Exhibit 10.9.1
EQUITY PLEDGE AGREEMENT
This Equity Pledge Agreement (hereinafter referred to as this "Agreement") is
entered into by and between the following parties on June 22, 2007 in Shenzhen:
PLEDGEE:
PARTY A: SHENZHEN NEPSTAR PHARMACEUTICAL CO., LTD.
Registered address: Neptunus Building X-00X, Xxxxxxx Xxxxxxxx,
Xxxxxxxx
PLEDGORS:
PARTY B: SHENZHEN NEPSTAR MANAGEMENT CONSULTING CO., LTD.
Registered address: Neptunus Xxxxxxxx X-00X, Xxxxxx Xxxxxx,
Xxxxxxx Xxxxxxxx, Xxxxxxxx
PARTY C: SHENZHEN NEPSTAR INFORMATION AND TECHNOLOGY SERVICE CO., LTD.
Registered address: Neptunus Xxxxxxxx X-00X, Xxxxxx Xxxxxx,
Xxxxxxx Xxxxxxxx, Xxxxxxxx
(hereinafter, Party B and Party C collectively referred to as "Pledgors")
Whereas:
1. Party A is a limited liability company incorporated and registered in
Shenzhen in accordance with law of People's Republic of China ("PRC") to
engage in pharmaceutical wholesale, computer network technology development
and technology consulting and service in accordance with law as approved by
relevant PRC governmental authorities.
2. Party A entered into a Loan Agreement with Party B and Party C on June 13,
2007, according to which Party A, through Shenzhen Bagualing Branch of
Industrial Bank Co., Ltd., extends a loan with an aggregate amount of
Renminbi 36,000,000 to Party B and Party C.
3. Party A entered into Supply Agreement, Trade Name License Agreement and
Logistics Service and Information Technology Support Agreement with each
Regional chain company on April 28, 2007.
Therefore, to guarantee the repayment by the Pledgors of the loan under the Loan
Agreement and ensure each regional chain company of which the Pledgors are
shareholders to perform its obligation under the Supply Agreement, Trade Name
License Agreement and Logistics Service and Information Technology Support
Agreement, through friendly discussion, the Pledgee and the Pledgors enter into
this Agreement in accordance with the following provisions.
1. DEFINITIONS
Unless otherwise provided by this Agreement, the following terms shall have
the following meaning:
1.1 "Pledge Right" means the whole content as set forth in Article 2
hereof.
1.2 "Equity" means all equity interest legally held by each Pledgor in
each Regional Chain Company. For the specific equity proportion,
please refer to Annex I of this Agreement.
1.3 "Shareholders of Pledgors": Tu Feng and Xxxx Xxxxxx, who hold 100%
equity interest in Party B and Party C respectively.
1.4 "Regional Chain Companies" means the limited liability companies
jointly owned by the Pledgee and the Pledgors engaging in
pharmaceutical wholesale and resale inside China as set forth in Annex
I hereof.
1.5 "Term of Pledge" means the period provided in Article 3.2 hereof.
1.6 "Principal Agreements" means the Loan Agreement, Supply Agreement,
Trade Name License Agreement and Logistics Service and Information
Technology Support Agreement.
1.7 "Breach Event" means any event as set forth in Article 7.1 hereof.
1.8 "Breach Notice" means the notice sent by the Pledgee to notify
existence of any Breach Event in accordance with this Agreement.
2. PLEDGE
Pledgor pledge all of their Equity in each regional chain company to the
Pledgee as security for (i) all their debts under the Loan Agreement and
(ii) all debts of the regional Chain companies under the Supply Agreement,
Trade Name License Agreement and Logistics Service and Information
Technology Support Agreement. The Pledge of Equity refers to the right of
the Pledgee to get preferential repayment with the value of Equity directly
or from the proceeds from auction or sale of the Equity pledged by the
Pledgors to the Pledgee.
3. SCOPE OF SECURITY AND TERM OF PLEDGE
3.1 Scope of Security
The scope of security is all debts of each Pledgor under the Loan
Agreement and/or all debts of each regional chain company under other
Principal Agreements, including without limitation, the principal and
interest (if any) of the loan, all payables, liquidated damage, all
losses incurred by the Pledgee due to breach of the Pledgors and/or
Regional Chain Companies and all expenses arising in exercise of
Pledge Right by the Pledgee.
3.2 Term of Pledge
3.2.1 The Pledge under this Agreement shall become effective on the
date when the pledge is recorded on the shareholders list of
each regional chain company and the term will end two (2) years
after the performing period of all debts under each of the
Principal Agreements expires. Meanwhile, each party shall make
its best effort to assist the registration of the pledge with
relevant industry and commerce administration authorities of the
regional Nepstar companies.
3.2.2 During the term of pledge, if Pledgors fail to perform their
obligations under the Loan Agreement or any of the regional
Nepstar companies fails to perform its contractual obligation
under the Supply Agreement, Trade Name License Agreement and/or
Logistics Service and Information Technology Support Agreement,
the Pledgee shall have the right to dispose of the Pledge in
accordance with this Agreement.
4. REGISTRATION OF PLEDGE RIGHT
4.1 In five (5) working days after the execution of this Agreement, the
Pledgors and the Pledgee shall assist the regional Nepstar companies
in recording the pledge hereunder onto shareholder list of each
regional chain company and meanwhile go through pledge registration
procedures with competent industry and commerce administration
authority of the corresponding regional chain company (if
practicable).
5. REPRESENTATION AND WARRANTY OF THE PLEDGORS
5.1 The Pledgors are limited liability companies legally established and
effectively existing under PRC law.
5.2 The Pledgors have all corporate right and authority to execute,
deliver and implement this Agreement. The execution, delivery and
implementation have been properly authorized by corporate power bodies
of the Pledgors.
5.3 The Pledgors are the legal holder of the Equity.
5.4 Except the Pledge created hereunder for the benefit of the Pledgee,
the Pledgors have not created any other pledge or other encumbrances
on the Equity.
6. UNDERTAKINGS OF THE PLEDGORS
6.1 During the term of this Agreement, the Pledgors undertake to the
Pledgee for the benefit of the Pledgee:
6.1.1 that the Pledgors will maintain legal existence of the Pledgors
and without prior written consent of the Pledgee, neither
dissolve, liquidate, suspend, cease operation nor cancel
registration;
6.1.2 that other than holding equity interest in the Regional Chain
Companies, without prior written consent of the Pledgee, the
Pledgors neither engage in any lending, operation and/or
investment activity nor make any increase or decrease of
registered capital;
6.1.3 that without prior written consent of the Pledgee, the Pledgors
may not transfer the Equity, nor create or permit any pledge on
the Equity that may affect the right and interest of the
Pledgee;
6.1.4 that the Pledgors shall first deposit any income from the
regional Nepstar companies (including dividends distributed to
the Equity) into designated account as security fund for the
loan and may not distribute such income without written consent
of the Pledgee. Upon request of the Pledgee, such income shall
first be paid to the Pledgee as repayment of the loan;
6.1.5 that the Pledgee has the right, as it considers to be necessary,
to request the Shareholders of Pledgors to transfer all or part
of their equity in the Pledgors to any third party designated by
the Pledgee which satisfies the requirements of PRC laws and
regulations. The price of such equity transfer shall be equal to
the amount of registered capital represented by such equity,
unless the applicable PRC laws and regulations require
evaluation of the equity or have other restriction towards the
price. If the PRC laws and regulations applicable at the time
when the Pledgee raises such equity transfer request in
accordance with this Article require evaluation of the equity or
impose other restriction on the price, the parties agree that
the price for the equity to be transferred shall be the lowest
as permitted by applicable law. When the Pledgee raises such
equity transfer request in accordance with this Article, the
Pledgors shall assist the Shareholders of Pledgors to transfer
their equity in the Pledgors, execute relevant documents and
satisfy relevant procedures of equity transfer. The price for
the equity sold by the Shareholders of Pledgors under this
Article shall first be deposited into designated account as
security fund for the loan and may not be used without written
consent of the Pledgee. Upon request of the Pledgee, such price
of equity transferred may first be used to repay the loan of the
Pledgors under the Loan Agreement;
6.1.6 that to the extent as permitted by PRC law, the Pledgee has the
right to request the Pledgors to sell all or part of their
Equity to the Pledgee or any third party designated by the
Pledgee which satisfies the requirements of PRC law. The price
for the Equity transferred shall be equal to the purchase price
initially paid by the Pledgors, unless the applicable PRC laws
and regulations require evaluation of the equity interest or
impose other restrictions on the price. If the PRC laws and
regulations, applicable at the time when the Pledgee raises the
request of Equity transfer, require evaluation of the equity
interest or impose other restrictions on the price, the parties
agree that the price for the equity interest to be transferred
shall be the lowest as permitted by applicable law. When the
Pledgee raises such Equity transfer request in accordance with
this article, the Pledgors shall transfer such Equity, execute
relevant documents and assist in satisfying relevant procedures
for such Equity transfer according to the request of the
Pledgees. The price for sale of such Equity of the Pledgors
shall be first used to repay to the Pledgee the loan under the
Loan Agreement;
6.1.7 that if any regional chain company is liquidated, the Pledgors
shall sell their asset distributed from such regional chain
company in liquidation to the Pledgee in the price no higher
than the purchase price for their equity in such regional chain
company, to offset debt of the Pledgors under the Loan Agreement
at the same amount. If the asset distributed is cash, the
Pledgors shall first use such cash to repay the their debt under
the Loan Agreement;
6.1.8 that the Pledgors shall grant all voting rights in the
shareholders' meeting of each regional chain company to the
Pledgee. Meanwhile, the Pledgors shall grant all voting rights
of the directors appointed by them in each to the directors
appointed by the Pledgee in each regional chain company.
6.1.9 that the Pledgors will comply with and implement all provisions
of laws and regulations concerning pledge on right, when
receiving any notice,
order or advice from relevant supervising authorities in
connection with the Pledge Right, show such notice, order or
advice in five (5) days to the Pledgee and comply with such
notice, order or advice, or present objection and
representation with respect to above matter upon reasonable
request of the Pledgee or under consent of the Pledgee; and
6.1.10 that the Pledgors will promptly notify the Pledgee of any event
or notice received that may affect the Pledgors' Equity or any
part of rights, as well as any event or notice received that
may change or affect any warranty or obligation of the Pledgors
under this Agreement.
6.2 The Pledgors agree that the right of the Pledgee to exercise the
rights as a pledgee in accordance with this Agreement shall not be
interrupted or deterred by the Pledgors or any successor or consigner
of the Pledgors or any other preson through legal proceedings.
6.3 The Pledgors undertake to the Pledgee that to protect or perfect
security under this Agreement for repayment of loan and performance of
obligations under the Principal Agreements, the Pledgors will
faithfully enter into and cause other parties involved in connection
with the Pledge Right to enter into all right certificates and
covenants required by the Pledgee and/or take and cause other parties
involved to take actions required by the Pledgee and provide
convenience for the Pledgee to exercise its rights and authorities
granted by this Agreement.
6.4 The Pledgors undertake to the Pledgee that for the benefit of the
Pledgee, the Pledgors will comply with and implement all warranties,
undertakings, agreements, representations and conditions. In case that
either Pledgor fails to implement or fails to fully implement any of
its warranties, undertakings, agreements, representations and
conditions, such Pledgor shall indemnify all losses caused to the
Pledgee.
7. BREACH EVENT
7.1 The following events shall be deemed as Breach Events:
7.1.1 that the Pledgors fail to perform all or part of their
obligations under the Loan Agreement;
7.1.2 that any regional chain company fails to or refuses to perform
all or party of its obligations under the Product Supply
Agreement, Trade Name License Agreement and/or Logistics Service
and IT Support Agreement in accordance with such agreements;
7.1.3 that there is material misleading information or mistake with
any representation or warranty of the Pledgors under Article 5
of this Agreement and/or that either Pledgor is in breach of any
warranty under Article 5 of this Agreement;
7.1.4 that either Pledgor is in breach of any undertakings under
Article 6 of this Agreement;
7.1.5 that either Pledgor is in breach of any other provision of this
Agreement;
7.1.6 that the Pledgors waive the Equity pledged or transfer the
Equity pledged without written consent of the Pledgee;
7.1.7 that any external borrowing, security, compensation, undertaking
or other repayment liability of either Pledgor (i) is required
to be repaid or performed ahead of expiry due to breach of
contract; or (ii) has been due but cannot be repaid or performed
as scheduled which make the Pledgee consider that the ability of
such Pledgor to perform its obligation hereunder has been
affected;
7.1.8 that this Agreement is held to be illegal or either Pledgor is
unable to continue with performance of its obligations hereunder
due to any reason other than force majeure; or
7.1.9 that there is adverse change with property of either Pledgor
which make the Pledgee consider that the ability of such Pledgor
to perform its obligation hereunder has been affected.
7.2 When knowing or discovering existence of any event set forth in
Article 7.1 or occurrence of any event that may result in any of the
above events, the Pledgors shall notify the Pledgee in writing
immediately.
7.3 Unless the Breach Events set forth in Article 7.1 has been resolved to
the satisfaction of the Pledgee, the Pledgee may provide the Pledgors
a Breach Notice in writing at any time when or after such Breach Event
occurs, requiring the Pledgors to repay the amount payable under the
Loan Agreement and the Regional Chain Companies to pay any amount
payable under the Product Supply Agreement, Trade Name License
Agreement and Logistics Service and IT Support Agreement and perform
obligations under such Agreements, or may dispose of the Pledge Right
in accordance with Article 8 hereof.
8. EXERCISE OF PLEDGE RIGHT
8.1 To exercise the Pledge Right, the Pledgee shall provide the Pledgors a
Breach Notice.
8.2 Subject to Article 7.3 hereof, the Pledgee may dispose of the Pledge
Right at the same time as or at any time after sending the Breach
Notice according to Article 7.3.
8.3 The Pledgee shall be entitled to convert all or part of the Equity
hereunder into money (the converted price shall not be higher than the
purchase price paid by the Pledgors to obtain such Equity) to offset
the debts or get repayment with priority from the proceeds of auction
or sale of such Equity through legal procedures, until the fees unpaid
by the Regional Chain Companies under the Product Supply Agreement,
Trade Name License Agreement and Logistics Service and IT Support
Agreement and the loan of the Pledgors under the Loan Agreement and
any other payable amounts have been paid up.
8.4 When the Pledgee dispose of its Pledge Right in accordance with this
Agreement, the Pledors shall not make any hindrance but shall provide
assistance as necessary to ensure the Pledgee's implementation of its
Pledge Right.
9. ASSIGNMENT OF AGREEMENT
9.1 Without prior written consent of the Pledgee, the Pledgors have no
right to confer or transfer any part or all of their rights and
obligations hereunder.
9.2 This Agreement is binding on the Pledgors and their respective
successors or inheritors and is valid to the Pledgee and each
successor, inheritor or assignee as permitted by the Pledgee.
9.3 The Pledgee may, at any time, subject to the permission of laws,
transfer all or any of its rights or obligations under the Loan
Agreement, Product Supply Agreement, Trade Name License Agreement and
Logistics Service and IT Support Agreement to any person (natural
person/legal person) designated by it. In such case, the assignee
shall have and assume the rights and obligations of the Pledgee under
this Agreement as it is a party hereto. To transfer its rights and
obligations under the Loan Agreement, Product Supply Agreement, Trade
Name License Agreement and Logistics Service and IT Support Agreement,
the Pledgee will only need to provide the Pledgors a written notice
and the Pledgors shall enter into agreements and/or documents relevant
with such assignment as required by the Pledgee.
9.4 In case of change of the Pledgee due to assignment, the new parties to
the pledge shall enter into a new pledge agreement.
10. EFFECTIVENESS
This Agreement is executed on the date as set forth above and becomes
effective on the date when the authorized representatives of the parties
sign on this Agreement respectively. This Agreement shall be binding on the
Parties once upon effectiveness.
11. TERMINATION
11.1 After the loan under the Loan Agreement and relevant amounts under the
Product Supply Agreement, Trade Name License Agreement and Logistics
Service and IT Support Agreement have been paid up and the Pledgors
have no more obligation under the Loan Agreement and the Regional
Chain Companies have no more obligation under the Product Supply
Agreement, Trade Name License Agreement and Logistics Service and IT
Support Agreement, this Agreement shall terminate and the Pledgee
shall cancel or terminate this Agreement within the earliest
reasonable practicable time.
11.2 After this Agreement terminates, the rights and obligations of the
parties under Article 14 and 15 hereunder shall continue to be
effective.
12. COMMISSION AND OTHER EXPENSES
12.1 All fees and out-of-pocket expenses related to this Agreement,
including without limitation, legal expenses, document costs, stamp
tax and any other taxes and expenses shall all be born by the Pledgee.
If it is required by law for the Pledgors to pay relevant taxes and
fees, the Pledgee shall fully reimburse Pledgors all taxes and fees
paid.
13. FORCE MAJEURE
13.1 "Force Majeure" means any event that is beyond reasonable control of
one party and is not avoidable even under reasonable attention of the
affected party, including without limitation, governmental act,
natural power, fire, explosion, storm, flood, earthquake, tide,
lightening and war, provided that, the deficiency of credit, capital
or fund-raising shall not be deemed as an event out of reasonable
control of one party. The party affected by Force Majeure shall notify
such exemption event to the other party.
13.2 In the event of delay or suspension of implementation of this
Agreement due to any Force Majeure as defined above, the party
affected by such Force Majeure will not be required to assume any
liability under this Agreement in the extent of delay or suspension.
The affected party shall take appropriate
measures to diminish or eliminate the influence of such Force Majeure
and shall try to resume with performance of obligation delayed or
suspended by such Force Majeure. Upon elimination of Force Majeure,
the parties agree to resume performance under this Agreement at its
best effort.
14. CONFIDENTIAL RESPONSIBILITY
The parties to this Agreement acknowledge and confirm that any oral or
written materials exchanged with each other concerning this Agreement are
confidential. All parties shall keep all of such materials in
confidentiality and may not disclose to any third party any relevant
material without written consent of the other parties, except (a) materials
that have been or will be known by the public (only if it is not disclosed
by the receiving party to the public without permission); (b) materials
disclosed as required by applicable law or rules or regulations of any
stock exchange; or (c) materials disclosed to the legal or financial
advisor of any party in connection with the transaction as involved herein,
provided that such legal or financial advisor shall assume similar
confidential responsibility as that under this provision. The disclosure by
any employee or engaged entity of either party will be deemed as disclosure
of such party and such party shall be liable for its breach in accordance
with this Agreement.
15. RESOLUTION OF DISPUTE
15.1 This Agreement shall be governed by and interpreted according to PRC
law.
15.2 In event of any dispute arising among the parties concerning the
interpretation and implementation of any provision under this
Agreement, the parties shall resolve such dispute through discussion
in good faith. In case of failure to discuss, any party may submit
relevant dispute to China International Economic and Trade Arbitration
Commission for arbitration in accordance with its then valid
arbitration rules. The place of arbitration shall be Shenzhen and the
language to be used in such arbitration shall be Chinese. The
arbitration award shall be final and binding on the parties.
16. NOTICE
Any notice sent by any party hereto for exercise or performance of its
right or obligation under this Agreement shall be made in writing. In case
of personal delivery, the notice will deemed to be delivered at the time
when delivered; in case of tele-fax or facsimile, at the time of
transmission. If the delivery date is not a business day or the delivery is
made after business time, the next following business day of such date will
be the delivery date. The delivery place refers to the addresses of the
parties hereto on the first page of this Agreement or other addresses
notified at any time in writing. In writing includes in facsimile and
telefax.
17. ENTIRENESS OF AGREEMENT
The parties confirm that upon effectiveness, this Agreement constitutes the
entire agreement and understanding of the parties hereto with respect to
the subject matter of this Agreement and completely supersedes all prior
oral or/and written agreement and understanding among the parties before
this Agreement with respect to the subject matter hereof.
18. SEVERALTY OF AGREEMENT
If any provision under this Agreement is held to be invalid or
unenforceable due to conflict with relevant law, then such provision shall
be deemed to be invalid only in the extent of jurisdiction of relevant law
and may not affect the legal effect of other provisions hereof.
19. ANNEX OF AGREEMENT
The annex attached to this Agreement is an indivisible part of the
Agreement.
20. AMENDMENT AND SUPPLEMENT TO AGREEMENT
20.1 The parties may make amendment and supplement to this Agreement
through written agreement. With appropriate signature of the parties,
such amendment agreement and supplementary agreement related to this
Agreement shall be a component part of this Agreement. In case that
there is any conflict between any amendment agreement or supplementary
agreement entered into by the parties after this Agreement and this
Agreement, such amendment agreement or supplementary agreement made
later shall prevail.
20.2 This Agreement as well as any amendment, supplement or modification
hereto shall be made in writing and shall become effective after
signed and sealed by the parties.
21. COPIES OF AGREEMENT
This Agreement is made in Chinese with six originals, of which one shall be
kept by each of Party A, Party B and Party C, the rest shall be used for
registration and filing. Each original shall have equal legal effect.
IN WITNESS WHEREOF, the parties have caused their respective legal
representative or authorized representative to sign on this Agreement on the
date set forth above as proof of credit.
PLEDGEE: SHENZHEN NEPSTAR PHARMACEUTICAL CO., LTD.
Legal Representative/ authorized representative: /s/ Xxxxx Xxxxx
Seal: /s/ Shenzhen Nepstar Pharmaceutical Co., Ltd.
PLEDGOR: SHENZHEN NEPSTAR MANAGEMENT CONSULTING CO., LTD.
Legal Representative/ authorized representative: /s/ Feng Tu
Seal: /s/ Shenzhen Nepstar Management Consulting Co., Ltd.
PLEDGOR: SHENZHEN NEPSTAR INFORMATION AND TECHNOLOGY SERVICE CO., LTD.
Legal Representative/ authorized representative: /s/ Xxxxxx Xxxx
Seal: /s/ Shenzhen Nepstar Information and Technology Service Co., Ltd.
ANNEX I
EQUITY PLEDGED BY THE PLEDGORS UNDER THIS AGREEMENT
Shenzhen Nepstar Management Consulting Co., Ltd. pledges:
10% of the shares in Shenzhen Nepstar Chain Co., Ltd.
16% of the shares in Guangzhou Nepstar Chain Co., Ltd.
16% of the shares in Jiangsu Nepstar Chain Co., Ltd.
2.5% of the shares in Shandong Nepstar Chain Co., Ltd.
16% of the shares in Shanghai Nepstar Chain Co., Ltd.
16% of the shares in Sichuan Nepstar Chain Co., Ltd.
16% of the shares in Hangzhou Nepstar Chain Co., Ltd.
16% of the shares in Ningbo Nepstar Chain Co., Ltd.
20% of the shares in Tianjin Nepstar Chain Co., Ltd.
20% of the shares in Qingdao Nepstar Chain Co., Ltd.
Shenzhen Nepstar Information and Technology Service Co., Ltd. pledges:
41% of the shares in Shenzhen Nepstar Chain Co., Ltd.
35% of the shares in Guangzhou Nepstar Chain Co., Ltd.
35% of the shares in Jiangsu Nepstar Chain Co., Ltd.
48.5% of the shares in Shandong Nepstar Chain Co., Ltd.
35% of the shares in Shanghai Nepstar Chain Co., Ltd.
35% of the shares in Sichuan Nepstar Chain Co., Ltd.
35% of the shares in Hangzhou Nepstar Chain Co., Ltd.
35% of the shares in Ningbo Nepstar Chain Co., Ltd.
31% of the shares in Tianjin Nepstar Chain Co., Ltd.
31% of the shares in Qingdao Nepstar Chain Co., Ltd.
