EQUITY PLEDGE AGREEMENT AMONG KEN JIAN XIAO, XIONGFEI LIU HUIYOU DIGITAL (SHENZHEN) LTD AND SHENZHEN LANYUE INTERNET TECHNOLOGY CO., LTD. EXECUTED IN SHENZHEN ON 16 SEPTEMBER 2013
Exhibit 4.26
English Translation
AMONG
XXX XXXX XXXX, XXXXXXXX XXX
HUIYOU DIGITAL (SHENZHEN) LTD
AND
SHENZHEN LANYUE INTERNET TECHNOLOGY CO., LTD.
EXECUTED IN SHENZHEN ON 16 SEPTEMBER 2013
This Equity Pledge Agreement (“this Agreement”) is entered into by and between the following parties (“Parties”) on 16 September 2013 in Shenzhen, the People’s Republic of China (“China”):
Party A: Huiyou Digital (Shenzhen) Ltd, (“Huiyou”)
Address: 00x, 00xx Xxxxx, X Xxxxx, Xxxxxx Xxxxxx Xuesong Building, Tairan Industry Park, Futian District, Shenzhen;
Legal Representative: Xxx Xxxx Xxxx
Party B: Xxx Xxxx Xxxx, a citizen of China, identity card no.: 44020319791020206133;
Party C: Xxxxxxxx Xxx, a citizen of China, identity card no.: 000000000000000000;
Party D: Shenzhen Lanyue Internet Technology Co., Ltd., (“Lanyue”)
Address at 1085-1086, Shangshuyuan Commerce Podium Building, Meilin Road, Meilin Sub-district, Futian District, Shenzhen
Legal Representative: Xxx Xxxx Xxxx
Whereas
| 1. | Party A is a wholly owned foreign enterprise registered and incorporated in the PRC; |
| 2. | Party D is a domestic company with limited liability duly organized and existing under the laws of China. It is currently applying for (i) the Value-added Telecom Service Operation License, (ii) the Internet Publication Permit, and (iii) the Network Culture Operation License (collectively, the “Qualifications for Operating Mobile Online Games”). Upon obtaining the Qualifications for Operating Mobile Online Games, Party D will engage in the value-added telecom service as well as the development and operation of mobile games and online games. |
| 3. | Party A, Party B and Party C have entered into an Exclusive Technology and Market Promotion Services Agreement, a Voting Proxy Agreement, a Loan Agreement and an Option Agreement (hereinafter together with this Agreement referred to as “Restructuring Agreements”) with Lanyue; |
| 4. | Party B and Party C (collectively referred to as “Pledgors” and each a “Pledgor”) are shareholders of Lanyue, of which, Party B holds 99% of the equity shares and Party C holds 1% of the equity shares in Lanyue; |
| 5. | In order to guarantee the normal collection of service fees under the Exclusive Technology and Market Promotion Services Agreement by Party A from Lanyue, which is owned by the Pledgors, and to guarantee the overall performance from the Pledgors and Lanyue of their respective obligations under the Restructuring Agreements (including but not limited to the repayment obligations of the Pledgors under the Loan Agreement), the Pledgors jointly and severally pledge all of their share equities in Lanyue (totaling 100% of the equity shares of Lanyue) as security for the foregoing service fees and other rights and interests of Party A under the Restructuring Agreements, and Party A as the Pledgee. |
Now, therefore, through friendly consultation and based on the principle of equality and mutual benefits, the Parties hereby reach the following agreement for mutual compliance:
| 1 | Definition |
Unless otherwise provided by this Agreement, the following terms shall be interpreted as follows:
“Right of Pledge” shall refer to the whole provisions as set out in Clause 2 hereof.
“Equity Shares” shall refer to 100% of the equity shares of Lanyue, which are jointly and legally held by the Pledgor and all current and future rights and interests attributable to such equity shares.
“Event of Default” shall refer to any of the circumstances as set out in Clause 7 hereof.
“Default Notice” shall refer to the notice issued by the Parties to announce the occurrence of Event of Default.
| 2 | Pledge |
The Pledgors shall pledge all the Shares Equities to Party A as security for all the rights and interests of Party A under the Restructuring Agreements.
The security provided by the equity pledge under this Agreement shall cover all fees payable by Lanyue and the Pledgors to Party A under the Restructuring Agreements (including legal fees), all expenses, losses, interests, liquidated damages, compensations and costs incurred to realize creditor’s rights for which Lanyue and the Pledgors shall be liable, and all liabilities assumed by Lanyue and the Pledgors for Party A in the event any of the Restructuring Agreements fails to be implemented due to any reason.
The right of pledge under this Agreement shall refer to the rights owned by Party A to have the priority over repayment with the proceeds obtained from selling at a discount or by auction or selling off the Equity Shares pledged to Party A by the Pledgors.
Unless otherwise agreed by Party A in writing after the execution of this Agreement, subject to Party A’s written consent, the pledge under this Agreement shall only be released when Lanyue and the Pledgors have duly performed all of their obligations and responsibilities under the Restructuring Agreements or Party A has obtained all the Equity Shares. If Lanyue and/or the Pledgors fail to fully perform all or any part of their obligations or responsibilities under such Restructuring Agreements upon the expiry of such term as provided by the Restructuring Agreements, Party A shall retain the right of pledge provided by this Agreement until when the foregoing relevant obligations and responsibilities are fully performed.
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| 3 | Effectiveness |
| 3.1 | This Agreement shall take effect as of the date hereof, i.e.1 September 2013. The Right of Pledge shall be established and take effect after the equity pledge under this Agreement has been registered in the share register of Lanyue (including both the original and the copy) and Lanyue has registered the share pledge with the Administration for Industry and Commerce. |
| 3.2 | The copy of Lanyue’s share register with registration of the pledge matters under this Agreement and affixed with Lanyue’s official seal shall be delivered to Party A for record. |
| 3.3 | During the term of pledge provided by this Agreement, if Lanyue fails to pay service fees in accordance with the Exclusive Technology and Market Promotion Services Agreement, or fails to implement the Restructuring Agreements, Party A shall be entitled to exercise the Right of Pledge in accordance with the provisions of this Agreement. |
| 4 | Maintenance and Registration |
| 4.1 | During the term of pledge provided by this Agreement, the Pledgors shall deliver their respective capital contribution certificates in respect of their share equities in Lanyue (originals) to Party A for custody. The Pledgors shall deliver such capital contribution certificates (originals) to Party A within seven (7) days from the date of this Agreement and provide Party A with the certificate evidencing the pledge under this Agreement being duly registered in the share register. |
| 4.2 | Unless agreed by Party A in writing, during the term of this Agreement, all proceeds generated from the Equity Shares (if any, including but not limited to any dividends, profits) and received by the Pledgors will also be treated as security provided for the debts owed by Lanyue pursuant to this Agreement. The Pledgors must ensure that Lanyue will complete registration of the equity pledge under this Agreement in accordance with the requirements for a domestic limited liability company with the Guangzhou Administration for Industry and Commerce within ten (10) working days from the date of this Agreement. |
| 5 | Representations and Warranties of Pledgor |
The Pledgors shall make the following representations and warranties to Party A upon signing of this Agreement and confirm that Party A has signed and implemented this Agreement in reliance of such representations and warranties:
| 5.1 | The Pledgor legally holds the Equity Shares and has the right to provide security with such Equity Shares for Party A. |
| 5.2 | Once the board of directors of Party A exercises Party A’s rights stipulated under this Agreement at any time, there will be no obstructions from any other parties. |
| 5.3 | Party A has the right to exercise the Right of Pledge in such a way as provided by law and/or this Agreement. |
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| 5.4 | The Pledgor has all the necessary competence to execute this Agreement and perform its obligations under this Agreement and has not violated any provisions of applicable laws and regulations. |
| 5.5 | Save and except the pledge under this Agreement, no encumbrances have been created over the Equity Shares held by the Pledgors (including but not limited to pledge). |
| 5.6 | On the date of this Agreement, there area no pending civil, administrative or criminal litigations, administrative penalties or arbitrations in relation to the Equity Shares, and to the reasonable judgment of the Pledgors, there will be no potential civil, administrative or criminal litigations, administrative penalties or arbitrations in relation to the Equity Shares. |
| 5.7 | There are no payable but unpaid taxes and fees, or to be completed but uncompleted legal proceedings or formalities in relation to the Equity Shares on the date of this Agreement. |
| 5.8 | All the terms of this Agreement are reached by its true intention and shall be legally binding. |
| 5.9 | Lanyue has maintained one (1) original and one (1) copy of the share register. The original share register shall be maintained by Lanyue and the copy shall be delivered to Party A for record after completion of the registration of the equity pledge. Lanyue guarantees that there are no discrepancies between the original and the copy of the share register, the registered matters are complete, true and accurate and consistent with the shareholder’s names registered with the Administration for Industry and Commerce. |
| 5.10 | Lanyue will complete registration of the equity pledge under this Agreement in accordance with the requirement for a domestic limited liability company with the Guangzhou Administration for Industry and Commerce within ten (10) working days from the date of this Agreement. |
| 6 | Undertakings of Pledgor |
| 6.1 | During the term of this Agreement, the Pledgor undertakes to Party A that: |
| 6.1.1 | unless required by Party A to transfer the Equity Shares to Party A or other person designated by Party A, without Party A’s prior written consent, it shall not transfer or grant share equities to other third parties, nor shall it impose or allow any pledge or other encumbrances that may prejudice Party A’s rights and interests; |
| 6.1.2 | it will observe and implement all the provisions of relevant applicable laws and regulations and, within five (5) working days after receiving the notice, order or suggestions issued or made by the relevant competent authorities, it will present such notice, order or suggestions to Party A and act in accordance with Party A’s reasonable instructions; |
| 6.1.3 | it will notify Party A with any event or notice received that may have effect on the Pledgor’s Equity Shares or any part of its rights, and that may alter any obligations of the Pledgor under this Agreement or may have effect on the performance of obligations under this Agreement by the Pledgor, and act in accordance with Party A’s instructions; and |
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| 6.1.4 | without Party A’s written consent, it will not amend and/or duplicate the original share register of Lanyue after the copy of the original share register has been delivered to Party A. |
| 6.2 | The Pledgor agrees that Party A’s exercise of its rights in accordance with the terms of this Agreement shall not be interrupted or jeopardized by the Pledgor or the successor or assignee of the Pledgor or any other person. |
| 6.3 | The Pledgor undertakes to Party A that in order to protect and/or improve the security provided by this Agreement for the repayment of service fees under the Exclusive Technology and Market Promotion Services Agreement and the implementation of the Restructuring Agreements, the Pledgor will execute in good faith and procure other parties having interests with the right of pledge to execute all the certificates of right and deeds required by Party A and/or take or procure other interested parties to take actions required by Party A, and will provide facility for Party A to exercise its Right of Pledge, execute all amendments in relation to share certificate with Party A or any third-party designated by Party A and provide Party A with all the documents in relation to the Right of Pledge required by Party A within a reasonable period of time. |
| 6.4 | The Pledgor undertakes to Party A that in order to protect Party A’s interest, the Pledgor will comply with and perform all the undertakings, warranties agreements and representations, or the Pledgor shall indemnify Party A for any loss arising therefrom. |
| 7 | Events of Default |
| 7.1 | The following matters shall be deemed as material Events of Default: |
| 7.1.1 | Lanyue or its successor or assignee fails to make a full payment of service fees under the Exclusive Technology and Market Promotion Services Agreement on time, or the Pledgor, Lanyue or its successor or assignee fails to implement the Restructuring Agreements; |
| 7.1.2 | There are materially misleading or mistakes in any representations, warranties or undertakings made by the Pledgor under Clause 5 and 6 hereof, and/or the Pledgor breaches the representations, warranties or undertakings under Clause 5 and 6 hereof; |
| 7.1.3 | The Pledgor seriously breaches any terms of this Agreement and thereafter prejudice Party A’s interests; |
| 7.1.4 | Other than in accordance with the provisions of Clause 6.1.1 hereof, the Pledgor foregoes the pledged Equity Shares or unilaterally transfers or grants the pledged Equity Shares without Party A’s written consent; |
| 7.1.5 | Any of the Pledgor’s own external loans, guarantees, compensations, undertakings or other liabilities for indebtedness are required for early repayment or performance due to any breach of contract or become due but unable to be repaid or performed on time, which leads to Party A deeming that the ability of the Pledgor to perform the obligations under this Agreement has been affected and thereafter the interests of Party A have been affected; |
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| 7.1.6 | Promulgation of relevant laws which renders this Agreement illegal or the Pledgor becomes unable to continue performing the obligations under this Agreement; |
| 7.1.7 | If any necessary governmental consents, licenses, approvals or authorizations to make this Agreement enforceable, legal or valid are withdrawn, suspended, invalid or subject to material changes; |
| 7.1.8 | There are adverse changes to the properties owned by the Pledgor, which leads to Party A deeming that the ability of the Pledgor to perform the obligations under this Agreement has been affected; |
| 7.1.9 | Other circumstances as provided by the relevant laws in which Party A may not exercise the Right of Pledge. |
| 7.2 | If the Pledgor is aware or discovers that any matters as set out in the above Clause 7.1 or events that may lead to the above matters have occurred, the Pledgor shall promptly notify Party A with the same in writing. |
| 7.3 | Unless the material Events of Default as set out in Clause 7.1 have been fully resolved to Party A’s satisfaction, Party A may send a written Default Notice to the Pledgor at any time upon or after the occurrence of such Event of Default, requesting the Pledgor to promptly pay all the arrears and other payable amounts under the Exclusive Technology and Market Promotion Services Agreement, or timely implement other Restructuring Agreements, or exercising the Right of Pledge in accordance with the provisions of Clause 8 hereof. |
| 8 | Exercise of the Right of Pledge |
| 8.1 | Prior to the full payment of service fees under the Exclusive Technology and Market Promotion Services Agreement and the full performance of other Restructuring Agreements, and in the absence of Party A’s written consent, the Pledgor shall not transfer the Equity Shares. |
| 8.2 | Party A shall issue a Default Notice to the Pledgor upon exercising of the Right of Pledge. |
| 8.3 | Subject to Clause 7.3, Party A may exercise the Right of Pledge upon, or at any time after, issuing of the Default Notice to the Pledgor. |
| 8.4 | Party A shall be entitled to have a priority over repayment with the proceeds obtained from selling at a discount or by auction or selling off the Equity Shares in accordance with the legal process to such an extent that all the unpaid service fees under the Exclusive Technology and Market Promotion Services Agreement and all other payable amounts are paid off and that the other Restructuring Agreements are fully performed. |
| 8.5 | When Party A exercises the Right of Pledge in accordance with this Agreement, the Pledgor shall not impose any obstructions and shall provide all necessary assistance required to realize Party A’s Right of Pledge. |
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| 9 | Transfer |
| 9.1 | Unless agreed by Party A in advance, the Pledgor has no right to transfer any of its rights and/or obligations under this Agreement to a third-party. |
| 9.2 | This Agreement shall be binding upon both the Pledgor and its successor, and shall be effective to both Party A and its successor or assignee. |
| 9.3 | Party A may transfer all or any of its rights and obligations under the Restructuring Agreements to any third-party designated by it at any time. In such case, the transferee shall enjoy and assume the rights and obligations which are enjoyed and assumed by Party A under this Agreement. When Party A transfers its rights and obligations under the Restructuring Agreements, at Party A’s request, the Pledgor shall execute the relevant agreement and/or document in relation to such transfer. |
| 9.4 | Following the change of pledgee as a result of transfer, the Pledgor shall be obliged to re-enter into such equity pledge agreement in accordance with the requirements of the new pledgee, and to re-register the pledgor in the share register of Lanyue and complete the re-registration of the equity pledge in accordance with the requirements for a domestic limited liability company with Guangzhou Administration for Industry and Commerce. |
| 10 | Fees and Other Costs |
| 10.1 | All costs and actual expenses in relation to this Agreement (including but not limited to legal fees, documentation costs, stamp duties and any other taxes, costs) shall be wholly borne by Party A. |
| 11 | Force Majeure |
| 11.1 | If the performance of this Agreement is delayed or prevented due to any “Force Majeure Event,” the party affected by such Force Majeure Event shall take no liabilities under this Agreement for such portion of delayed or prevented performance. “Force Majeure Event” shall refer to any event which is beyond the reasonable control of a party and still unavoidable under the reasonable attention of the affected party, including but not limited to governmental acts, acts of God, fire, explosion, geographical variation, storm, flood, earthquake, tidal wave, lightening or war. However, lack of credit, capital or finance shall not be deemed as matters that are beyond the reasonable control of a party. Any party affected by “Force Majeure Event” and seeking for exemption from performance of obligations under this Agreement or any terms of this Agreement shall notify the other party of such exemption of obligations as soon as possible and let inform the other party the necessary steps required to complete the performance of such obligations. |
| 11.2 | The party affected by a Force Majeure Event shall not be responsible for any liabilities under this Agreement resulting from the Force Majeure Event. However, the party seeking for exemption from liabilities may only be exempted under the condition that the affected party has made the best endeavor to perform the agreement, and the exemption of liabilities shall be limited to such portion of performance which has been delayed or prevented. When the cause for such exemption of liabilities is rectified, the Parties agree to resume the performance of this Agreement in their best effort. |
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| 12 | Governing Law and Dispute Resolution |
| 12.1 | The execution, effectiveness, performance and construction of this Agreement and the dispute resolution shall be governed by and interpreted in accordance with the PRC laws. |
| 12.2 | When the Parties hereto have any disputes over the construction and performance of any terms under this Agreement, the Parties shall resolve such disputes in good faith through consultation. If no resolution can be reached through consultation, any party may refer the relevant disputes to China International Economic and Trade Arbitration Commission, South China Sub- Commission for arbitration pursuant to the arbitration rules in effect. The arbitration shall be held in Shenzhen and in Chinese. There shall be one arbitrator. The arbitral awards shall be final and binding upon the Parties. |
| 12.3 | Except the disputed matters, the Parties shall still continue performing their respective obligations in good faith in accordance with the provisions of this Agreement. |
| 13 | Schedule |
The schedules to this Agreement shall be an integral part of this Agreement.
| 14 | Waiver |
Party A’s failure or delay in exercising any rights, remedies, powers or privileges under this Agreement shall not be deemed as a waiver of such rights, remedies, powers or privileges. Party A’s single or partial exercise of any rights, remedies, powers or privileges under this Agreement shall not exclude Party A from exercising any other rights, remedies, powers or privileges. The rights, remedies, powers or privileges under this Agreement are cumulative and not excluding the application of any rights, remedies, powers or privileges provided by any laws.
| 15 | Miscellaneous |
| 15.1 | The Parties acknowledge and agree that the full performance of cooperation under the Restructuring Agreements is subject to Lanyue’s obtaining of the Qualifications for Operating Mobile Online Games and expansion of its business scope to include the value-added telecom service and the development and operation of mobile games and online games. If Lanyue fails to obtain the Qualifications for Operating Mobile Online Games and complete such expansion or change of its business scope by 31 December 2015, then unless otherwise agreed by Party A in writing, this Agreement shall terminate on such date, and the Parties shall cooperate in good faith and take all such reasonable actions and execute all such reasonable and necessary documents as required to restore each party’s status prior to the date of this Agreement. |
| 15.2 | Any amendments, supplementations or changes to this Agreement shall be made in writing and take effect after being signed and sealed by the Parties. |
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| 15.3 | If any terms under this Agreement are invalid or unenforceable due to inconsistency with relevant laws, such terms shall only be invalid or unenforceable to the extent governed by such laws and shall not prejudice the legal effect of other terms of this Agreement. |
| 15.4 | This Agreement shall be written in Chinese with six original copies. |
[No Text Below]
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(No text in this page and this is the signature page of this Equity Pledge Agreement.)
| Xxx Xxxx Xxxx | ||
| Signature: | /s/ Xxx Xxxx Xxxx | |
| Xxxxxxxx Xxx | ||
| Signature: | /s/ Xxxxxxxx Xxx | |
| Huiyou Digital (Shenzhen) Ltd. [Company Seal Affixed] | ||
| Signature: | /s/ Xxx Xxxx Xxxx | |
| Name in Print: | Xxx Xxxx Xxxx | |
| Title: | Legal Representative | |
| Shenzhen Lanyue Internet Technology Co., Ltd. [Company Seal Affixed] | ||
| Signature: | /s/ Xxx Xxxx Xxxx | |
| Name in Print: | Xxx Xxxx Xxxx | |
| Title: | Legal Representative | |
Schedule
| 1. | Share Register of Lanyue |
| 2. | Capital Contribution Certificates of Lanyue |
Schedule 1
Shenzhen Lanyue Internet Technology Co., Ltd.
Share Register as of [date]
| Name of |
Address |
Capital |
Percentage of |
Capital |
Remarks | |||||
| Xxx Xxxx Xxxx | 9.9 million | 99% | 001 | All equity interests of the shareholder pledged with Huiyou Digital (Shenzhen) Limited on [date] | ||||||
| Xxxxxxxx Xxx | 0.1 million | 1% | 002 | All equity interests of the shareholder pledged with Huiyou Digital (Shenzhen) Limited on [date] | ||||||
| Total | 10 million | 100% |
Shenzhen Lanyue Internet Technology Co., Ltd.
Company Seal:
Legal Representative: Xxx Xxxx Xxxx
Date:
