Share Pledge Agreement
Exhibit
4.66
This
Share Pledge Agreement (this “Agreement”) is entered into on May 13, 2010 in
Beijing by and among the following parties:
|
Party
A:
|
KONGZHONG
CHINA CO., LTD.,
|
|
Party
B:
|
SHANGHAI
DACHENG NETWORK TECHNOLOGY CO.,
LTD.,
|
|
Party
C:
|
XXXX
XXXX
|
|
Party
D:
|
XXXXXX
XXXX
|
WHEREAS,
|
1.
|
Party
A is a wholly foreign owned company registered in the PRC. (hereinafter
referred to as the “Pledgee”)
|
|
2.
|
Party
B is a limited company registered in
China.
|
|
3.
|
Party
C (which own 40.8%) and party D (which own 59.2%) are all shareholders of
Party B (the “Shareholders of Party B”). Party C and Party D hereinafter
referred to as the “Pledgor”.
|
|
4.
|
All
parties to this Agreement have signed Business Operation Agreement and
Option Agreement respectively on May 13,
2010.
|
|
5.
|
Party
A and Party B have signed Exclusive Technical Consultation and Service
Agreement on May 13, 2010.
|
|
6.
|
In
order to guarantee that Party A collects normally technical service fees
under the Exclusive Technical Consulting and Services Agreement, and to
ensure the performance of Business Operation Agreement and Option
Agreement, the Pledgors are willing to severally and jointly pledge all
their equity interest in Party B to the Pledgee as a security for the
performance of the obligations under the aforesaid agreement, with Party A
as the Pledgee.
|
Therefore,
through friendly negotiations and in the principles of equality and mutual
benefit, the parties hereby enter agreement as follows.
1
|
1.
|
Definitions
|
Unless
otherwise provided in this Agreement, the following terms shall have the
following meanings:
|
1.1
|
Pledge
means the full content of Article 2
hereunder.
|
|
1.2
|
Equity
Interest means 100% equity interests in Party B legally and jointly held
by the Pledgors and all the present and future rights and benefits based
on such equity interest.
|
|
1.3
|
Reorganization
Agreements mean Exclusive Technical Consultation and Service Agreement
signed by the parties on May 13, 2010, Business Operation Agreement and
Option Agreement signed by the parties respectively on May 13,
2010.
|
|
1.4
|
Event
of Default means any event in accordance with Article 7
hereunder.
|
|
1.5
|
Notice
of Default means the notice of default issued by the Pledgee in accordance
with this Agreement.
|
|
2.
|
Pledge
|
|
2.1
|
The
Pledgors agree to pledge all the equity interest in Party B to Party A as
the security for Party A’s rights and interest under the reorganization
agreements.
|
|
2.2
|
The
Pledge under this Agreement refers to the rights owned by the Pledgee to
collect the fees (including legal fees), expenses and losses that Party B
shall pay under the Technical Consulting and Service Agreement, and civil
liabilities that Party B or Pledgors shall bear in case the Reorganization
Agreement wholly or partially becomes nullify due to any
reason.
|
|
2.3
|
The
Pledge under this Agreement refers to the prior right owned by the Pledgee
to the money gained from the conversion, auction, or sell of the equity
interests pledged by the Pledgor to the
Pledgee.
|
|
2.4
|
The
pledge under this Agreement will be discharged only when Party B and
Pledgors have performed all the obligations and liabilities under the
Reorganization Agreement and Party A confirms in writing. If Party B or
Pledgors have not fully performed all or part of its obligations or
liabilities under the Reorganization Agreement at the expiration of such
agreements, Party A will maintain the pledge hereunder up to the date when
all such obligations and liabilities are fully
performed.
|
2
|
3.
|
Effect
|
|
3.1
|
This
Agreement shall take effect as of the date when the equity shares pledged
are recorded in the Register of Shareholder of Party
B.
|
|
3.2
|
Party
A is entitled to dispose the pledge hereunder if Party B fails to pay the
fees in accordance with the Technical Consulting and Service Agreement or
fail to perform the Business Operation Agreement and the Option
Agreement.
|
|
4.
|
Physical
Possession Of Documents
|
|
4.1
|
During
the term of Pledge under this Agreement, the Pledgor shall deliver the
physical possession of the Certificate of Distribution (original) of Party
B and provide the testify of the proper record of such pledge on the
shareholders’ register of Party B to Party A within one week as of the
date of conclusion of this
Agreement.
|
|
4.2
|
The
Pledgor shall be entitled to collect the incomes (such as, including but
not limited to, any dividends and profits) from the equity interests,
which shall become the assurance for the debt of the Pledgor within the
term of this Agreement, unless consented otherwise in writing by Party
A.
|
|
5
|
Warranties
And Representation Of The Pledgor
|
The
Pledgors hereby make the following representation and warranties to the Pledgee
and confirm that Party A executes this Agreement in reliance of such
representation and warranties:
|
5.1
|
The
Pledgors lawfully own the equity interests hereunder and are entitled to
create pledge on such the equity
interests;
|
|
5.2
|
Party
A shall not be interfered by any other parties once the Party A exercises
the rights of the Pledge in accordance with this
Agreement.
|
|
5.3
|
Party
A is entitled to dispose the pledge in accordance with relevant laws and
this Agreement.
|
|
5.4
|
The
execution and performance of this Agreement of the Pledgor has gained all
necessary authorization and shall not violate any applicable laws and
regulations. The representative who signs this Agreement shall be lawfully
and effectively authorized.
|
3
|
5.5
|
Except
for the pledge under this Agreement, there is no other burden of rights on
the equity interests pledged by the Pledgors (including but not limited to
pledge).
|
|
5.6
|
There
is no pending or incoming civil, administrative or criminal litigation or
administrative punishment or arbitration relating to the equity interests
hereunder at the date of execution of this
Agreement.
|
|
5.7
|
There
are no outstanding taxes, fees or undecided legal procedures related with
the equity interests hereunder at the date of execution of this
Agreement.
|
|
5.8
|
Each
provision hereunder is the expression of each Party’s true meaning and
shall be binding upon all the
Parties.
|
|
6
|
Covenant
Of The Pledgor
|
|
6.1
|
During
the term of this Agreement, the Pledgor covenants to Party A that the
Pledgor will:
|
|
|
6.1.1
|
not
transfer or assign the equity interests, create or permit to create any
pledges which may have an adverse effect on the rights or benefits of the
Pledgee without prior written consent from the Pledgee except transfer to
the Pledgee or the person designated by the Pledgee as required by the
Pledgee;
|
|
|
6.1.2
|
comply
with and implement laws and regulations with respect to the pledge of
rights, present to Party A the notices, orders or suggestions with respect
to the Pledge issued or made by the competent authority within five days
upon receiving such notices, orders or suggestions and take actions in
accordance with the reasonable instruction of Party
A;
|
|
|
6.1.3
|
timely
notify Party A of any events or any received notices which may affect the
Pledgor’s equity interest or any part of its right, and any events or any
received notices which may change the Pledgor’s any covenant and
obligation under this Agreement or which may affect the Pledgor’s
performance of its obligations under this Agreement, take actions in
accordance with the instructions of Party
A;
|
|
6.2
|
The
Pledgors agree that Party A’s right of exercising the Pledge pursuant to
this Agreement shall not be suspended or hampered by the Pledgors or any
successors or transferees of the Pledgors or any other
persons.
|
4
|
6.3
|
The
Pledgors warrant to Party A that in order to protect or perfect the
security over the payment of the technical consulting and service fees
under the Technical Consulting and Service Agreement, the Pledgors shall
execute in good faith and cause other parties who have interests in the
pledge to execute all the title certificates, contracts, and /or perform
and cause other parties who have interests to take action as required by
the Pledgee and make access to exercise the rights and authorization
vested in the Pledgee under this Agreement, and execute all the documents
with respect to the changes of certificate of equity interests with the
Pledgee or another party designated by the Pledgee, and provides the
Pledgee with all the documents regarded as necessary to the Pledgee within
the reasonable time.
|
|
6.4
|
The
Pledgors warrants to Party A that the Pledgors will comply with and
perform all the guarantees, covenants, agreements, representations and
conditions for the benefits of the Pledgee. The Pledgor shall compensate
for all the losses suffered by Party A for the reasons that the Pledgor
does not perform or fully perform their guarantees, covenants, agreements,
representations and conditions.
|
|
7
|
Event
Of Default
|
|
7.1
|
The
following events shall be regarded as an event of
default:
|
|
|
7.1.1
|
Party
B or its successors or transferees fail to make full payment of service
fees under the Service Agreement on time, or the Pledgors or its
successors or transferees fail to perform the Business Operation Agreement
and the Option Agreement.;
|
|
|
7.1.2
|
The
Pledgors make any material misleading or fraudulent representations or
warranties under Article 5 and 6 herein, and/or the Pledgor is in
violation of any representations or warranties under Article 5 and 6
herein;
|
|
7.1.3
|
The
Pledgors gravely violate any provisions of this
Agreement;
|
|
|
7.1.4
|
The
Pledgors waive the pledged equity interests or transfers the pledged
equity interests without prior written consent from the Pledgee except
otherwise agreed under Article 6.1.1
herein;
|
|
|
7.1.5
|
The
Pledgor’s any external loan, security, compensation, covenants or any
other compensation liabilities (1) are required to be repaid or performed
prior to the scheduled date; or (2) are due but can not be repaid or
performed as scheduled and thereby cause the Pledgee to deem that the
Pledgor’s capacity to perform the obligations herein is
affected;
|
5
|
|
7.1.6
|
The
Pledgors are incapable of repaying the general debt or other debt, which
subsequently affects the interests of Party
A;
|
|
|
7.1.7
|
This
Agreement is illegal for the reason of the promulgation of any related
laws or the Pledgor's incapability of continuing to perform the
obligations herein;
|
|
|
7.1.8
|
Any
approval, permits, licenses or authorization from the competent authority
of the government needed to perform this Agreement or validate this
Agreement are withdrawn, suspended, invalidated or materially
amended;
|
|
|
7.1.9
|
The
property of the Pledgor is adversely changed and causes Party A to deem
that the capability of the Pledgor to perform the obligations herein is
affected;
|
|
7.1.10
|
Other
circumstances whereby the Pledgee is incapable of exercising the right to
dispose the Pledge in accordance with relevant
laws.
|
|
7.2
|
The
Pledgor shall immediately give a written notice to Party A if the Pledgor
is aware of or find that any event under Article 7.1 herein or any events
that may result in the foregoing events have happened or are going
on.
|
|
7.3
|
Unless
the event of default under Article 7.1 herein has been solved to Party A's
satisfaction, Party A, at any time when the event of default happens or
thereafter, may give a written notice of default to the Pledgor and
require the Pledgor to immediately make full payment of the outstanding
fees under the Service Agreement, and other payables or timely perform the
Business Operation Agreement or the Option Agreement, or dispose the
Pledge in accordance with Article 8
herein.
|
|
8
|
Exercise
Of The Right Of The Pledge
|
|
8.1
|
The
Pledgor shall not transfer the pledge without prior written approval from
Party A prior to the full repayment of the fees under the Service
Agreement and the full performance of the Business Operation Agreement or
the Option Agreement.
|
|
8.2
|
Party
A shall give a notice of default to the Pledgors when it exercises the
right of pledge.
|
6
|
8.3
|
Subject
to Article 7.3, the Pledgee may exercise the right to dispose the Pledge
at any time when Party A gives a notice of default in accordance with
Article 7.3 or thereafter.
|
|
8.4
|
Party
A is entitled to have priority in receiving payment by the evaluation or
proceeds from the auction or sale of whole or part of the share pledged
herein in accordance with legal procedure until the outstanding fees under
the Servicing Agreement and all other payables there under are repaid, and
the full performance of the Business Operation Agreement or the Option
Agreement.
|
|
8.5
|
The
Pledgors shall not hinder the Pledgee from disposing the Pledge in
accordance with this Agreement and shall give necessary assistance so that
the Pledgee could realize his
Pledge.
|
|
9
|
Transfer
|
|
9.1
|
The
Pledgors shall not transfer the rights and obligations to any third party
herein without prior consent from the
Pledgee.
|
|
9.2
|
This
Agreement shall be binding upon the Pledgors and their successors and be
effective to Party A and his successors and
assignees.
|
|
9.3
|
Party
A may transfer his all or any rights and obligations under the
Reorganization Agreement to any third party at any time. In this case, the
assignee shall enjoy and undertake the same rights and obligations herein
of Party A as if the assignee is a party hereto. When Party A transfers
the rights and obligations under the Reorganization Agreement, at the
request of Party A, the Pledgors shall execute relevant agreements and/or
documents with respect to such
transfer.
|
|
9.4
|
After
the Pledgee’s change resulting from the transfer, the new parties to the
pledge shall reexecute a pledge
agreement.
|
|
10
|
Fees
And Other Charges
|
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.
7
|
11
|
Force
Majeure
|
|
11.1
|
If
this Agreement is delayed in or prevented from performing in the Event of
Force Majeure (“Event of Force Majeure”), only within the limitation of
such delay or prevention, the affected party is absolved from any
liability under this Agreement. Force Majeure, which includes acts of
governments, acts of nature, fire, explosion, geographic change, flood,
earthquake, tide, lightning, war, means any unforeseen events beyond the
prevented party’s reasonable control and cannot be prevented with
reasonable care. However, any shortage of credit, capital or finance shall
not be regarded as an event beyond a Party’s
reasonable control. The Party affected by Force Majeure who
claims for exemption from performing any obligations under this Agreement
or under any Article herein shall notify the other party of such exemption
promptly and advice him of the steps to be taken for completion of the
performance.
|
|
11.2
|
The
Pledge affected by Force Majeure shall not assume any liability under this
Agreement. However, subject to the Party affected by Force Majeure having
taken its reasonable and practicable efforts to perform this Agreement,
the Party claiming for exemption of the liabilities may only be exempted
from performing such liability as within limitation of the part
performance delayed or prevented by Force Majeure. Once causes for such
exemption of liabilities are rectified and remedied, both parties agree to
resume performance of this Agreement with their best
efforts.
|
|
12
|
Applicable
Law and Dispute Resolution
|
|
12.1
|
The
execution, validity, performance and interpretation of this Agreement
shall be governed by and construed in accordance with the PRC
law.
|
|
12.2
|
The
parties shall strive to settle any dispute arising from the interpretation
or performance through friendly consultation. In case no settlement can be
reached through consultation, each party can submit such matter to China
International Economic and Trade Arbitration Commission (“CIETAC”) for
arbitration. The arbitration shall follow the current rules of CIETAC, and
the arbitration proceedings shall be conducted in Chinese and shall take
place in Beijing. The arbitration award shall be final and binding upon
the parties.
|
|
12.3
|
Each
Party shall continue performance of this Agreement in good faith according
to the stipulations herein except the matters in
dispute.
|
8
|
13
|
Notice
|
Any
notice or correspondence, which is given by the Party as stipulated hereunder,
shall be in Chinese and English writing and shall be delivered in person or by
registered or prepaid mail or recognized express service, or be transmitted by
telex or facsimile to the following addresses:
|
|
Party
A:
|
KONGZHONG
CHINA CO., LTD.
|
|
|
Address:
|
35
F, Tengda Plaza, No. 168 Xiwai Street, Haidian District, Beijing, 100044,
PRC
|
|
Fax:
|
(00)00-00000000
|
|
Tele:
|
(00)00-00000000
|
|
Addressee:
|
Xxxxxx
XXXX
|
|
|
Party
B:
|
SHANGHAI
DACHENG NETWORK TECHNOLOGY CO.,
LTD.
|
|
|
Address:
|
21-22
F, Shen Building, No. 3553, Zhongshanbeilu, Xxxxx Xxxxxxxx, Xxxxxxxx,
000000
|
|
|
Fax:
|
(+8621)
0000 0000
|
|
|
Tele:
|
(+8621)
6082 5088
|
|
Addressee:
|
Xxxx
XXXX
|
|
|
Party
C:
|
XXXX
XXXX
|
|
|
Address:
|
21-22
F, Shen Building, No. 3553, Zhongshanbeilu, Xxxxx Xxxxxxxx, Xxxxxxxx,
000000
|
|
|
Fax:
|
(+8621)
0000 0000
|
|
|
Tele:
|
(+8621)
6082 5088
|
|
Addressee:
|
Xxxx
XXXX
|
|
|
Party
D:
|
XXXXXX
XXXX
|
|
|
Address:
|
21-22
F, Xxxx Xxxxxxxx, Xx. 0000, Xxxxxxxxxxxxxx, Xxxxx Xxxxxxxx, Xxxxxxxx,
000000
|
|
|
Fax:
|
(+8621)
0000 0000
|
|
|
Tele:
|
(+8621)
6082 5088
|
|
Addressee:
|
Xxxxxx
XXXX
|
|
14
|
Appendices
|
The
appendices to this Agreement are entire and integral part of this
Agreement.
9
|
15
|
Waiver
|
The
Pledgee’s non-exercise or delay in exercise of any rights, remedies, power or
privileges hereunder shall not be deemed as the waiver of such rights, remedies,
power or privileges. Any single or partial exercise of the rights, remedies,
power and privileges shall not exclude the Pledgee from exercising any other
rights, remedies, power and privileges. The rights, remedies, power and
privileges hereunder are accumulative and shall not exclude the application of
any other rights, remedies, power and privileges stipulated by
laws.
|
16
|
Miscellaneous
|
Any
amendments, modifications or supplements to this Agreement shall be in writing
and come into effect upon being executed and sealed by the parties
hereto.
In case
any terms and stipulations in this Agreement is regarded as illegal or can not
be performed in accordance with the applicable law, such terms and stipulations
shall be deemed to lose effect and enforcement within the scope governed by the
applicable law, and the rest stipulations will remain effective.
This
Agreement and all the agreements and/or documents referenced or specifically
included herein constitute the entire agreement among the Parties in respect of
the subject matter hereof and supersede all prior oral or written agreements,
contract, understanding and correspondence among them.
This
Agreement shall be kept in 4
copies.
10
IN
WITNESS WHEREOF the parties hereto have caused this Agreement to be duly
executed on their behalf by a duly authorized representative as of the Effective
Date first written above.
Party
A: KONGZHONG CHINA CO., LTD.
Authorized
Representative:
(Seal)
Party
B: SHANGHAI DACHENG NETWORK TECHNOLOGY CO., LTD.
Authorized
Representative: /s/ Xxxx XXXX
(Seal)
Party
C: XXXX XXXX
Signature:
/s/ Xxxx XXXX
Party
D: XXXXXX XXXX
Signature:
/s/ Xxxxxx XXXX
11
