Zhou Yu and Ye Yuan and Reshuffle Technology (Shanghai) Co., Ltd. Equity Interest Pledge Agreement in respect of Beijing Tixian Digital Technology Co., Ltd. February 15, 2012
Exhibit 4.47
English Translation
▇▇▇▇ ▇▇
and
Ye Yuan
and
Reshuffle Technology (Shanghai) Co., Ltd.
Equity Interest Pledge Agreement
in respect of
Beijing Tixian Digital Technology Co., Ltd.
February 15, 2012
EQUITY INTEREST PLEDGE AGREEMENT
THIS EQUITY INTEREST PLEDGE AGREEMENT (hereinafter, this “Agreement”) is made and entered into in Shanghai, the People’s Republic of China (hereinafter, the “PRC”) as of February 15, 2012 by and among the following parties:
| (1) | ▇▇▇▇ ▇▇ |
Identity Card No.:370203197209032018
| (2) | Ye Yuan |
Identity Card No.:210102197303121811
(▇▇▇▇ ▇▇ and Ye Yuan, hereinafter individually and collectively the “Pledgors”.)
| (3) | Reshuffle Technology (Shanghai) Co., Ltd. (hereinafter, the “Pledgee”) |
| Registered Address: ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇ Software Park, No.498 Guoshoujing Road, Zhangjiang High-tech Park, Shanghai, |
| Legal Representative: ▇▇▇ ▇▇▇▇ |
| (In this Agreement, the aforesaid parties are hereinafter referred to individually as a “Party” and collectively as the “Parties”.) |
WHEREAS:
| (1) | The Pledgors are the registered shareholders of Beijing Tixian Digital Technology Co., Ltd. (with its registered address at Room 9960, 3# Building, ▇▇.▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇-▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ and its legal representative being ▇▇▇▇ ▇▇, hereinafter referred to as the “Company”), legally holding 100% equity interest in the Company (hereinafter, the “Company Equity”), and their contribution amounts in the registered capital of the Company and their shareholding percentages as of the date hereof are set out in Annex 1 hereto. |
| (2) | Pursuant to the Exclusive Call Option Agreement dated February 15, 2012 among the Pledgee, the Pledgors and the Company (hereinafter, the “Call Option Agreement”), the Pledgors shall, to the extent permitted by the PRC Law, and upon the request of the Pledgee, transfer all or part of the equity interests held by them in the Company to the Pledgee and/or any other entity or individual designated by the Pledgee. |
| (3) | Pursuant to the Shareholder Proxy Agreement dated February 15, 2012 among the Pledgee, the Pledgors and the Company (hereinafter, the “Proxy Agreement”), the Pledgors have fully entrusted the individual designated by the Pledgee to represent the Pledgors to exercise all its voting rights as the shareholder of the Company. |
| (4) | Pursuant to the Exclusive Consultancy and Service Agreement dated February 15, 2012 between the Pledgee and the Company (hereinafter, the “Service Agreement”), the Company has engaged the Pledgee on an exclusive basis to provide it with related technical consultancy and services and will pay the corresponding service fees to the Pledgee in respect of such technical consultancy and services. |
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| (5) | Pursuant to the Loan Agreement dated December 1, 2011 between the Pledgee and the Pledgors (hereinafter, the “Loan Agreement”), the Pledgee has provided a loan in Renminbi to the Pledgors. |
| (6) | As a guarantee for the performance of the Contractual Obligations (as defined below) and the repayment of the Guaranteed Liabilities (as defined below) by the Pledgors and the Company, the Pledgors agrees to pledge to the Pledgee all of the equity interests held by them in the Company, and to grant to the Pledgee a right of priority in the pledge. |
NOW, THEREFORE, the Parties, after friendly negotiations, hereby agree below:
Article 1 Definitions
| 1.1 | Unless otherwise required by the context, the following terms herein shall have the following meanings: |
| “Contractual Obligations” |
means all contractual obligations of the Pledgors under the Call Option Agreement, Proxy Agreement, Loan Agreement and this Agreement, and all contractual obligations of the Company under the Call Option Agreement, Proxy Agreement and Service Agreement. | |
| “Guaranteed Liabilities” |
means all direct, indirect, derivative losses and foreseeable loss of profits suffered by the Pledgee as a result of any Event of Default of the Pledgors and/or the Company, the amount of which shall be determined by the Pledgee at its sole discretion, which shall be binding on the Pledgors; as well as all fees incurred in the enforcement of performance of the Contractual Obligations of the Pledgors and/or the Company by the Pledgee. | |
| “Transaction Agreements” |
means the Loan Agreement, Call Option Agreement, Proxy Agreement and Service Agreement. | |
| “Event of Default” |
means any breach by the Pledgors of its Contractual Obligations under the Call Option Agreement, Proxy Agreement, Loan Agreement or this Agreement and/or any breach by the Company of its Contractual Obligations under the Call Option Agreement, Proxy Agreement or Service Agreement. | |
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| “Pledged Property” |
means all of the equity interests in the Company lawfully owned by the Pledgors as of the effective date hereof and pledged to the Pledgee pursuant to the provisions hereof as a guarantee for the performance of the Contractual Obligations and the repayment of the Guaranteed Liabilities, with the details of the pledged equity interests of the Pledgors set out in Annex 1 hereto, as well as the increased contribution and dividends in accordance with Article 2.6 and Article 2.7 hereof. | |
| “PRC Law” |
means the then effective laws, administrative regulations, administrative rules, local regulations, judicial interpretations and other binding regulatory documents of the People’s Republic of China. | |
| “Equity interest pledge” |
has the meaning as ascribed to it in Article 2.2 hereof. | |
| “Rights” |
has the meaning as ascribed to it in Article 12.7 hereof. | |
| “Power of Attorney” |
has the meaning as ascribed to it in Article 12.12 hereof. | |
| 1.2 | The references to any PRC Law herein shall be deemed: |
| (1) | to include the references to the amendments, changes, supplements and reenactments of such Law, irrespective of whether they take effect before or after the date of this Agreement; and |
| (2) | to include the references to other decisions, notices or regulations enacted in accordance therewith or effective as a result thereof. |
| 1.3 | Except as otherwise stated in the context herein, all references to an article, clause, item or paragraph shall refer to the relevant part of this Agreement. |
Article 2 Equity Interest Pledge
| 2.1 | The Pledgors hereby agree to pledge to the Pledgee the Pledged Property which they lawfully own and are entitled to dispose of pursuant to the provisions hereof as the guarantee for performance of the Contractual Obligations and repayment of the Guaranteed Liabilities. |
| 2.2 | The Pledgors undertake that they will be responsible for, on the date hereof, the recording of the equity interest pledge arrangement hereunder (hereinafter, the “Equity Interest Pledge”) on the shareholders register of the Company, and shall make its best efforts to complete the relevant registration procedures with the competent administration for industry and commerce. |
| 2.3 | Within the valid term of this Agreement, the Pledgee shall not be liable in any way for loss in the value of the Pledge Property, nor shall the Pledgors be entitled to claim in any way or make any demand on the Pledgee in respect thereof unless such loss is directly caused by intentional misconduct or gross negligence of the Pledgee. |
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| 2.4 | Subject to the provision of Article 2.3 above, in the event of any possible obvious loss in the value of the Pledged Property, which is sufficient to adversely affect the Pledgee’s rights, the Pledgee may at any time auction or sell off the Pledged property on behalf of the Pledgors, and use the proceeds from such auction or sale-off as early repayment of the Guaranteed Liabilities upon agreement with the Pledgors, or submit such proceeds to the local notary institution where the Pledgee is domiciled (any fees incurred in relation thereto shall be borne by the Pledgors). |
| 2.5 | In case of any Event of Default, the Pledgee is entitled to dispose of the Pledged property as set forth in Article 4 hereof. |
| 2.6 | Only with the prior consent of the Pledgee can the Pledgors increase the registered capital of the Company. The increased capital contribution of the Pledgors in the registered capital of the Company as a result of such capital increase shall also be the Pledged Property. |
| 2.7 | Only upon prior consent by the Pledgee shall the Pledgors be able to receive dividends from the Pledged property. The dividends received by the Pledgors from the Pledged property shall be deposited into the bank account designated by the Pledgee and subject to the supervision of the Pledgee, and shall be used as the Pledged Property for discharge of the Guaranteed Liabilities in first priority. |
| 2.8 | The Pledgee is entitled to dispose of any Pledged property of the Pledgors pursuant to the provisions hereof upon the occurrence of any Event of Default. |
Article 3 Release of Equity Interest Pledge
Upon full and complete performance of all Contractual Obligations and repayment of all the Guaranteed Liabilities by the Pledgors and the Company, the Pledgee shall, according to the requirements of the Pledgors, release the Equity interest pledge hereunder, and cooperate with the Pledgors in handling the cancellation of the Equity Interest Pledge record in the shareholders register of the Company. Reasonable fees incurred in the release of the Equity interest pledge shall be borne by the Pledgee.
Article 4 Disposal of the Pledged Property
| 4.1 | The Pledgors and the Pledgee hereby agree that, in case of any Event of Default, the Pledgee shall be entitled to exercise, upon written notice to the Pledgors, all of its rights and powers arising under default remedies under the PRC Laws, Transaction Agreements and the terms hereof, including but not limited to repayment in priority with proceeds from auctions or sale-offs of the Pledged property. The Pledgee shall not be liable for any loss resulting from its reasonable exercise of such rights and powers. |
| 4.2 | The Pledgee is entitled to designate in writing its legal counsel or any other agent to exercise on its behalf any and all rights and powers set out above, and the Pledgors shall not oppose thereto. |
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| 4.3 | All reasonable fees incurred in the Pledgee’s exercise of any or all of the above rights and powers shall be borne by the Pledgors. The Pledgee is entitled to deduct such costs as actually incurred from the proceeds acquired in its exercise of such rights and powers. |
| 4.4 | The proceeds acquired by the Pledgee in its exercise of its rights and powers shall be used in the following order: |
First, to pay for all costs incurred in connection with the disposal of the Pledged property and the exercise by the Pledgee of its rights and powers (including remuneration to its legal counsel and agents);
Second, to pay for any taxes payable in connection with the disposal of the Pledged property; and
Third, to repay the Guaranteed Liabilities to the Pledgee.
If there is any balance after the above payments, the Pledgee shall return the same to the Pledgors or other persons entitled thereto pursuant to relevant laws and regulations, or escrow the same to the local notary institution where the Pledgee is domiciled (any fees incurred in relation thereto shall be borne by the Pledgors).
| 4.5 | The Pledgee shall be entitled to elect to exercise, simultaneously or otherwise, any of the default remedies it is entitled to; the Pledgee is not obliged to exercise other default remedies before its exercise of the auctions or sale-offs of the Pledged property hereunder. |
Article 5 Fees and Costs
All actual costs in connection with the creation of the Equity Interest Pledge hereunder, including (but not limited to) stamp duties, any other taxes, all legal fees, etc., shall be borne by the Parties respectively.
Article 6 Continuity and No Waiver
The Equity Interest Pledge hereunder is a continuous guarantee, and shall remain valid until the full performance of the Contractual Obligations or the full repayment of the Guaranteed Liabilities. No exemption or grace period granted by the Pledgee to the Pledgors concerning any breach by the Pledgors or delay by the Pledgee in its exercise of any of its rights hereunder, shall affect the rights of the Pledgee to demand at any time hereafter the strict performance of this Agreement by the Pledgors or the rights entitled to the Pledgee arising from subsequent breach by the Pledgors of this Agreement pursuant to this Agreement and relevant PRC Law.
Article 7 Representations and Warranties
The Pledgors hereby severally and jointly represent and warrant to the Pledgee as follows:
| 7.1 | The Pledgors are PRC citizens with full capacity and with full and independent legal status and legal capacity; has obtained appropriate authorization to execute, deliver and perform this Agreement; and may act independently as a subject of actions. |
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| 7.2 | The Pledgors have full power and authority to execute and deliver this Agreement and all other documents related to the transaction contemplated hereunder to be executed by the Pledgors, and have full power and authority to consummate the transaction set forth herein. |
| 7.3 | All reports, documents and information provided by the Pledgors to the Pledgee prior to the effectiveness of this Agreement concerning the Pledgors and all issues required hereunder are true and accurate in all material aspects as of the effective date hereof. |
| 7.4 | All reports, documents and information provided by the Pledgors to the Pledgee after the effective date hereof concerning the Pledgors and all issues required hereunder are true, accurate and valid in all material aspects at the time when provided. |
| 7.5 | As of the effective date hereof, the Pledgors are the sole legal owners of the Pledged Property and is entitled to dispose of the Pledged Property or any part thereof, and there is no outstanding dispute concerning the ownership of the Pledged Property. |
| 7.6 | Except for the encumbrance created on the Pledged Property hereunder, there is no other encumbrance or third party interest on the Pledged Property. |
| 7.7 | The Pledged Property can be pledged or transferred in accordance with law, and the Pledgors has the full right and power to pledge it to the Pledgee pursuant to the provisions hereof. |
| 7.8 | This Agreement constitutes the legal, valid and binding obligations of the Pledgors upon due execution by the Pledgors. |
| 7.9 | Any consent, permission, waiver or authorization by any third person, or any approval, permission, exemption by any government authority, or any registration or filing formalities (if required by laws) with any government authority with respect to the execution and performance hereof and the Equity Interest Pledge hereunder have already been handled or obtained, and shall be fully valid within the term of this Agreement. |
| 7.10 | The execution and performance by the Pledgors of this Agreement do not violate or conflict with any applicable laws, or any agreement to which they are a party or which is binding on its assets, any judgment rendered by a court, any arbitration awards issued by an arbitration institution, or any decision made by an administrative authority. |
| 7.11 | The Equity Interest Pledge hereunder constitutes the security interest with first priority on the Pledged Property. |
| 7.12 | All the taxes and fees payable in connection with the obtaining of the Pledged Property have been fully paid by the Pledgors. |
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| 7.13 | There is no pending or, to the knowledge of the Pledgors, threatening litigation, legal proceeding or demand in any court or any arbitral tribunal against the Pledgors, or its property, or the Pledged property; there is no pending or, to the knowledge of the Pledgors, threatening litigation, legal proceeding or demand by any governmental or administrative authority against the Pledgors, or its property, or the Pledged property, which shall be of material or detrimental effect on the economic conditions of the Pledgors or its capability to perform the obligations hereunder and the Guaranteed Liabilities. |
| 7.14 | The Pledgors hereby warrants to the Pledgee that the above representations and warranties shall remain true and accurate at any time and under any circumstance prior to the full performance of the Contractual Obligations and the full repayment of the Guaranteed Liabilities and shall be fully complied with. |
Article 8 Undertakings of the Pledgors
The Pledgors hereby severally and jointly undertakes to the Pledgee as follows:
| 8.1 | Without the prior written consent by the Pledgee, the Pledgors shall not create or permit the creation of any new pledge or any other encumbrance on the Pledged property; pledge or any other encumbrance on the whole or part of the Pledged property created without the prior written consent by the Pledgee shall be null and void. |
| 8.2 | Without prior written notice to the Pledgee and the Pledgee’s prior written consent, the Pledgors shall not transfer the Pledged property, and any attempt by the Pledgors to transfer the Pledged property shall be null and void. The proceeds from transfer of the Pledged property by the Pledgors shall be used for the repayment in advance of the Guaranteed Liabilities or for escrow to a third party agreed to by the Pledgee. |
| 8.3 | In case of any litigation, arbitration or other demand which may have a detrimental effect on the interest of the Pledgors or the Pledgee under this Agreement or the Pledged property, the Pledgors undertakes to notify the Pledgee in writing in a timely manner and shall take, according to the reasonable requirements of the Pledgee, all necessary measures to ensure the pledge interest of the Pledgee in the Pledged property. |
| 8.4 | The Pledgors shall not conduct or permit any act or action which may have a detrimental effect on the interest of the Pledgee under this Agreement or the Pledged property. |
| 8.5 | The Pledgors guarantee that it shall, according to the reasonable requirements of the Pledgee, take all necessary measures and execute all necessary documents (including but not limited to supplementary agreement hereto) so as to ensure the pledge interest of the Pledgee in the Pledged property and the exercise and realization of such rights. |
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| 8.6 | In the event of any transfer of any Pledged property resulting from the exercise of the right to the pledge hereunder, the Pledgors guarantee that they shall take all necessary measures for the realization of such transfer. |
Article 9 Change of Circumstances
As supplement to and not in conflict with the other terms hereof, if at any time, any PRC Law is promulgated or changed, or the interpretation or application of such laws is changed, or the relevant registration procedures are changed, thereby rendering the Pledgee to believe that the continuous effectiveness of this Agreement and/or disposal of the Pledged property in the way provided herein shall be illegal or in conflict with such laws, the Pledgors shall, upon the written direction of the Pledgee and pursuant to its reasonable request, promptly take any action and/or execute any agreement or other document, so as to:
| (1) | ensure the effectiveness of this Agreement; |
| (2) | facilitate the disposal of the Pledged Property in the manner provided herein; and/or |
| (3) | maintain or realize the purpose hereof or the guarantee established in accordance herewith. |
Article 10 Effectiveness and Term of This Agreement
| 10.1 | This Agreement shall become effective upon the satisfaction of all of the following conditions: |
| (1) | this Agreement is duly executed by each of the Parties; and |
| (2) | the Equity Interest Pledge hereunder has been lawfully recorded in the shareholders register of the Company. |
The Pledgors shall provide the Pledgee with the registration certificate of the Equity interest pledge in the aforementioned shareholders register in the form satisfactory to the Pledgee.
| 10.2 | This Agreement shall remain valid until the full performance of the Contractual Obligations or the full discharge of the Guaranteed Liabilities. |
Article 11 Notices
| 11.1 | Any notice, request, demand and other correspondence required by or made in accordance with this Agreement shall be in writing and delivered to the relevant Party. |
| 11.2 | The above notice or other correspondence shall be deemed to have been delivered upon delivery when it is transmitted by facsimile or telex; or upon handover to the receiver when it is delivered in person; or on the fifth (5) day after posting when it is delivered by mail. |
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Article 12 Miscellaneous
| 12.1 | The Pledgee may, upon notice to the Pledgors, and without consent from the Pledgors, assign the Pledgee’s rights and/or obligations hereunder to any third party; however, the Pledgors may not, without the Pledgee’s prior written consent, assign their rights, obligations or liabilities hereunder to any third party. Successors or permitted assigns (if any) of the Pledgors shall continue to perform the obligations of the Pledgors hereunder. The Pledgors shall cooperate with the Pledgee in timely handling the required change registration procedures. |
| 12.2 | This Agreement is made in Chinese in five (5) originals, with each Party retaining one original, and 2 originals to be used for the purpose of registration or filing. Additional originals (if necessary) may be increased accordingly for the purpose of registration or filing. |
| 12.3 | The execution, effectiveness, performance, amendment, interpretation and termination of this Agreement shall be governed by the PRC Law. |
| 12.4 | Any dispute arising hereunder and in connection herewith shall be settled through consultations between the Parties, and if no agreement regarding such dispute can be reached by the Parties within thirty (30) days upon its occurrence, such dispute shall be submitted to the Shanghai Sub-commission of China International Economic and Trade Arbitration Commission for arbitration in Shanghai in accordance with the arbitration rules thereof, and the arbitration award shall be final and binding on the Parties. |
| 12.5 | Any rights, powers and remedies granted to any Party by any provision herein shall not preclude any other rights, powers and remedies available to such Party in accordance with laws and other provisions hereunder, and the exercise of its rights, powers and remedies by a Party shall not preclude its exercise of any other rights, powers and remedies available to it. |
| 12.6 | No failure or delay by a Party in exercising any of its rights, powers and remedies hereunder or in accordance with law (hereinafter the “Rights”) shall be construed as a waiver of such Rights, and the waiver of any single or partial exercise of the Rights shall not preclude its exercise of such Rights in any other way and other Rights. |
| 12.7 | The headings of the Articles herein are for reference only, and in no circumstances shall such headings be used in or affect the interpretation of the provisions hereof. |
| 12.8 | Each provision contained herein shall be severable and separate from other provisions, and if at any time one or more provisions herein become invalid, illegal or unenforceable, the validity, legality or enforceability of the remaining provisions herein shall not be affected as a result thereof. |
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| 12.9 | Any amendments or supplements to this Agreement shall be in writing. Except for assignment by the Pledgee of its rights hereunder pursuant to Article 12.1, the amendments hereof or supplements hereto shall take effect only upon due execution by the Parties hereto. |
| 12.10 | Subject to Article 12.1 above, this Agreement shall be binding on the legal successors of the Parties. |
| 12.11 | At the even date with the date hereof, the Pledgors shall sign a power of attorney (as set out in Annex 2 hereto, hereinafter the “Power of Attorney”) to authorize any person designated by the Pledgee to sign on its behalf any and all necessary legal documents for the exercise by the Pledgee of its rights hereunder pursuant to this Agreement. Such Power of Attorney shall be kept by the Pledgee and, when necessary, the Pledgee may at any time submit the Power of Attorney to the relevant government authorities. |
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(SIGNATURE PAGE)
IN WITNESS WHEREOF, the Parties have caused this Equity interest pledge Agreement to be executed as of the date and at the place first above written.
▇▇▇▇ ▇▇
Signature: /s/ ▇▇▇▇ ▇▇
Ye Yuan
Signature: /s/ Ye Yuan
Reshuffle Technology (Shanghai) Co., Ltd.
(corporate seal)
[Seal: Reshuffle Technology (Shanghai) Co., Ltd.]
By: /s/ ▇▇▇ ▇▇▇▇
Name:
Title: authorized representative
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Annex 1:
Basic Information of the Company
Company name: Beijing Tixian Digital Technology Co., Ltd.
Registered address: Room 9960, 3# Building, ▇▇.▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇-▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
Registered capital: RMB 1 million
Legal representative: ▇▇▇▇ ▇▇
Equity structure:
| Shareholder name |
Contribution to registered capital |
Percentage of contribution |
Method of contribution | |||||
| ▇▇▇▇ ▇▇ |
RMB 950,000 | 95 | % | Money | ||||
| Ye Yuan |
RMB 50,000 | 5 | % | Money | ||||
| Total |
RMB 1 million | 100 | % | / | ||||
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Annex 2:
Form of the Power of Attorney
| I, | ▇▇▇▇ ▇▇, hereby irrevocably entrust , with his/her identity card number , to be my authorized agent to sign on my behalf all the legal documents necessary or desirable for Reshuffle Technology (Shanghai) Co., Ltd. to exercise its rights under the Equity interest pledge Agreement in respect of Beijing Tixian Digital Technology Co., Ltd. between it and me. |
| Signature: /s/ ▇▇▇▇ ▇▇ |
|
Date: |
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Annex 2:
Form of the Power of Attorney
| I, | Ye Yuan, hereby irrevocably entrust , with his/her identity card number , to be my authorized agent to sign on my behalf all the legal documents necessary or desirable for Reshuffle Technology (Shanghai) Co., Ltd. to exercise its rights under the Equity interest pledge Agreement in respect of Beijing Tixian Digital Technology Co., Ltd. between it and me. |
| Signature: /s/ Ye Yuan |
| Date: |
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