tax and expenses incurred as result of disposing the Equity Interest and to perform Contract Obligations and pay the Secured Indebtedness to the Pledgee prior and in preference to any other payment. After the payment of the aforementioned amounts, the remaining balance shall be returned to the Pledgor or any other person who have rights to such balance under applicable laws or be deposited to the local notary public office where such the Pledgor resides, with all expense incurred being borne by such the Pledgor. To the extent permitted under applicable PRC laws, the Pledgor shall unconditionally donate the aforementioned proceeds to Pledgee or any other person designated by Pledgee. |
6
| 8.5 | Pledgee may exercise any remedy measure available simultaneously or in any order. Pledgee may exercise the right to being paid in priority with the Equity Interest based on the monetary valuation that such Equity Interest is converted into or from the proceeds from auction or sale of the Equity Interest under this Agreement, without exercising any other remedy measure first. |
| 8.6 | Pledgee is entitled to designate an attorney or other representatives to exercise the Pledge on its behalf, and the Pledgor or Party C shall not raise any objection to such exercise. |
| 8.7 | When Pledgee disposes of the Pledge in accordance with this Agreement, the Pledgor and Party C shall provide necessary assistance to enable Pledgee to enforce the Pledge in accordance with this Agreement. |
| Section 9 | Breach of Agreement |
| 9.1 | If the Pledgor or Party C conducts any material breach of any term of this Agreement, Pledgee shall have right to terminate this Agreement and/or require the Pledgor or Party C to indemnify all damages; this Section 9 shall not prejudice any other rights of Pledgee herein; |
| 9.2 | The Pledgor and Party C shall not have any right to terminate this Agreement in any event unless otherwise required by the applicable laws. |
| Section 10 | Assignment |
| 10.1 | Without Pledgee’s prior written consent, the Pledgor and Party C shall not have the right to donate or assign their rights and obligations under this Agreement. |
| 10.2 | This Agreement shall be binding on the Pledgor and his/her heirs and permitted assigns, and shall be valid with respect to Pledgee and each of his/her heirs and assigns. |
| 10.3 | At any time, Pledgee may assign any and all of its rights and obligations under the Transaction Documents and under this Agreement to its designee(s), in which case the designee shall have the rights and obligations of Pledgee under the Transaction Documents and this Agreement, as if it were the original party to the Transaction Documents and this Agreement. |
| 10.4 | In the event of a change in Pledgee due to an assignment, the Pledgor and/or Party C shall, at the request of Pledgee, execute a new pledge agreement with the new pledgee on the same terms and conditions as this Agreement, and register the same with the relevant AMR. |
7
| 10.5 | The Pledgor and Party C shall strictly abide by the provisions of this Agreement and other contracts jointly or separately executed by the Parties hereto or any of them, including the Transaction Documents, perform the obligations hereunder and thereunder, and refrain from any action/omission that may affect the effectiveness and enforceability thereof. Any remaining rights of the Pledgor with respect to the Equity Interest pledged hereunder shall not be exercised by any the Pledgor except in accordance with the written instructions of Pledgee. |
| Section 11 | Termination |
| 11.1 | This Agreement shall be terminated upon the fulfillment of all Contract Obligations and the full repayment of all Secured Indebtedness. Upon the fulfillment of all Contract Obligations and the full repayment of all Secured Indebtedness by the Pledgor and Party C, Pledgee shall release the Pledge under this Agreement upon the Pledgor’ request as soon as reasonably practicable and shall assist the Pledgor to de-register the Pledge from the shareholders’ register of Party C and cancel the registration of Pledge with relevant AMR. |
| 11.2 | The provisions under Sections 9, 13, 14 and 11.2 herein of this Agreement shall survive the expiration or termination of this Agreement. |
| Section 12 | Handling Fees and Other Expenses |
All fees and out of pocket expenses relating to this Agreement, including but not limited to legal costs, costs of production, stamp tax and any other taxes and fees, shall be borne by Party C.
| Section 13 | Confidentiality |
The Parties acknowledge that the existence and the terms of this Agreement and any oral or written information exchanged between the Parties in connection with the preparation and performance this Agreement are regarded as confidential information. Each Party shall maintain the confidentiality of all such confidential information, and without obtaining the written consent of the other Party, it shall not disclose any relevant confidential information to any third parties, except for the information that: (a) is or will be in the public domain (other than through the receiving Party’s unauthorized disclosure); (b) is under the obligation to be disclosed pursuant to the applicable laws or regulations, rules of any stock exchange, or orders of the court or other government authorities; or (c) is required to be disclosed by any Party to its shareholders, directors, employees, legal counsels or financial advisors regarding the transaction contemplated hereunder, provided that such shareholders, directors, employees, legal counsels or financial advisors shall be bound by the confidentiality obligations similar to those set forth in this Section. Disclosure of any confidential information by the shareholders, director, employees of or agencies engaged by any Party shall be deemed disclosure of such confidential information by such Party and such Party shall be held liable for breach of this Agreement.
8
| Section 14 | Governing Law and Resolution of Disputes |
| 14.1 | The execution, effectiveness, construction, performance, amendment and termination of this Agreement and the resolution of disputes hereunder shall be governed by the laws of the PRC. |
| 14.2 | In the event of occurrence of any dispute arising from or with respect to the interpretation and performance of this Agreement, the Parties shall first resolve the dispute through friendly negotiations. Where the dispute is not solved within 30 days after delivery of request for friendly negotiation by any Party to other Parties, either Party may submit the relevant dispute to the China International Economic and Trade Arbitration Commission for arbitration in accordance with its arbitration rules. The place of arbitration shall be Beijing. The arbitration award shall be final and binding on the Parties. |
| 14.3 | During the process of arbitration regarding any dispute arising from or with respect to the interpretation and performance of this Agreement or any other dispute, the Parties shall continue to exercise their respective rights under this Agreement and perform their respective obligations under this Agreement except for the matters under dispute. |
| Section 15 | Notices |
| 15.1 | All notices and other communications required or permitted to be given pursuant to this Agreement shall be delivered personally or sent by registered mail, postage prepaid, by a commercial courier service or by facsimile transmission to the address of such party below. A confirmation copy of each notice shall also be sent by E-mail. The dates on which notices shall be deemed to have been effectively given shall be determined as follows: |
| 15.1.1 | Notices given by personal delivery, courier service, registered mail or prepaid postage shall be deemed effectively given on the date of receipt or refusal at the address set forth below. |
| 15.1.2 | Notices given by facsimile transmission shall be deemed effectively given on the date of successful transmission to the Fax no. set forth below (as evidenced by an automatically generated confirmation of transmission). |
| 15.2 | For the purpose of notices, the addresses of the Parties are as follows: |
If to Party A, Party B and Party C:
Address: 4th Floor, Building 2 (Block D), Xx. 000, Xxxx Xxxxxxxxx, Xxxxxxxx, Xxxxxxxx Xxxxxxxx, Xxxxxxx
Attn: SHEN Peng
Telephone: [***]
Email: [***]
9
| 15.3 | Any Party may at any time change its address for notices by a notice delivered to the other Parties in accordance with the terms of this Section. |
| Section 16 | Severability |
In the event that one or several of the provisions of this Contract are found to be invalid, illegal or unenforceable in any aspect in accordance with any laws or regulations, the validity, legality or enforceability of the remaining provisions of this Contract shall not be affected or compromised in any respect. The Parties shall strive in good faith to replace such invalid, illegal or unenforceable provisions with effective provisions that accomplish to the greatest extent permitted by law and the intentions of the Parties, and the economic effect of such effective provisions shall be as close as possible to the economic effect of those invalid, illegal or unenforceable provisions.
| Section 17 | Effectiveness |
| 17.1 | This Agreement shall become effective upon execution by the Parties |
| 17.2 | Any amendments, supplements and changes to this Agreement shall be in writing and shall become effective upon completion of the governmental filing procedures (if applicable) after the affixation of the signatures or seals of the Parties. |
| Section 18 | Language and Counterparts |
This Agreement is written in Chinese in four copies. The Pledgor, the Pledgee and Party C shall hold one copy respectively and the other copy shall be used for registration.
[The Remainder of this page is intentionally left blank]
10
IN WITNESS WHEREOF, the Parties have caused their authorized representatives to execute this Equity Interest Pledge Agreement as of the date first above written.
Party A: Beijing Absolute Health Ltd. (seal)
[Company seal is affixed]
Signed by: /s/ SHEN Peng
Name: SHEN Peng
Title: Authorized Representative
Party B: SHEN Peng
Signed by: /s/ SHEN Peng
Party C: Beijing Shuidi Hubao Technology Co., Ltd. (seal)
[Company seal is affixed]
Signed by: /s/ SHEN Peng
Name: SHEN Peng
Title: Authorized Representative
Signature Page to Equity Interest Pledge Agreement
