EQUITY PLEDGE AGREEMENT Regarding LongSheng Horticulture Technology Co., Ltd. between ZHAO Guang and Shenzheng Zhihao Dongbo Technology Ltd. Dated this 10 day of March, 2010
Dandong
Longsheng
__________________________________________________________
EQUITY
PLEDGE AGREEMENT
Regarding
LongSheng
Horticulture Technology Co., Ltd.
__________________________________________________________
between
▇▇▇▇
▇▇▇▇▇
and
Shenzheng
Zhihao Dongbo Technology Ltd.
Dated
this 10 day of March, 2010
Dandong
Longsheng
Equity
Pledge Agreement
This
Equity Pledge Agreement (the “Agreement”) is entered into in
Dandong, Liaoning Province, the People’s Republic of China (the “PRC”) as of this 10 day of
March, 2010 by and between the following parties:
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(1)
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▇▇▇▇ ▇▇▇▇▇ (hereinafter
referred to as the “Pledgor”)
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Identity
Card Number: 2323301968080846111; and
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(2)
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Shenzheng Zhihao Dongbo
Technology Ltd. (hereinafter referred to as the “Pledgee”)
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Legal
Address:
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32E,
CaiHuiGe, Rainbow New City, Caitian Road, Futian District,
Shenzhen.
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(In this
Agreement, the Pledgor and Pledgee are collectively referred to as the “Parties” and individually as a
“Party”)
Whereas:
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(1)
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The
Pledgor is the enrolled shareholder of LongSheng Horticulture Technology
Co., Ltd. (its business licence number is 210604004005136, and hereinafter
referred to as the “Company”), lawfully
holding the equities of the Company, and, as of the date hereof, the
Pledgor holds all shares of the Company (the “Company
Equity”).
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(2)
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The
Pledgor and the Pledgee entered into the Call Option and Cooperation
Agreement as of this 10 day of March,
2010.
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(3)
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The
Pledgee and the Company entered into the Exclusive Technical Support and
Service Agreement as of this 10 day of March,
2010.
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(4)
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As
the guarantee by the Pledgor and the Company for their performance of the
Contract Obligation (as defined below) and repayment of the Guaranteed
Liabilities (as defined below), the Pledgor agrees to pledge all of its
Company Equity to the Pledgee, and grant herewith to the Pledgee the right
of first priority.
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Therefore,
the Parties hereby agreed as follows:
Clause
1 -
Definition
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1.1
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Unless
otherwise required by the context, the following terms in this Agreement
shall have the following meanings:
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“Contract Obligations” shall
mean all contractual obligations of the Pledgor under the Call Option and
Cooperation Agreement and this Agreement; and all contractual obligations of the
Company under the Exclusive Technical Support and Service
Agreement.
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Dandong
Longsheng
“Guaranteed Liabilities” shall
mean (i) all monetary payment obligations of the Pledgor and/or the Company
under any transaction agreement, (ii) all direct, indirect and derivative losses
and loss of foreseeable profits suffered by the Pledgee due to any Breaching
Event (as defined below) of the Pledgor and/or the Company, and (iii) all fees
incurred by the Pledgee for its enforcement of the Contractual Obligations of
Pledgor and/or the Company.
“Transaction Agreement” means
the Call Option and Cooperation Agreement and the Exclusive Technical Support
and Service Agreement.
“Breaching Event” means any
breach by the Pledgor and/or the Company of any Contract
Obligations.
“Pledged Property” shall mean
(i) all Company Equity to be pledged to the Pledgee according to this Agreement
as a guarantee for (a) the performance of Contract Obligations and (b) the
repayment of Guaranteed Liabilities, which is lawfully owned by the Pledgor as
of the date hereof; and (ii) the increased contribution amounts and interests
specified in Clauses 2.6 and 2.7 hereof.
“PRC Law” means the laws,
administrative regulations, administrative rules, local regulations, judicial
interpretations and other binding regulatory documents of the People’s Republic
of China then in effect.
“Equity Pledge” shall have the
meaning set out in Clause 2.2 hereof.
“Party’s Right” shall have the
meaning set out in Clause 12.7 hereof.
“Power of Attorney” shall have
the meaning set out in Clause 12.13 hereof.
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1.2
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Reference
to any PRC Law herein shall be construed as including references
to:
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(1)
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the
revise, amendment, supplement and reenactment of such law, irrespective of
whether they come into force prior or after the formation of this
Agreement; and
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(2)
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other
decisions, notices or regulations enacted in accordance therewith or
effective as a result thereof.
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1.3
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Unless
otherwise stated in the context herein, references to any clause, item or
paragraph shall refer to the relevant part of this
Agreement.
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2.1
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The
Pledgor hereby agrees to pledge the Pledged Property (that it lawfully
owns and is entitled to dispose of) to the Pledgee in accordance with this
Agreement as the guarantee for the performance of the Contract Obligations
and the repayment of the Guaranteed
Liabilities.
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2.2
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The
Company shall record the arrangement of equity pledge hereunder (the
“Equity Pledge”)
on the shareholder register of the
Company.
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2.3
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With
the term of this Agreement, except for the willful misconduct or gross
negligence (which is directly related as cause/result to the consequence)
of the Pledgee, the Pledgee shall not be liable in any way to, nor shall
the Pledgor have any right to claim in any way or propose any demands on
the Pledgee, in respect of the reduction in value of the Pledged
Property.
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2.4
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Subject
to above Clause 2.3, in case of any possibility of obvious reduction in
value of the Pledged Property which is sufficient to jeopardize Pledgee’s
rights, the Pledgee may at any time auction or sell off the Pledged
Property on behalf of the Pledgor to use the proceeds from such auction or
sale-off as pre-repayment of the Guaranteed Liabilities, or may submit
such proceeds to the local notary institution where the Pledgee is
registered (any fees arising therefrom shall be borne by the
Pledgor).
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2.5
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In
case of any breaching Event, the Pledgee shall be entitled to dispose of
the Pledged Property in the manner set out in Clause 4
hereof.
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2.6
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Without
the prior consent of the Pledgee, the Pledgor shall not increase its
capital contribution to the Company. The increase contribution amount of
the Pledgor in the Company as a result of the foresaid capital increase
shall also be a part of the Pledged
Property.
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2.7
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Under
the precondition that the prior consent of the Pledgee has been obtained,
the Pledgor may receive dividends or share profits from the Pledged
Property. Such dividends or share profits received by the Pledgor from the
Pledged Property shall be deposited into the account designated by the
Pledgee and be under the supervision of the Pledged. Such dividends or
share profits shall be used as the Pledged Property to repay in priority
the Guaranteed Liabilities.
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2.8
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The
Pledgee shall have the right to dispose of any Pledged Property of the
Pledgor in accordance with this Agreement in case of a Breaching
Event.
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Clause
3 -
Release of Pledge
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3.1
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After
the Pledgor and the Company has fully and completed performed all
Contractual Obligations and repaid all Guaranteed Liabilities, the Pledgee
shall, at request of the Pledgor, release the pledge hereunder and
cooperate with the Pledgor to remove the record of Equity Pledge in the
shareholder register of the Company. Reasonable fees arising out of the
release of the pledge shall be borne by the
Pledgee.
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Dandong
Longsheng
Clause
4 -
Disposition of Pledged Property
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4.1
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The
Pledgor and the Pledgee hereby agree that, in case of any Breaching Event,
the Pledgee shall have the right to exercise, upon giving written notice
to the Pledgor, all of its remedies and powers granted to it by the PRC
Law, Transaction Agreements and this Agreement, which includes 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
arising out of its reasonable exercise of such rights and
powers.
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4.2
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The
Pledgee has the right to designate in writing its legal counsel or other
agents to exercise any and all rights and powers set out above on its
behalf, and the Pledgor shall not make any object
thereto.
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4.3
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Reasonable
costs incurred by the Pledgee in connection with its exercise of any and
all rights and powers set out in Clauses 4.1 and 4.2 shall be borne by the
Pledgor, and the Pledgee shall have the right to deduct such costs from
the proceeds it acquires from the exercise of such rights and
powers.
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4.4
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The
proceeds obtained by the Pledgee from exercise of its rights and powers
shall be used in the following
orders:
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4.4.1 to
pay any cost incurred in connection with the disposition of Pledged Property and
to exercise of the Pledgee’s rights and powers (including fees paid to its
lawyer and agent);
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4.4.2
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to
pay any taxes payable for the disposition of the Pledged Property;
and
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4.4.3 to
repay the Guaranteed Liabilities to the Pledgee.
In case
of any balance remained after payment of above sums, the Pledgee shall return
the same to the Pledgor or other persons entitled thereto according to relevant
laws and rules, or submit the same to the local notary public where the Pledgee
is located.
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4.5
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The
Pledgee shall have the option to exercise, simultaneously or in certain
sequence, any remedies for breaching of the contract entitled to it. The
Pledgee is not obliged to exercise other remedies for breaching of the
contract before it exercises its right to auction or sell off the Pledged
Property hereunder.
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Clause
5 -
Fees and Costs
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5.1
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All
actual costs in connection with the creation of the Equity Pledge
hereunder (including but not limited to stamp duty, any other taxes, all
legal costs, etc.) shall be borne by the
Pledgee.
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Dandong
Longsheng
Clause
6 -
Continuity and No Waiver
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6.1
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The
Equity Pledge created hereunder is a continuous guarantee and shall be
valid until the full performance of Contract Obligations or the full
repayment of Guaranteed Liabilities. If the Pledgee waives or gives grace
period for any breach of the agreement by Pledgor, or if the Pledgee
delays in exercising any of its rights under the Transaction Agreements or
this Agreement, the Pledgee’s rights to require the Pledgor and/or the
Company to strictly perform the Transaction Agreement and this Agreement
in accordance with this Agreement, the Transaction Agreements and the
relevant PRC Law and regulations shall not be
affected.
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Clause
7 -
Representations and Warranties
The
Pledgor hereby represents and warrants to the Pledgee as
follows:
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7.1
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The
Pledgor is a PRC citizen with full capacity of disposition. He has full
and independent legal status and capacity and has obtained due
authorization to execute, deliver and perform this Agreement, and can be a
litigant party independently.
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7.2
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The
Pledgor has full power and authorization to execute and deliver this
Agreement as well as other documents relating to the transaction
contemplated hereunder and to be executed by him. The Pledgor also has
full power and authorization to complete the transaction contemplated
herein.
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7.3
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All
reports, documents and information in relation to (i) the Pledgor and (ii)
all matters required by this Agreement that have been provided by the
Pledgor to the Pledgee before this Agreement comes into effect are true
and correct in all material
aspects.
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7.4
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All
reports, documents and information in relation to (i) the Pledgor and (ii)
all matters required by this Agreement to be provided by the Pledgor to
the Pledgee after this Agreement has come into effect are true and correct
in all material aspects.
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7.5
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When
this Agreement comes into force, the Pledgor is the sole lawful owner of
the Pledged Property free of any existing dispute in the ownership of the
Pledge Property. The Pledgor has the right to dispose of the Pledged
Property or any part thereof.
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7.6
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Other
than the encumbrance created on the Pledged Property hereunder and the
rights under the Transaction Agreements, the Pledged Property is free of
any other encumbrance or third party
interest.
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7.7
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At
the time of effectiveness of this Agreement, the Pledged Property can be
pledged or transferred in accordance with laws, and the Pledgor has
sufficient rights and powers to pledge the Pledged Property to the Pledgee
pursuant to this Agreement.
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Dandong
Longsheng
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7.8
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By
executing this Agreement, this Agreement shall constitute the legal, valid
and binding obligations on the
Pledgor.
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7.9
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Any
consent, permission, waiver, authorization, or any governmental approval,
license, exemption or filing procedures with any governmental agency (if
required by laws) which are necessary for the execution and performance of
this Agreement as well as the Equity Pledge hereunder have been duly
obtained or processed and will remain effective during the valid term of
this Agreement.
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7.10
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The
Pledgor’s execution and performance of this Agreement are not in violation
of or conflict with any (i) laws applicable to it, (ii) any agreements to
which it is a party, or which have binding force upon its assets, or (iii)
any court judgment, arbitration award, or decisions made by administrative
authorities.
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7.11
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The
pledge contemplated hereunder shall constitute the encumbrance of the
first order in priority on the Pledged
Property.
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7.12
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All
taxes and fees payable in connection with the acquisition of the Pledged
Property have already been paid by the Pledgor in
full.
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7.13
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There
is no pending or, to the knowledge of the Pledgor, threatened litigation,
legal proceeding or request by any court or any arbitral tribunal against
the Pledgor, its assets or the Pledged Property that may cause material or
adverse effect on the financial condition of the Pledgor or its capability
to perform the obligations hereunder and Guaranteed
Liabilities.
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7.14
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The
Pledgor hereby warrants to the Pledgee that above representations and
warranties shall remain true and correct at any time and under any
circumstances before the Contract Obligations are fully performed or the
Guaranteed Liabilities are fully repaid, and will be complied with to the
fullest extent.
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Clause
8 -
Undertakings
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8.1
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Undertakings
by the Pledgor
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The
Pledgor hereby undertakes to the Pledgee as follows:
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8.1.1
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Without
the prior written consent of the Pledgee, the Pledgor shall not create or
permit to create any new pledge or other encumbrances on the Pledged
Property. Any Pledge or other encumbrances created in respect of the whole
or part of the Pledged Property without prior written consent of the
Pledgee shall be null and void.
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8.1.2
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Without
prior written consent of the Pledgee, the Pledgor shall not transfer the
Pledged Property (whether a consideration is obtained therefrom or not),
and any proposed transfer of the Pledge Property by the Pledgor shall be
null and void. The prices obtained by the Pledgor from transferring the
Pledged Property shall be used to repay the Guaranteed Liabilities in
first priority.
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Dandong
Longsheng
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8.1.3
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In
case of any litigation, arbitration or other demand that may adversely
affect the Pledged Property or the interests of the Pledgor or the Pledgee
under the Transaction Agreements as well as this Agreement, the Pledgor
shall assure that it will notify the Pledgee thereof in writing as soon as
practicable and, at the request of the Pledgee, take all necessary
measures to ensure the interests of the Pledgee in/on the Pledged
Property.
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8.1.4
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The
Pledgor shall not conduct or permit any act or action that may affect
detrimentally the Pledged Property or the Pledgee’s interest under the
Transaction Agreements and
hereunder.
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8.1.5
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The
Pledgor undertakes that, upon the reasonable request of the Pledgee, it
shall take all necessary actions and execute all required documents
(including but not limited to any supplementary agreement hereof) to
ensure the pledge interest of the Pledgee over the Pledged Property and
the exercise and realization of such
rights.
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8.1.6
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In
case an assignment of the Pledge Property is required for exercising the
pledge right hereunder, the Pledgor undertakes that it shall take all
actions to realize such assignment.
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Clause
9 -
Change of Circumstances
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9.1
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As
a supplement hereof, and subject to the terms and conditions set out in
this Agreement and the Transaction Agreements, if, at any time, the
Pledgee believes that it becomes illegal or conflict with the following
laws, regulations or rules to maintain the effectiveness hereof and/or to
dispose of the Pledged Property in accordance with this Agreement due to
(i) promulgation or change of any PRC Law, regulations or rules, (ii)
change in the interpretation or application of such laws, regulations and
rules, (iii) change of the relevant registration procedures, the Pledgor
shall immediately take any action and / or execute any agreement or other
documents according to the written instruction and reasonable requirement
of the Pledgee, in order to:
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(1)
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keep
this Agreement effective;
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(2)
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facilitate
the disposition of Pledged Property in the way provided herein;
and/or
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(3)
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maintain
or realize the intention of this
Agreement.
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Clause
10 - Effectiveness and Term
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10.1
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This
Agreement shall come into force upon the satisfaction of all following
conditions:
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7
Dandong
Longsheng
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(1)
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This
Agreement has been duly executed by the Parties;
and
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(2)
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The
Equity Pledge hereunder has been legally recorded in the shareholders’
register of the Company.
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The
Pledgor shall cooperate with the Pledgee to register the Equity Pledge hereunder
with competent equity-pledge registration authority within thirty (30) days
following the execute date hereof, and shall provide the relevant registration
certificate of the Equity Pledge to the Pledgee in the way satisfactory to the
Pledgee.
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10.2
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This
Agreement shall be valid until the complete performance of Contract
Obligation and the full repayment of Guaranteed
Liabilities.
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Clause
11 - Notice
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11.1
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Any
notice, request, requirement or other communications hereunder shall be
made in writing and delivered to the relevant receiving
Party.
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11.2
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Above
notices or other communications shall be deemed to have been given when
(i) it is sent out if sent by facsimile or email, or (ii) when it is
delivered if deliver by person, or (iii) five (5) days following post if
posted by mail.
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Clause
12 - Miscellaneous
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12.1
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The
Pledgee may transfer its rights and/or obligations hereunder to any third
party by notifying the Pledgor without the Pledgor’s consent, however,
without the Pledgee’s prior written consent, the Pledgor shall not
transfer any of its rights, obligations or liabilities hereunder to any
third party.
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12.2
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The
successor or permitted transferee (if any) of the Pledgor shall continue
to perform all obligations of the Pledgor
hereunder.
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12.3
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The
amount of the Guaranteed Liabilities determined by the Pledgee at the time
of exercising its pledge right to the Pledged Property according to this
Agreement shall be the conclusive evidence of Guaranteed Liabilities
hereunder.
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12.4
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This
Agreement is prepared in Chinese and shall be executed in four (4)
originals. Each Party hereto shall hold one (1) original hereof. The
number of originals hereof may be increased accordingly for the purpose of
registration or filing (if
necessary).
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12.5
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This
Agreement shall be governed by and construed in accordance with the PRC
Laws.
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12.6
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Any
dispute arising out of or in connection with this Agreement shall be
settled by the Parties through friendly consultation. If no agreement has
been reached within thirty (30) days following the occurrence of such
dispute, it shall be submitted to the competent court for
resolution.
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Dandong
Longsheng
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12.7
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Any
right, power or remedy granted to either Party under any provisions herein
shall not preclude any other rights, powers or remedies that a Party may
be entitled to in accordance with laws or other provisions hereof. A
Party’s exercise of its rights, powers or remedies shall not preclude it
from exercising other rights, powers or remedies granted to such
Party.
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12.8
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Any
failure or delay by a Party in exercising any of its rights, powers and
remedies hereunder or in accordance with laws (the “Party’s Rights”) shall
not be deemed as a waiver thereof, and any single or partial exercise of
the Party’s Rights shall not preclude such Party from (i) further exercise
of such rights and (ii) exercise of other Party’s
Rights.
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12.9
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The
headings of this Agreement are for easy reference only and shall not be
used for or affect the interpretation hereof in any
circumstances.
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12.10
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Each
provision hereunder shall be severable and independent from each other,
and, if any provision(s) hereunder has been held invalid, illegal or
unenforceable at any time, the validity, legality and enforceability of
the remaining provision shall not be affected
thereby.
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12.11
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Any
amendment or supplement to this Agreement shall be made in writing. No
amendment or supplement to this Agreement shall be effective without duly
signed by the Parties, save for the Pledgee’s transfer of its rights
hereunder according to Clause 12.1.
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12.12
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Subject
to above Clause 12.1, this Agreement shall be binding upon the lawful
successor of each Party.
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12.13
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At
the same time of the execution hereof, the Pledgor shall sign a power of
attorney (the sample of which is set out in Appendix 2 hereto, hereinafter
referred to as the “Power
of Attorney”) to authorize any person appointed by the Pledgee to
sign on behalf of the Pledgor any and all legal documents necessary for
enabling the Pledgee to exercise its rights hereunder. Such Power of
Attorney shall be delivered to and be kept by the Pledgee, and, when
necessary, the Pledgee may submit such Power of Attorney to relevant
governmental authorities at any
time.
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[THE
REMAINDER OF THE PAGE IS INTENTIONALLY LEFT BLANK]
9
Dandong
Longsheng
Share
Pledge Agreement
[EXECUTION
PAGE]
IN WITNESS WHEREOF, the
following Parties have caused this Equity Pledge Agreement to be executed as of
the date and in the place first written above.
▇▇▇▇
▇▇▇▇▇
Signed
by : _________________
Shenzheng
Zhihao Dongbo Technology Ltd.
(company
seal)
Signed
by : _________________
Name:
Title:
▇▇
▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇
Share
Pledge Agreement
Appendix
1
Basic Information of the
Company
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Company
name
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:
LongSheng Horticulture Technology Co., Ltd.
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Registered
address
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:
Group1, Longsheng Village, Shancheng Town, ZhenAn District, Dandong,
LiaoNing Province
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|
|
Registered
capital
|
:
RMB100,000
|
|
|
Equity
structure
|
:
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|
Name of Shareholder
|
Capital Contribution
|
Equity Share
|
||||
|
▇▇▇▇
▇▇▇▇▇
|
RMB100,000
|
100 | % | |||
11
Dandong
Longsheng
Share
Pledge Agreement
Appendix
2
Power
of Attorney
I, ▇▇▇▇
▇▇▇▇▇ (identity card number: 2323301968080846111), hereby irrevocably appoint
any person designated by Shenzheng Zhihao Dongbo Technology Ltd. as my
authorized representative to sign on my behalf all legal documents necessary for
or in connection with enabling Shenzheng Zhihao Dongbo Technology Ltd. to
exercise its rights under the Equity Pledge Agreement Concerning LongSheng
Horticulture Technology Co., Ltd. between it and myself.
Signature:
_________________
Date:
_____________________
12