Share Pledge Agreement
Exhibit
4.56
This
Share Pledge Agreement (this “Agreement”) is entered into on June 29, 2009 by
and among the following parties (“the Parties”):
PARTY
A: Simlife (Beijing) Science Co., Ltd.
Address:
Rm.416 Xx.00, Xxxx Xxxx Xxxxx Xxxx, Xxxxxxx Economic and Technology Development
Zone, Beijing
Party
B:
Shareholder
I: Xxx Xxx; ID No.: 110105197802109636
Address:
00X, Xxxxxx Xxxxx Xx.000 Xxxxx Xxxxxx Xxxxxxx Xxxxxxxx, Xxxxxxx,
XXX.
Shareholder
II: Chen Xxx Xxxx; ID No.: 350203750427403
Address:
Xx.00, Xx.000, Xxxxx Xxxx Siming, Siming District, Xiamen, Fujian,
PRC.
WHEREAS,
1.
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Party
A is a wholly foreign owned company registered and valid existing in the
PRC.
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2.
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Xiamen
Xinreli Scientific and Technology Co, Ltd. is a limited liability
company(“the Company”) registered in the
PRC.
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3.
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Shareholder
I and Shareholder II of Party B (the “Pledgor”) are the shareholders of
the Company, and own 80% and 20% equity interest in the Company
respectively.
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4.
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Party
A and the Company have signed Exclusive Technical and Consulting Services
Agreement on June 29, 2009; Party A, Party B and the Company have
signed Option Agreement and Business Operations Agreement on June 29,
2009.
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1
5.
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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 Pledgor 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.
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Therefore,
through friendly negotiations and in the principles of equality and mutual
benefit, the parties hereby enter agreement as follows.
1.
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Definitions
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Unless
otherwise provided in this Agreement, the following terms shall have the
following meanings:
1.1
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Pledge
means the full content of Article 2
hereunder.
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1.2
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Equity
Interest means all the equity interests in the Company legally and jointly
held by the Pledgors and all the present and future rights and benefits
based on such equity interest.
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1.3
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Reorganization
Agreements mean Exclusive Technical Consulting and Services Agreement,
Option Agreement and Business Operations Agreement signed by Party A, the
Company and the other relative parties on June 29,
2009.
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1.4
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Event
of Default means any event in accordance with Article 7
hereunder.
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1.5
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Notice
of Default means the notice of default issued by the Pledgee in accordance
with this Agreement.
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2.
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Pledge
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2.1
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The
Pledgors agree to pledge all the equity interest in the Company to Party A
as the security for Party A’s rights and interest under the reorganization
agreements.
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2
2.2
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The
Pledge under this Agreement refers to the rights owned by the Pledgee to
collect the fees (including legal fees), expenditures losses, interests,
compensations、damages. the
expenses for enforcing creditor’s rights that the Company and/or the
Pledgee shall pay under the Reorganization Agreement, and civil
liabilities that the Company and the Pledgor shall bear in case the Reorganization
Agreement wholly or partially becomes nullify due to any
reason.
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2.3
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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.
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2.4
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Unless
with Party A’s prior written consent from the effective date of the
Agreement, the pledge under this Agreement will be discharged only when
the Company and Pledgors have performed all the obligations and
liabilities under the Reorganization Agreement and Party A confirms in
writing. If the Company 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.
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3.
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Effect
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3.1
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This
Agreement shall take effect as of the date of signature by the Parties and
with the common seals on it. The pledge under this Agreement shall take
effect when the equity shares pledged are registered in the administrative
authority of industry and commerce.
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3.2
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Party
A is entitled to dispose the pledge from Party A’s reasonable notification
hereunder if the Company fails to pay the fees in accordance with the
Exclusive Technical Consulting and Services Agreement or fail to
perform other provisions of the Exclusive Technical Consulting
and Services Agreement, the Business Operation Agreement and the Option
Agreement.
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3
4.
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Physical
Possession Of Documents
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4.1
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During
the term of Pledge under this Agreement, the Pledgor shall deliver the
physical possession of the Certificate of Distribution (original) of the
Company to Party A, go through all the approval and registration
procedures with the LAWs in the PRC, and provide the testify of the proper
record of such pledge on the shareholders’ register of the Company to
Party A within ten(10) days as of the date of conclusion of this Agreement
or earlier time that be unanimously agreed by the
Parties.
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4.2
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If
any changes occurs to the recorded items under the Pledge, it shall be
registered in accordance with the Law, Party A and Party B shall make
corresponding record within five (5) working days of such change, and
provide the relative record
documents.
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4.3
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During
the term of the Pledge, the Pledgors shall inform the Company not
distribute any dividend and bonus, or adopt any profit distribution plan;
If the Pledgor is entitled to collect any economical interest except for
dividend, bonus or other distribution plan of profit, it shall inform the
Company remit such economical interest (after liquidation) to the bank
account designated by Party A, and shall not utilize it without the prior
written consent from Party A.
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4.4
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During
the term of the Pledge, if the Pledgors subscribe for the new register
capital of the Company or purchase the equity interests in other pledgor
(the “new shares”), the new shares shall be the equity shares pledged
automatically. The pledgors shall go through all the procedures for
creating pledge on the new shares within ten (10) days of acquiring such
shares. If the Pledgors fail to accomplish such procedures in accordance
with the preceding provisions, Party A shall be entitled promptly exercise
the Pledge pursuant to Article 8 under this
Agreement.
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5
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Warranties
And Representation Of The Pledgor
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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
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The
Pledgors lawfully own the equity interests hereunder and are entitled to
create pledge on such the equity
interests;
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5.2
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From
the date of execution of this Agreement and during the terms of the Pledge
pursuant to Article 2.4 under this Agreement. 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.
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4
5.3
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Party
A is entitled to dispose the pledge in accordance with relevant laws and
this Agreement.
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5.4
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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.
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5.5
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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).
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5.6
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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.
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5.7
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There
are no outstanding taxes, fees or undecided legal procedures related with
the equity interests hereunder at the date of execution of this
Agreement.
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5.8
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Each
provision hereunder is the expression of each Party’s true meaning and
shall be binding upon all the
Parties.
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6
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Covenant
Of The Pledgor
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6.1
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During
the term of this Agreement, the Pledgors covenants to Party A that the
Pledgors will:
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6.1.1
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Unless
consented by Party A, 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;
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5
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6.1.2
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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;
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6.1.3
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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;
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6.2
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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.
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6.3
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The
Pledgors warrant to Party A that in order to protect or perfect the
security over the obligation of the technical consulting and
service fees under the Organization Agreement, the Pledgors
shall make any necessary amendments on the Articles of Association of the
Pledgor and the Company respectively, and 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.
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6.4
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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.
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6
7
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Event
Of Default
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7.1
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The
following events shall be regarded as an event of
default:
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7.1.1
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The
Company or its successors or transferees fails to make full payment of
service fees under the Reorganization Agreement on time, or the Pledgors
or its successors or transferees fail to perform the Business Operations
Agreement, the Option Agreement and the Exclusive Consulting and Services
Agreement;
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7.1.2
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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;
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7.1.3
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The
Pledgors gravely violate any provisions of this
Agreement;
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7.1.4
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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;
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7.1.5
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The
Pledgor’s any external loan, security, compensation, covenants or any
other compensation liabilities are required to be repaid or performed
prior to the scheduled date; or 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, which subsequently
affects the interests of Party A;
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7.1.6
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The
Pledgors are incapable of repaying the general debt or other debt, which
subsequently affects the interests of Party
A;
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7.1.7
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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;
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7.1.8
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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;
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7
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7.1.9
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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;
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7.1.10
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Other
circumstances whereby the Pledgee is incapable of exercising the right to
dispose the Pledge in accordance with relevant
laws.
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7.2
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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.
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7.3
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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 Reorganization Agreement, and other payables or timely
perform the Business Operation Agreement or the Option Agreement. If the
Pledgor or the Company fails to redress its breach or take any necessary
remedies within ten (10) days of giving such a written notice, Party A
shall be entitled to dispose the Pledge in accordance with Article 8
herein.
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8
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Exercise
Of The Right Of The Pledge
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8.1
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The
Pledgor shall not transfer the pledge without prior written approval from
Party A prior to the full repayment of the fees under the Reorganization
Agreements..
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8.2
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Party
A shall give a notice of default to the Pledgors when it exercises the
right of pledge according to Article
7.3.
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8.3
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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.
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8
8.4
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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 Reorganization Agreements and all other payables there under are
repaid, and the full performance of the Business Operations Agreement or
the Option Agreement.
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8.5
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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 its
Pledge.
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9
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Transfer
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9.1
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The
Pledgors shall not transfer the rights and obligations to any third party
herein without prior consent from the
Pledgee.
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9.2
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This
Agreement shall be binding upon the Pledgors and their successors and be
effective to Party A and his successors and
assignees.
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9.3
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Party
A may transfer its 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.
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9.4
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After
the Pledgee’s change resulting from the transfer, the new parties to the
pledge shall reexecute a pledge agreement and the Pledgors shall be in
charge of going through all the registration
procedures.
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10
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Fees
And Other Charges
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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 shall be equally shared by both parties.
9
11
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Force
Majeure
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11.1
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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.
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11.2
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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.
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12
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Applicable
Law and Dispute Resolution
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12.1
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The
execution, validity, performance and interpretation of this Agreement
shall be governed by and construed in accordance with the PRC
law.
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12.2
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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.
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10
12.3
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Each
Party shall continue performance of this Agreement in good faith according
to the stipulations herein except the matters in
dispute.
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13
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Notice
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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:
Simlife (Beijing) Science Co., Ltd.
Address:
Rm.416 Xx.00, Xxxx Xxxx Xxxxx Xxxx, Xxxxxxx Economic and Technology Development
Zone, Beijing
Fax:
00000000
Tel:
00000000
Addressee:
Xxxx XxxXxxx
Party
B:
Shareholder
I, Xxx Xxx
Address:
00X, Xxxxxx Xxxxx Xx.000 Xxxxx Xxxxxx Xxxxxxx Xxxxxxxx, Xxxxxxx,
XXX.
Fax:
00000000
Tel:
00000000
Addressee:
Xxx Xxx
Shareholder
II, Xxxx XxxXxxx
Address:
Xx.00, Xx.000, Xxxxx Xxxx Siming, Siming District, Xiamen, Fujian,
PRC
Fax:
00-000-0000000
Tel:
00-000-0000000
Addressee:
Xxxx XxxXxxx
11
14
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Appendices
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The
appendices to this Agreement are entire and integral part of this
Agreement.
15
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Waiver
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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
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Miscellaneous
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16.1
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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.
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16.2
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The
Parties hereby agree that this fair and equitable Agreement is executed on
the basis of equality and mutual benefit, 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.
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16.3
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The
shareholders of Party B undertake that with any alternation in proportion
of the equity interest held by Party B, this Agreement shall be binding
upon Party B, and all the equity interests in Party B on the occasion
shall be bound by this Agreement. 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, including the equity pledge
agreement among the Party A, Party B, Party C, [ ] and
[ ]dated [ ].
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16.4
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This
Agreement shall be executed in Chinese and kept in 2
copies.
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12
(No text
on this page. Only for signature)
Party
A:
Simlife
(Beijing) Science Co., Ltd.
(Seal)
Party
B:
Shareholder
I
/s/ Xxx
Xxx
Shareholder
II
/s/ Chen
Xxx Xxxx
13
Appendix
The
Certificate of Distribution of the Shareholders
14