EQUITY INTEREST PLEDGE AGREEMENT
THIS
EQUITY
INTEREST PLEDGE
AGREEMENT (“Agreement”)
is
entered into by and between the following parties on March 31, 2008
Pledgee:
Beijing Huate Xingye Keji Co., Ltd. (“Party A”)
Registered
address: [Room 5107, Xxxxxxxxx Xxxxxxxx, 00 Xxxxxxx Xxxx, Xxxxxxx Xxxxxxxx,
Xxxxxxx]
Pledgor:
Dalian
Xxxxxxx Group Co., Ltd.
(“Party B”)
Address:
Xx. X0 Xxxxx 00, Xx.0 Xxxxxxxx Xxxx, Xxxxxxxxx Xxxxxxxx, Dalian
(each
a
“Party”
and
collectively the “Parties”)
WHEREAS:
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1.
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The
Pledgee is a wholly
foreign-owned enterprise duly established and valid existing under
the PRC
laws. The Pledgee and [Dalian
Xxxxxxx International Logistics Co., Ltd.]
owned by the Pledgor entered into Exclusive Technical Consulting
and
Service Agreement on [March 31, 2008] (the “Service
Agreement”).
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2.
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The
Pledgor, a local citizen of the People’s Republic of China (the
“PRC”),
who holds 51% equity interest of [DALIAN XXXXXXX INTERNATIONAL LOGISTICS
CO., LTD.], which is a
limited liability company duly established and valid existing
in
Beijing under the laws of PRC.
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3.
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Pursuant
to the Service Agreement, [DALIAN XXXXXXX INTERNATIONAL LOGISTICS
CO.,
LTD.] shall make certain payments to the Pledgee in consideration
of the
services and consultant provided by the Pledgee thereunder. In order
to
ensure that the Pledgee collects technical fee from [DALIAN XXXXXXX
INTERNATIONAL LOGISTICS CO., LTD.], the Pledgor is willing to pledge
all
its equity interest in [DALIAN XXXXXXX INTERNATIONAL LOGISTICS CO.,
LTD.]
to the Pledgee as a security for the Pledgee to collect the technical
consulting and service fees under the Service
Agreement.
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NOW
THEREFORE, through
mutual negotiations, the Parties hereto agree as follows:
Article
1 Definitions
Unless
it
is otherwise stipulated, for the purpose of this Agreement, the following terms
shall have the following meanings:
| 1.1 |
Pledge
means the full meaning assigned to that term in Article 2 of
this
Agreement.
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| 1.2 |
Equity
Interest means the 51% equity interest (the “Equity
Interest”)
in [DALIAN XXXXXXX INTERNATIONAL LOGISTICS CO., LTD.] legally
held by the
Pledgor and all the other equity interest which might be further
held by
the Pledgor;
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| 1.3 |
Rate
of Pledge means the ratio between the value of the pledge under
this
Agreement and the technical consulting fees under the Service
Agreement.
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1
| 1.4 |
Term
of Pledge means the period provided for under Article 3.2
hereunder.
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| 1.5 |
Service
Agreement means the Exclusive Technical Consulting and Service
Agreement
entered into by and between [DALIAN XXXXXXX INTERNATIONAL LOGISTICS
CO.,
LTD.] and the Pledgee.
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1.6
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Event
of Default means any event in accordance with Article 7
hereunder.
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1.7
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Notice
of Default means the notice of default issued by the Pledgee
in accordance
with this Agreement.
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Article
2 Pledge
| 2.1 |
Party
B agrees to pledge all its Equity Interest in [DALIAN XXXXXXX
INTERNATIONAL LOGISTICS CO., LTD.] to the Pledgee as a guarantee
for the
technical consulting service fee payable to the Pledgee under
the Service
Agreement.
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2.2
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Pledge
under this Agreement refers to the rights owned by the Pledgee
who shall
be entitled to have priority in receiving payment or proceeds
from the
auction or sale of the equity interest pledged by the Pledgor
to the
Pledgee.
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Article
3 Rate
of Pledge and Term of Pledge
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3.1
|
The
Rate of Pledge:
100%
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The
Rate
of Pledge shall be 100% under this Agreement.
| 3.2 |
The
Term of Pledge
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| 3.1.1 |
The
Pledge of the Equity Interest under this Agreement shall take effect
as of
the date that the Pledge of the Equity Interest is recorded in
the
register of shareholders of [DALIAN XXXXXXX INTERNATIONAL LOGISTICS
CO.,
LTD.].
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| 3.1.2 |
During
the Term of Pledge, the Pledgee shall be entitled to foreclose
on the
Pledge in accordance with this Agreement in the event that [DALIAN
XXXXXXX
INTERNATIONAL LOGISTICS CO., LTD.] fails to pay exclusive technical
consulting and service fees in accordance with Service
Agreement.
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Article
4 Physical
Possession of Documents
| 4.1 |
During
the Term of Pledge, the Pledgee shall be entitled to possess
the
contribution certificate of the Equity Interest (the “Contribution
Certificate”)
and the register of shareholders of [DALIAN XXXXXXX INTERNATIONAL
LOGISTICS CO., LTD.]. The Pledgor shall delivery the Contribution
Certificate and the register of shareholders hereunder to the
Pledgee
within one week after the signature date of this
Agreement.
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2
| 4.2 |
The
Pledgee shall be entitled to collect the dividends from the Equity
Interest.
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Article
5 Representations
and Warranties of Party B
| 5.1 |
Party
B is the legal owner of the Equity
Interest.
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5.2
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Except
as otherwise provided hereunder, the Pledgee shall not be interfered
with
by any parties at any time when the Pledgee exercising its rights
in
accordance with this Agreement.
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5.3
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Except
as otherwise provided hereunder, the Pledgee shall be entitled
to
exercise, dispose of or assign the Pledge in accordance with
this
Agreement.
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5.4
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The
Pledgor shall not pledge or encumber the Equity Interest to any
other
person except for the
Pledgee.
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Article
6 Covenant
of the Pledgor
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6.1
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During
the effective term of this Agreement, the Pledgor covenants to
the Pledgee
that the Pledgor shall:
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| 6.1.1 |
Except
for the transfer of the Equity Interest by the Pledgor, Recon
Technology,
Co., Limited and [DALIAN
XXXXXXX INTERNATIONAL LOGISTICS CO., LTD.]
as
subject to the Exclusive Equity Interest Purchase Agreement entered
into
by and among the Pledgor and Recon Technology, Co., Limited to
transfer
the Equity Interest to the Pledgor or the specified person consigned
by
the Pledgor (“Specified
Person”),
not transfer or assign the Equity Interest, create or permit
to be created
any pledges which may have an adverse affect on the rights or
benefits of
the Pledgee without prior written consent from the Pledgee.
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6.1.2
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Comply
with and implement laws and regulation with respect to the right
of
pledge, present to the Pledgee the notices, orders or suggestions
with
respect to the Pledge issued or made by the competent authority
after
receiving such notices, orders or suggestions and comply with
such
notices, orders or suggestions, or object to the foregoing matters
at the
reasonable request of the Pledgee or with the written consent
from the
Pledgee.
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6.1.3
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Timely
notify the Pledgee of any events or any received notices which
may affect
the Pledgor’s Equity Interest or any part of its right, and any events or
any received notices which may change any of the Pledgor’s convenants and
obligations under this Agreement or which may affect the Pledgor’s
performance of its obligation under this
Agreement.
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| 6.2 |
The
Pledgor agrees that the Pledgee’s right to exercise the Pledge obtained
from this Agreement shall not be suspended or hampered through
legal
procedure by the Pledgor or any successors of the Pledgor or
any person
authorized by the Pledgor or any person authorized by the
Pledgor..
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3
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6.3
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The
Pledgor warrants to the Pledgee that in order to protect or perfect
the
security over the payment of the technical consulting and service
fees
under the Service Agreement, the Pledgor shall execute in good
faith and
cause other parties who have interest in the Pledge to execute
all the
title certificates, contracts, and/or perform and cause other
parties who
have interests to take action as required by the Pledgee and
provide
access to exercise the rights and authorization vested in the
Pledgee
under this Agreement, and execute all the documents with respect
to the
changes or certificate of the Equity Interest with the Pledgee
or the
person (natural person or legal entity) designated by the Pledgee,
and
provide all the notices, orders and decisions regarded as necessary
by the
Pledgee to the Pledgee within the reasonable time.
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6.4
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The
Pledgor warrants to the Pledgee that the Pledgor will comply
with and
perform all the guarantees, covenants, agreements, representations
and
conditions for the benefits of the Pledgee. The Pledgor shall
compensate
all the losses suffered by the Pledgee in the event that the
Pledgor does
not perform or fully perform his guarantees, covenants, agreements,
representations and conditions.
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Article
7 Events
of Default
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7.1
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The
events listed below shall be deemed as an event of
default:
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| 7.1.1 |
[DALIAN
XXXXXXX INTERNATIONAL LOGISTICS CO., LTD.] fails to make full
payments of
the exclusive technical consulting and service fees as scheduled
under the
Service Agreement.
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7.1.2
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The
Pledgor makes any material misleading or fraudulent representations
or
warranties under Article 5 herein, and/or the Pledgor is in
violation of
any warranties under Article 5
herein.
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7.1.3
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The
Pledgor violates the covenants under Article 6
herein.
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7.1.4
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The
Pledgor violates any terms or conditions herein.
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7.1.5
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The
Pledgor waives the pledged Equity Interest or transfers or
assigns the
pledged Equity Interest without prior written consent of the
Pledgee,
except as provided in Article 6.1.1 in this Agreement.
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7.1.6
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Any
external loan, security, compensation, covenants or other compensation
liabilities of the Pledgor’s (1) are required to be repaid or performed
prior to the scheduled date; or (2) are due but cannot be repaid
or
performed as scheduled and thereby cause the Pledgee to deem
that the
Pledgor’s capacity to perform the obligations herein is
effected.
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7.1.7
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The
Pledgor is incapable of repaying its general debt or other
debt.
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7.1.8
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This
Agreement becomes illegal for the reason of the promulgation
of the
related laws or the Pledgor’s incapability of continuing to perform the
obligations herein.
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7.1.9
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Any
approval, permits or authorization from the competent authority
of the
government needed to perform this Agreement or validate this
Agreement are
withdrawn, suspended, invalidated or materially revised.
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4
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7.1.10
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The
property of the Pledgor adversely changed and causes the Pledgee
to deem
that the capability of the Pledgor to perform the obligations
herein under
this Agreement is effected.
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7.1.11
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The
successors or assignees of [DALIAN XXXXXXX INTERNATIONAL LOGISTICS
CO.,
LTD.] are only entitled to perform a portion of or refuse to
perform the
payment liability under Service
Agreement.
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7.1.12
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Other
circumstances whereby the Pledgee is incapable of exercising
the right to
foreclose on the Pledge in accordance with the related
laws.
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7.2
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Party
B should immediately notice Party A in writing if the Pledgor
is aware of
or finds that any event under Article 7.1 herein or any events
that may
result in the foregoing events have occurred or are occurring.
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| 7.3 |
Unless
the Event of Default under Article 7.1 herein has been remedied
to the
Pledgee’s satisfaction, the Pledgee, at any time when the Event of Default
occurs or thereafter, may give a written notice of default to
the Pledgor
and require the Pledgor to immediately make full payments of
the
outstanding service fees under the Service Agreement and other
payables or
foreclose on the Pledge in accordance with Article 8 herein.
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Article
8 Exercise
of the Right of the Pledge
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8.1
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The
Pledgor shall not transfer or assign the Equity Interest without
prior
written approval from the Pledgee prior to the full repayment of
the
consulting and service fees under the Service
Agreement.
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8.2
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The
Pledgee shall give the Notice of Default to the Pledgor when the
Pledgee
exercises the right of pledge.
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8.3
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Subject
to Article 7.3, the Pledgee may exercise the right to foreclose on
the
Pledge at any time when the Pledgee gives the Notice of Default pursuant
to Article 7.3
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8.4
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The
Pledgee is entitled to have priority in receiving payment or proceeds
from
the auction or sale of whole or part of the Equity Interest pledged
herein
in accordance with applicable law until the outstanding technical
consulting and service fees and all other payables under the Service
Agreement are repaid.
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8.5
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The
Pledgor shall not hinder the Pledgee from foreclosing on the Pledge
in
accordance with this Agreement and shall give necessary assistance
so that
the Pledgee may effectively realize the value of the Pledge.
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Article
9 Transfer
or Assignment
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9.1
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The
Pledgor shall not donate or transfer his rights or obligations herein
without the prior written consent from the Pledgee.
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5
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9.2
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This
Agreement shall be binding upon and inure to the benefit of the successors
of the Pledgor and be effective to the Pledgee and his each successor
and
assignee.
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9.3
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The
Pledgee may transfer or assign his all or any rights and obligations
under
the Service Agreement to any person (natural person or legal entity)
at
any time. In this case, the assignee shall enjoy and undertake the
same
rights and obligations herein of the Pledgee as if the assignee is
a party
hereto. When the Pledgee transfers or assigns the rights and obligations
under the Service Agreement, at the request of the Pledgee, the Pledgor
shall execute the relevant agreements and/or documents with respect
to
such transfer or assignment.
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9.4
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Due
to the Pledgee’s change resulting from the transfer or assignment, the new
parties to the pledge shall re-execute a pledge
contract.
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Article
10 Termination
| 10.1 |
This
Agreement shall not be terminated until the consulting and service
fees
under the Service Agreement are paid in full and [DALIAN XXXXXXX
INTERNATIONAL LOGISTICS CO., LTD.] shall no longer undertake
any
obligations under the Service Agreement.
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Article
11 Formalities
Fees and Other Expenses
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11.1
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The
Pledgor shall be responsible for all the fees and actual expenditures
in
relation to this Agreement, including but not limited to legal
fees, cost
of production, stamp tax and any other taxes and charges. If the Pledgee
pays the relevant taxes in accordance with the laws, the Pledgor
shall
fully indemnity such taxes paid by the
Pledge.
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| 11.2 |
The
Pledgor shall be responsible for all the fees (including but
not limited
to any taxes, formalities fees, management fees, litigation fees,
attorney’s fees, and various insurance premiums in connection with
disposition of the Pledge) incurred by the Pledgor for the reason
that the
Pledgor fails to pay any payable taxes, fees or charges in accordance
with
this Agreement, or the Pledgee has recourse to any forgoing taxes,
charges
or fees by any means for other reasons.
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Article
12 Force
Majeure
| 12.1 |
If
the fulfillment of this Agreement is delayed or blocked due to the
Force
Majeure Event, the party affected by such a Force Majeure Event shall
free
from any obligation to the extent of delay or holdback. Force Majeure
Event (“Event”) means any event which is out of control of each party, and
which is unavoidable or insurmountable even the party affected by
such
event has paid reasonable attention to it. The Event shall include,
but
not limited to, government actions, nature disaster, fire, explosion,
typhoons, floods, earthquakes, tide, lightning or war. However, any
lack
of credit, assets or financing shall not be deemed as Event. The
party
claiming the occurrence of Event shall provide the other party with
the
steps of fulfilling the obligations of this Agreement.
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6
| 12.2 |
The
Party affected by such an Event shall free from any obligation under
this
Agreement based on the conditions that the Party affected by such
an Event
have made reasonable endeavors to perform the Agreement and request
the
exemption from the other party. The both Parties agree to do their
best to
recover performance of this Agreement if the reason for exemption
has been
corrected or remedied.
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Article
13 Dispute
Settlement
| 13.1 |
This
Agreement shall be governed by and construed in all respects
in accordance
with the PRC laws.
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| 13.2 |
The
Parties shall strive to settle any dispute arising from the interpretation
or performance, or in connection with this Agreement through
friendly
consultation. In case no settlement can be reached through consultation,
each Party can submit such matter to China International Economic
and
Trade Arbitration Committee for arbitration according to the
current
effective arbitration rules of its. The arbitration shall be
held in
Beijing. The arbitration proceedings shall be conducted in Chinese.
The
arbitration award shall be final and binding upon the Parties.
The
arbitration award may be submitted to the applicable People’s Court for
enforcement.
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Article
14 Notices
| 14.1 |
Any
notice to which is given by the both Parties hereto for the purpose
of
performing the rights and obligations hereunder shall be in writing.
Where
such notice is delivered personally, the time of notice is the
time when
such notice actually reaches the addressee; where such notice
is
transmitted by telex or facsimile, the notice time is the time
when such
notice is transmitted. If such notice does not reach the addressee
on
business date or reaches the addressee after the business time,
the next
business day following such day is the date of notice. The delivery
place
is the address first written above of the Parties hereto or the
address
advised in writing including facsimile and telex from time to
time.
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Article
15 Appendix
| 15.1 |
The
Appendix of this Agreement as attached hereto is the part of
this
Agreement.
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Article
16 Effectiveness
| 16.1 |
This
Agreement and any amendments, supplements and modifications of
this
Agreement shall be in writing, and come into effect upon being
executed by
the Parties thereto.
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| 16.2 |
This
Agreement is executed both in Chinese and English with two copies
for each
language. The Chinese version will prevail in the event of any
inconsistency between the English and any Chinese translations
thereof.
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[THIS
SPACE IS INTENTIONALLY LEFT BLANK]
7
This
page
is the signing page of this Equity Interest Pledge Agreement.
IN
WITNESS WHEREOF,
the
undersigned have executed this Agreement as of the date first set forth above
written.
Party
A: /s/ Beijing Huate Xingye Keji Co., Ltd.
Legal
Representative: Du
Guangwen
Party
B: /s/ Dalian
Xxxxxxx Group Co., Ltd.
Signature:
Li
Honglin
8
APPENDIX
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1.
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The
register of the shareholders of Dalian
Xxxxxxx International Logistics Co.,
Ltd.
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2.
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The
Contribution Certificate of Dalian
Xxxxxxx International Logistics Co.,
Ltd.
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| 3. |
The
Exclusive Technical Consulting and Service
Agreement.
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9
