Share Pledge Agreement
Exhibit
4.13
This
Share Pledge Agreement (hereinafter referred to as this “Agreement”) is entered into on
this 1st of
July, 2008 in Shanghai by and among:
Shengqu Information Technology
(Shanghai) Co., Ltd., located at Xxxx 000, Xxxxxxxx 0, Xx. 000
Xxxxxxxxxxx Xxxx, Xxxxxxxxxx
Hi-Tech Park, Shanghai,
hereinafter referred to as “Party A”; and
Xxxx Xxxx-xu (ID Card No.:
[XXX]), whose residence
locates at [XXX], hereinafter referred to as “Party B”; and
Xxxxx Xxxx-xxxx (ID Card No.:
[XXX]), whose residence
locates at [XXX], hereinafter referred to as “Party C”.
Party A,
Party B and Party C may hereinafter collectively referred to as the “Parties” and, individually
referred to as the “Party”.
Whereas,
1.
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Party
A is a wholly foreign-owned enterprise incorporated and existing in the
People' Republic of China (the “PRC”) according to
law;
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2.
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Shanghai
Shulong Technology Development Co., Ltd. (hereinafter referred to as the
“Company”) is a
limited liability company incorporated in the
PRC;
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3.
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Party
B and Party C are shareholders of the Company (hereinafter referred to as
the “Pledgors”),
holding 48.6% and 51.4% Share of the Company respectively, (100% Share of
the Company being held by Party B and Party C are referred to as “Relevant Share”
hereinafter);
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4.
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Party
A and the Company entered into the Exclusive Concluding and Service
Agreement on July 01, 2008; Party A, Party B and Party C, the Company
entered into the Share Disposition Agreement and the Business Operating
Agreement on July 01, 2008;
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5.
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For
ensuring Party A to charge the service fees under the Exclusive Consulting
and Service Agreement from the Company owned by Party B and Party C, and
ensuring the performance of the Share Disposition Agreement and the
Business Operating Agreement, the Pledgors pledge all of its Share in
the
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1
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Company
as the pledge security for the performance of the said agreements, in
which Party A is the
Pledgee.
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NOW
THEREFORE, the
Parties have reached the following terms and conditions on the principle of
equal footing and mutual benefits through friendly
negotiation:
1
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Definitions
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Unless
otherwise specified in the context, the capitalized terms used in this
Agreement shall have the meaning set forth
below:
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1.1
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“Pledge Right” shall mean
shall contents set forth in Section 2
hereof.
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1.2
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“Share” shall mean all
Share being held by the Pledgors lawfully and all present and future
rights and interests conferred on such
Share.
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1.3
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“Each Agreement” shall
mean the Exclusive Consulting and Service Agreement, the Share Disposition
Agreement and the Business Operating Agreement dated on July 01, 2008 by
and among Party A, the Company and other relevant
parties.
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1.4
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“Breaching Events” shall
mean any circumstances set forth in Section 7
hereof.
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1.5
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“Breaching Notice” shall
mean the notice sent by Party A in accordance with this Agreement for
declaring the breach.
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2
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Pledge
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2.1
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The
Pledgors shall pledge all of their Share in the Company as the security
for Party A's rights and interests
hereunder.
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2.2
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The
Share Pledge hereunder shall cover all fees (including legal costs),
expenditures, losses, interests, liquidated damages, compensations,
expenses for realization of creditor's rights, payable to Party A by the
Company and/or the Pledgors, and the liabilities of the Company and the
Pledgors to Party A when Each Agreement becomes invalid in whole or part
for any reason.
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2.3
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The
Pledge Rights hereunder shall mean that Party A is entitled to gain the
considerations of the pledged Share that may be disposed by discount,
auction and disposition with
priority.
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2
2.4
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Unless
otherwise expressly agreed in writing by Party A after this Agreement
comes to effect, the Pledge hereunder can be terminated provided that the
Company and the Pledgors have performed all of their obligations and
liabilities hereunder and Party A has accepted such performance in
writing. In the event that the Company or the Pledgor fails to perform the
whole or any part of its obligations or liabilities under Each Agreement
upon the expiration of the term of any such Each Agreement, Party A is
still entitled to the Pledge Rights hereunder, unless and until the said
obligations and liabilities are performed in a way satisfactory to Party
A.
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3
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Validity
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3.1
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This
Pledge Agreement comes to effect from the date when it is entered into by
the Parties, and the Pledge Rights come to effect from the date when the
Administration for Industry and Commerce completes the pledge
registration.
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3.2
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In
the event that the Company fails to pay the service fees or to perform any
other provisions under the Exclusive Consulting and Service Agreement, or
fails to perform any provision under the Business Operating Agreement or
the Share Disposition Agreement in the pledge period, Party A is entitled
to exercise the Pledge Rights in accordance with this Agreement after
giving reasonable notice.
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4
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Possession
and Safekeeping of Pledge Right
Certificate
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4.1
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The
Pledgors shall deliver their Shareholder Contribution Certificates
(original) in the Company to Party A within ten (10) business days from
the date when this Agreement is entered into or on the other earlier date
that has been agreed by the Parties, and submit Party A with the
certificate showing that the Pledge hereunder has been registered on the
Share Register, and complete all approval, registration and recording
formalities required by the laws and regulations of the PRC, and submit
the Share Pledge Registration Certificates that have been completed with
the Administration for Industry and Commerce. For more information on the
forms of the company Shareholder Contribution Certificate and Share
Register, please refer to the Appendix
hereto.
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4.2
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In
the event that the pledge recordings have been changed, and such changes
shall be registered and recorded accordingly, Party B, Party C and Party A
shall do so and submit relevant documents for registering such changes
within five (5) business days from the date when such pledge recordings
are changed.
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3
4.3
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The
Pledgors shall order the Company not to allocate any dividends, bonus, or
not to make any profit distribution plan in the Share Pledge period. In
case the Pledgors are entitled to obtain any other economic benefits in
respect of the pledged share rather than the dividends, bonus or other
profit distribution, it shall order the Company to remit relevant
(realized) amount to the bank account designated by Party A at Party A's
request. Without Party A's prior written consents, the Pledgors shall not
use such amount at its own
discretions.
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4.4
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In
the event that the Pledgors subscribe the new registered capitals of the
Company or acquire the Company's Share held by other pledgors (hereinafter
referred to as the “New Additional Share” collectively) in the Share
Pledge period, such New Additional Share shall become one part of the
Share Pledge hereunder automatically. In such case, the Pledgors shall
complete all formalities necessary to pledge the said New Additional Share
within ten (10) business days after they obtain such New Additional Share.
In the event that the Pledgors fail to complete relevant formalities
according to the foregoing provisions, Party A is entitled to exercise the
Pledge Rights with immediate effect in accordance with Section 8
hereof.
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5
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Statements
and Warranties of Pledgors
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The
Pledgors shall state and warrant to Party A as follows as of the signature date
of this Agreement, and shall acknowledge that the signature and performance of
this Agreement by Party A is based on such statements and
warranties.
5.1
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The
Pledgors are holding the Share hereunder according to law, and have the
rights to pledge such Share in favor of Party
A.
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5.2
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There
is no legitimate claim or intervention from a third party when Party A
exercises its rights or the Pledge Rights in accordance with this
Agreement at any time in the period from the date when this Agreement is
entered into to the time in which Party A enjoys the Pledge Rights in
accordance with Section 2.4 hereof.
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5.3
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Party
A is entitled to exercise the Pledge Rights through the methods specified
by the laws, regulations and this
Agreement.
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5.4
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The
signature of this Agreement and the performance of their obligations
hereunder have been authorized or approved necessarily by the Company and
have been acknowledged by other shareholders, and shall not violate
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4
any
applicable laws and regulations and the articles of association. The
signatory has been authorized to sign this Agreement acting as the
authorized representative according to
law.
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5.5
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There
is no other encumbrance or secured right and benefit (including but not
limited to the pledge) in favor of a third party against the Share being
held by the Pledgors.
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5.6
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There
is no pending civil, administrative or criminal suit or administrative
penalty or arbitration in relation to the Share, or no civil,
administrative or criminal suit or administrative penalty or arbitration
that may arise in the future.
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5.7
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There
is no due and outstanding tax, expense, or due and uncompleted legal
proceeding or formality in relation to the
Share.
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5.8
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All
provisions hereof constitute their true intents and are binding upon them
lawfully.
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6
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Undertakings
of Pledgors
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6.1
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During
the Term of this Agreement, the Pledgors shall undertake to Party A that
they will:
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6.1.1
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Not
assign the Share, nor create or allow existence of any other encumbrance
or secured rights and benefits in favor of a third party that may affect
the pledged rights and benefits of Party A in any way without Party A's
prior written consents, unless otherwise such Share is assigned to Party A
or the person designated by it at the request of Party
A;
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6.1.2
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Abide
by all applicable laws and regulations, and show the notices, orders or
suggestion to Party A within five (5) business days after they receive
such notices, orders or suggestion from relevant competent authorities,
and take actions subject to reasonable indication of Party
A;
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6.1.3
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Notify
Party A of any events or received notices that may affect the Share of the
Pledgors or any rights thereon forthwith, or any events or received
relevant notices that may change any obligations of or affect the
performance of the obligations of the Pledgors under this Agreement, and
take actions subject to reasonable indication of Party
A.
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5
6.2
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The
Pledgors have undertaken that the exercise of its rights hereunder by
Party A will not be interrupted or impaired by them or their successors or
assigns or any other persons.
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6.3
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For
protecting or perfecting the security against the obligations of the
Pledgors and /or the Company hereunder, the Pledgors have undertaken to
Party A that they will modify their respective articles of association and
the articles of association of the Company necessarily (if applicable)
accordingly, enter into all entitlement certificates and deeds requested
by Party A in good faith, and cause other persons related to the Pledge
Rights to do so, and/or perform the actions required by Party A and cause
other related persons to do so, and provide convenience for the exercise
of the Pledge Rights by Party A, and enter into all documents in relation
to the change of the Share Certificate with Party A or any third party
designated by it, and provide Party A with all necessary documents in
relation to the Pledge Rights as Party A thinks fit within a reasonable
period.
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6.4
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In
favor of Party A's benefits, the Pledgors have undertaken to Party A that
they will abide by and perform all of their promises, undertakings,
agreements and statements. In the event that the Pledgors fail to perform
their promises, undertakings, agreements and statements or do so
incompletely, they shall indemnify all of Party A's losses arising
therefrom.
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7
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Breaching
Events
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7.1
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Any
of the following events shall be deemed as the breaching
events:
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7.1.1
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Any
of the Company, its successors or assigns fails to pay any due amount in
full under Each Agreement within the agreed period, or any of the
Pledgors, their successors or assigns fails to perform its obligations
under the Business Operating Agreement, the Share Disposition Agreement
and the Exclusive Consulting and Service
Agreement;
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7.1.2
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Any
of the statements, promises or undertakings of the Pledgors under Section
5 and 6 hereof is misleading or wrong, and/or there exist other actions in
violation of the statements, promises or undertakings of the Pledgors
under Section 5 and 6 hereof;
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7.1.3
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The
Pledgors have violated any provisions hereof
materially;
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7.1.4
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The
Pledgors have waived the pledged Share or assigned such pledged Share at
its own discretions without Party A's prior
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6
written
consents, unless otherwise specified in Section 6.1.1;
7.1.5
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Any
borrowings, security, indemnifications, undertakings or other liabilities
of the Pledgors are required to be repaid or performed earlier due to
their breaches, or the same are due but cannot be repaid or performed,
which makes Party A deem that the capabilities of the Pledgors to perform
their obligations hereunder have been affected adversely, and in turn its
benefits may be affected;
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7.1.6
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The
Pledgors cannot repay their general obligations or other owed money, which
in turn affects Party A's benefits;
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7.1.7
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This
Agreement becomes invalid or the Pledgors cannot perform their obligations
hereunder further due to the promulgation of relevant
laws;
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7.1.8
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The
consents, permits, approvals or authorizations of any governmental
authorities, which are necessary to the enforcement, legitimacy or
validity of this Agreement, have been withdrawn, suspended, expired or
modified substantially;
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7.1.9
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The
adverse changes of the properties owned by the Pledgors make Party A deem
that the capabilities of the Pledgors to perform their obligations
hereunder have been affected
adversely;
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7.1.10
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Other
circumstances in which Party A cannot dispose the Pledge Rights hereunder
in accordance with the laws and
regulations.
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7.2
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In
the event that the Pledgors have known or found any matter specified in
Section 7.1 or any other events that may cause the such matters have
arisen, they shall inform Party A of such matters or events in writing
forthwith.
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7.3
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Unless
otherwise the breaches specified in Section 7.1 above have been settled to
the satisfactory of Party A, Party A may send a written Breaching Notice
to the Pledgors at any time when or after such breaches arise, and request
the Pledgors to repay the owed money and other receivables immediately or
perform the Share Disposition Agreement and the Business Operating
Agreement forthwith. In the event that the Pledgors or the Company have
failed to correct their breaches or taken necessary remedies within ten
(10) days after the said written notice is sent, Party A is entitled to
exercise the Pledge Rights in accordance with Section 8
hereof.
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8
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Exercise
of Pledge Rights
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7
8.1
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The
Pledgors shall not assign the Share without Party A's prior written
consents before the fees and obligations under Each Agreement are paid and
performed.
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8.2
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Party
A shall send the Breaching Notice to the Pledgors in accordance with
Section 7.3 hereof when it exercises the Pledge Rights
hereunder.
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8.3
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Subject
to Section 7.3 hereof, Party A may exercise the Pledge Rights at any time
after it sends the Breaching Notice in accordance with Section 7.3
hereof.
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8.4
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Party
A is entitled to gain the considerations of the pledged Share hereunder or
any part of it that may be disposed by discount, auction and disposition
with priority in accordance with the legal proceedings, unless and until
any outstanding service fees and any other payables under Each Agreement
are offset, and the obligations under the Share Disposition Agreement, the
Business Operating Agreement are
performed.
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8.5
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When
Party A exercises the Pledge Rights hereunder, the Pledgors shall not
interrupt such exercise, and shall give necessary assistance for the
exercise of the Pledge Rights by Party
A.
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9
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Assignment
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9.1
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Without
Party A's prior written consents, the Pledgors shall not assign any of
their rights and/or obligations hereunder to a third
party.
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9.2
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This
Agreement shall be binding upon the Pledgors and their successors, and
inure to the benefit of Party A and its successors or
assigns.
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9.3
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Party
A may at any time assign all or any part of its rights or obligations
hereunder to any third party designated by it. In such case, such third
party shall enjoy and bear Party A's rights and obligations hereunder.
When Party A assigns its rights and obligations under Each Agreement, the
Pledgors shall enter into the agreements and/or documents in relation to
such assignment at Party A's
request.
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9.4
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In
the event that the Pledgors are replaced by virtue of the said assignment,
the parties to the new pledge shall enter into a new pledge agreement, and
the Pledgors shall be responsible for completing all relevant registration
formalities.
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10
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Commission
Charge and Other Fees
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8
10.1
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Any
fees and out-of-pockets in relation to this Agreement, including but not
limited to legal fees, production costs, stamp duties and any other taxes
and fees, shall be borne by Party A and Party B in
50:50.
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11
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Force
Majeure
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11.1
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When
the performance of this Agreement is delayed or interrupted due to any
Force Majeure Events, the Party so affected (the “Affected Party”) shall
be excused from such delayed or interrupted performance. “Force Majeure
Events” shall mean any events beyond the reasonable controls of the
Affected Party, which are unavoidable even if the Affected Party takes a
reasonable care, including but not limited to governmental acts, Act of
God, fires, explosion, geographic variation, storms, floods, earthquakes,
morning and evening tides, lightning or wars. However, any shortage of
credits, funds or financing shall not be deemed as the events beyond
reasonable controls of the Affected Party. The Affected Party seeking for
the exemption of any performance under this Agreement or any provision
hereof shall inform the other Party of such exemption and its proposed
measures for making further performance as soon as
practicable.
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11.2
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The
Affected Party shall be excused from any liability hereunder provided
always that it has tried its best efforts to perform this Agreement.
However, the exempted liabilities shall be subject to such delayed or
interrupted performance. Once the causations for the said exemption are
corrected or remedied, each party shall try its best efforts to recover
the performance of this Agreement.
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12
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Governing
Law and Dispute Resolution
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12.1
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The conclusion, validity and performance of, interpretation to and dispute resolution in
relation to this
Agreement shall be governed by the laws of China.
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12.2
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Any dispute arising out of the
interpretation to or performance of this Agreement shall be resolved
through friendly negotiation by the Parties; if not reached, any Party may submit such dispute to the
China International Economic and Trade Arbitration Commission Shanghai
Commission (“CIETACSC”) according to the Rules of
CIETACSC. Such
arbitration shall be carried out in Shanghai. The language in the arbitration
proceedings shall be Chinese. The awards are final and binding
upon the parties
hereto.
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12.3
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Save for the matters under
disputes, the Parties shall continue to perform
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9
their respective obligations in good faith
in accordance with this Agreement.
13
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Notices
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13.1
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All
notices and correspondences to or upon each Party to be effective for the
performance of the rights and obligations hereunder shall be in writing,
and sent to the following addresses of the other Parties by personal
delivery, registered mail, postage prepaid mail, generally accepted
courier service or fax.
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Party A:
Shengqu Information Technology (Shanghai) Co., Ltd.
Address:
Xx. 000 Xxxxxxxxxxx Xxxx, Xxxxxxxxxx Xx-Xxxx Xxxx, Xxxxxxxx
Party B:
Xxxx Xxxx-xu
Address:
[XXX]
Party C:
Xxxxx Xxxx-xxxx
Address:
[XXX]
13.2
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Any
notice and correspondence shall be deemed to be served as
follows:
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13.2.1
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If
it is sent by fax, it shall be deemed to be served on the recording date
on the faxed copy. However, if it is sent after 17:00 P.M. on a business
day or on a non-business day of the addressee, it shall be deemed to be
served on the next business day following the recording date on the faxed
copy;
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13.2.2
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If
it is sent by personal delivery (including the express mail service), the
date when it is signed and accepted shall
prevail;
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13.2.3
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If
it is sent by registered mail, the 15th
day following the date recorded on the return receipt shall
prevail.
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14
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Appendix
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Any
appendix to this Agreement shall be integral to it.
15
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Waiver
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Any
failure or delay to exercise any of its rights, remedies, powers or privileges
hereunder by Party A shall not constitute a waiver of such rights, remedies,
powers or privileges by Party A. Any single or partial exercise of any of its
rights,
10
remedies,
powers or privileges hereunder by Party A shall not affect the exercise of any
other rights, remedies, powers or privileges hereunder by Party A. The rights,
remedies, powers or privileges hereunder are accumulated without any prejudices
to any rights, remedies, powers or privileges specified by any laws and
regulations.
16
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Miscellaneous
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16.1
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Any
amendments, supplements or alterations to this Agreement shall be made in
writing, which come to effect after they are entered into and sealed (if
applicable).
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16.2
|
The
Parties hereby confirm that this Agreement constitutes the fair and
reasonable agreements by and between them on the basis of equal footing
and mutual benefits. In the event that any provision hereof becomes
invalid or unenforceable because such provision conflicts with relevant
laws, such provision shall be void and null or unenforceable under
applicable laws, and shall not affect the validity and enforcement of the
remaining provisions of this
Agreement.
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16.3
|
Party B and Party C have
undertaken that any provision herein is binding upon them lawfully, irrespective of any change of
the
Company's Share held by Party B and Party
C respectively in the
future, and that this Agreement shall be applicable to all of the Company's Share to be held by Party B and
Party C for the time being.
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16.4
|
This Agreement is made in Chinese
with two (2) originals.
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[No Text
Follow, Signature Page for Share Pledge Agreement Follow]
11
Party A:
Shengqu Information Technology (Shanghai) Co., Ltd.
Legal
Representative/Authorized Representative: _____________________
Title:
______________________________________________________
Date:
__________________ MM ____________ DD ______________ YY
____________
Party B:
Xxxx Xxxx-xu (Sign)
Date:
__________________ MM ____________ DD ______________ YY
____________
Party C:
Xxxxx Xxxx-xxxx (Sign)
Date:
__________________ MM ____________ DD ______________ YY
____________
12
Appendix:
1. Share
Register of Company
Share
Register of Shanghai Shulong Technology Development Co., Ltd.
Company's
Shareholders
Name
of Shareholder
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ID
Card No.
|
Address
|
Contribution
|
Ratio
|
Note
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Xxxx
Xxxx-xu
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[XXX]
|
[XXX]
|
RMB
4.68 Million
|
48.6%
|
Pledged
|
Xxxxx
Xxxx-xxxx
|
[XXX]
|
[XXX]
|
RMB
5.14 Million
|
51.4%
|
Pledged
|
It is
hereby verified that Xxxx Xxxx-xu, the shareholder of the Company, has pledged
48.6% Share of the Company to Shengqu Information Technology (Shanghai) Co.,
Ltd.
It is
hereby verified that Xxxxx Xxxx-xxxx, the shareholder of the Company, has
pledged 51.4% Share of the Company to Shengqu Information Technology (Shanghai)
Co., Ltd.
Shanghai
Shulong Technology Development Co., Ltd.
(Seal)
Xxxx
Xxxx-xu
Sign and
Seal:
Xxxxx
Xxxx-xxxx
Sign and
Seal:
Date: MM DD YY
13
2.
Shareholder Contribution Certificate
Shareholder
Contribution Certificate of Shanghai Shulong Technology Development Co.,
Ltd.
Name of
Company: Shanghai Shulong Technology Development Co., Ltd.
Incorporation
Date of Company: January 01, 2002
Registered
Capital of Company: XXX 00 Xxxxxxx
Xxxx of
Shareholder:
Contribution:
Contribution
Method:
Contribution
Date: May 26, 2008
Sealed by
Company:
Issuance
Date: MM DD YY
14