EX-10.8
17
dex108.htm
AMENDED AND RESTATED
EQUITY INTEREST PLEDGE AGREEMENT, DATED AS OF SEPTEMBER 27
Exhibit 10.8
AMENDED AND RESTATED
EQUITY INTEREST PLEDGE AGREEMENT
This Amended and Restated Equity Interest Pledge Agreement (this “Agreement”) is entered in Beijing, the People’s Republic of China
(“PRC”, excluding the Hong Kong Special Administrative Region, the Macao Special Administrative Region and Taiwan, for the purposes of this Agreement) and dated 27 September, 2010 by and among the following parties:
| (1) | PLEDGEE: 1VERGE INTERNET TECHNOLOGY (BEIJING) CO., LTD. |
Legal Address: Section A and C, 5/F, SinoSteel Plaza, ▇▇ ▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇
Legal Representative: ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇
and
| (2) | PLEDGORS: ▇▇▇ ▇▇▇▇▇ and ▇▇▇ ▇▇▇▇ |
(individually a
“Party” and collectively the “Parties”)
WHEREAS:
| A. | ▇▇▇ ▇▇▇▇▇ and ▇▇▇ ▇▇▇▇ are PRC citizens, and respectively own an 80% and 20% equity interest in Jiaheyi Advertising (Beijing) Co., Ltd. (“Jiaheyi”).
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| B. | Jiaheyi is a limited liability company registered in Beijing engaging in the advertising agency and publishing businesses. |
| C. | The Pledgors and the Pledgee entered into an Amended and Restated Loan Agreement on 16 August 2010(the “Loan Agreements”), pursuant to which the
Pledgee extended a loan in an aggregated amount of RMB 80,000 to ▇▇▇ ▇▇▇▇▇ and RMB20,000 to ▇▇▇ ▇▇▇▇ (collectively, the “Loans”). |
| D. | The Pledgee, a wholly foreign-owned company registered in Beijing, PRC, has been licensed by the PRC relevant government authority to carry on the business of computer software
products and Internet products development, sale and services, etc. Jiaheyi entered into an Amended and Restated Exclusive Technical and Consulting Services Agreement (the “Services Agreement”) and the Pledgee on
16 August 2010, pursuant to which Jiaheyi is required to pay service fee (the “Service Fee”) to the Pledgee in consideration of the corresponding services to be provided by the Pledgee. |
| E. | The Pledgors have also entered into an Amended and Restated Equity Option Agreement (the “Option Agreement”) with the Pledgee, pursuant to which each of the
Pledgors grants to the Pledgee an exclusive right to purchase the Equity Interest (as defined below). |
| F. | In order to ensure that (i) the Pledgors repay the Loans under the Loan Agreement; (ii) the Pledgee collects Service Fees under the Services Agreement from Jiaheyi,
(iii) the Pledgors’ other obligations under the Option Agreement are fulfilled, and (iv) all other debts, monetary liabilities or other payment obligations owed to the Pledgee by the Pledgors and/or Jiaheyi, arising under or in
relation to the Services Agreement or the Loan Agreement, including, but not limited to, any obligation to pay damages for a breach of any obligation of the Pledgors or Jiaheyi under the Loan Agreement or the Services Agreement (as applicable), are
paid, the Pledgors are willing to pledge all the Equity Interest (as defined below) in Jiaheyi to the Pledgee as security for the above-mentioned obligations of the Pledgors and Jiaheyi (collectively, the “Secured Obligations”).
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In order to set forth each Party’s rights and obligations, the Pledgee and the Pledgors through mutual negotiations hereby enter
into this Agreement based upon the following terms:
Unless otherwise provided
in this Agreement, the following terms shall have the following meanings:
| | 1.1 | “Pledge” means the full content of Section 2 hereunder. |
| | 1.2 | “Equity Interest” means all the equity interests in Jiaheyi held by the relevant Pledgor (including all present and future rights and benefits based on such
equity interests), and any additional equity interests in Jiaheyi acquired by such Pledgor subsequent to the date hereof. For the avoidance of any doubt, on the date hereof, ▇▇▇ ▇▇▇▇▇ holds an 80% equity interest (amounting to RMB80,000) and ▇▇▇
▇▇▇▇ holds a 20% equity interest (amounting to RMB 20,000) in Jiaheyi. |
| | 1.3 | “Event of Default” means any event in accordance with Section 6 hereunder. |
| | 1.4 | “Notice of Default” means the notice of default issued by the Pledgee in accordance with this Agreement. |
this Agreement
shall be effective upon its being signed by the Parties hereunder. Notwithstanding the foregoing, the Pledge (as defined in Section 2.1) shall only come into effect in accordance with Section 3 of this Agreement.
| | 2.1 | Each Pledgor hereby pledges, and if required, transfers and assigns all his/her rights, titles and interests in the Equity Interest in Jiaheyi to the Pledgee as security for all
of the Secured Obligations (the “Pledge”) of an amount up to the Maximum Amount (as defined below), and grant a first priority security interest in all rights, titles and interests that he/she has or may at any time hereafter
acquire in and to the Equity Interest, together with all equity or other ownership interests representing a dividend on the Equity Interest, a distribution or return of capital upon or in respect of such Equity Interest, any subscription, first
refusal, pre-emptive or other purchase rights with respect to or arising from such Equity Interest, any voting rights with respect to such Equity Interest or any other interest which, by reason of notice or lapse of time or the occurrence of other
events, may be converted into a direct equity interest in Jiaheyi, and all proceeds of the foregoing (collectively, the “Pledged Collateral”). |
| | 2.1.1 | The Parties understand and agree that the monetary valuation arising from, relating to or in connection with the Secured Obligations shall be a variable and floating valuation
until the Settlement Date (as defined below). Therefore, based on the reasonable assessment and evaluation by the Pledgors and the Pledgee of the Secured Obligations and the Pledged Collateral, the Pledgors and the Pledgee mutually acknowledge and
agree that the Pledge shall aggregately secure the Secured Obligations for a maximum amount of RMB 31,000,000 (the “Maximum Amount”) prior to the Settlement Date. |
The Pledgors and the Pledgee may, taking into account the fluctuation in the monetary value of the Secured Obligations and the Pledged Collateral,
adjust the Maximum Amount based on mutual agreement by amending and supplementing this Agreement, from time to time, prior to the Settlement Date.
| | 2.1.2 | Upon the occurrence of any of the events below (each an “Event of Settlement”), the Secured Obligations shall be fixed at a value of the sum of all Secured
Obligations that are due, outstanding and payable to the Pledgee on or immediately prior to the date of such occurrence (the “Fixed Obligations”): |
| | (a) | any or all of the Loan Agreements, Services Agreements or the Option Agreements expires or is terminated pursuant to the stipulations thereunder; |
| | (b) | the occurrence of an Event of Default pursuant to Section 6 that is not resolved, which results in the Pledgee serving a Notice of Default to the relevant Pledgor(s)
pursuant to Section 6.3; |
| | (c) | the Pledgee reasonably determines (having made due enquiries) that any of the Pledgors and/or Jiaheyi is insolvent or could potentially be made insolvent; or
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| | (d) | any other event that requires the settlement of the Secured Obligations in accordance with relevant laws of the PRC. |
| | 2.2 | For the avoidance of doubt, the day of the occurrence of an Event of Settlement shall be the settlement date (the “Settlement Date”). On or after the Settlement
Date, the Pledgee shall be entitled, at the election of the Pledgee, to enforce the Pledge in accordance with Section 7. |
| | 2.3 | The Pledgee is entitled to collect dividends or other distributions, if any, arising from the Equity Interest during the Term of the Pledge (as defined below).
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| 3. | Effectiveness of Pledge, Scope and Term |
| | 3.1 | The Pledgors shall, promptly after the execution of this Agreement, register this Agreement and the Pledge hereunder with the State Administration for Industry and Commerce of
the PRC or its competent local counterpart (the “AIC”). The Pledgors shall deliver to the Pledgee a copy of the registration or filing certificate from the AIC within 7 days from the date of submission of the application for
registration of this Agreement and Pledge with the AIC. |
| | 3.2 | The Pledge shall be effective upon the registration of the Pledge with the AIC in accordance with Section 3.1 above. The term of the Pledge shall commence on the date when
the Pledge is registered with the AIC and shall expire on the earlier of (a) the date on which all outstanding Secured Obligations are paid in full or otherwise satisfied (as applicable) or (b) the Pledgee enforces the Pledge pursuant to
the terms and conditions hereof, to satisfy its rights under the Secured Obligations and Pledged Collateral in full (the “Term of the Pledge”). |
| 4. | Representations and Warranties of the Pledgors |
Each of the Pledgors hereby makes the following representations and warranties to the Pledgee and confirms that the Pledgee executes this Agreement in reliance on such representations and warranties:
| | 4.1 | Each of the Pledgors is the legal owner of the Equity Interest that has been registered in his/her name, and is entitled to create a pledge on such Equity Interest.
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| | 4.2 | None of the Pledged Collateral or the Pledge will be interfered with by any other parties at any time once the Pledgee exercises the rights of the Pledge in accordance with this
Agreement. |
| | 4.3 | The Pledgee shall be entitled to dispose or assign the Pledge in accordance with the relevant laws and this Agreement. |
| | 4.4 | All necessary authorizations have been obtained for the execution and performance of this Agreement by each of the Pledgors and the execution and performance of this Agreement by
each of the Pledgors does not violate any applicable laws or regulations. The representative of each of the Pledgors who signs this Agreement is lawfully and effectively authorized. |
| | 4.5 | Each of the Pledgors warrants that there is no on-going civil, administrative or criminal litigation or administrative punishment or arbitration related to the Equity Interest
and is not aware of any such action pending or likely to be pending in the future as of the date of this Agreement. |
| | 4.6 | There are no outstanding taxes, fees or undecided legal procedures related to the Equity Interest as of the date of this Agreement. |
| | 4.7 | Each stipulation hereunder is the expression of each Party’s true intention and shall be binding upon all the Parties. |
| 5. | Covenants of the Pledgors |
| | 5.1 | Each of the Pledgors covenants to the Pledgee that he/she shall: |
| | 5.1.1 | not transfer or assign the Equity Interest, or create or permit to be created any pledge, lien, charge, mortgage, encumbrance, option, security or other interest in or over the
Equity Interest that has been registered in his/her name, other than the Pledge created hereunder and the option granted under the Option Agreement, without the prior written consent from the Pledgee; |
| | 5.1.2 | comply with and implement laws and regulations with respect to the pledge of rights, present to the Pledgee the notices, orders or suggestions with respect to the Pledge issued
or made by the competent authority within 5 days upon receiving such notices, orders or suggestions and take actions in accordance with the reasonable instructions of the Pledgee; and |
| | 5.1.3 | timely notify the Pledgee of any events or any received notices (i) which may affect the Equity Interest or any part of the Pledgee’s rights, (ii) which may change
the Pledgors’ covenants or obligations under this Agreement or (iii) which may affect the Pledgors’ performance of their obligations under this Agreement, and take actions in accordance with the reasonable instructions of the Pledgee.
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| | 5.2 | The Pledgors agree that the Pledgee’s right of exercising the Pledge under this Agreement shall not be suspended or hampered by the Pledgors or any successors of the
Pledgors or any person authorized by the Pledgors. |
| | 5.3 | The Pledgors jointly and severally covenant to the Pledgee that in order to protect or perfect the security over the Secured Obligations, the Pledgors shall (i) execute in
good faith and cause other parties who have interests in the Pledge to execute all the forms, instruments, agreements (including those required for the registration and de-registration of the Pledge with the AIC), and/or (ii) take actions and
cause other parties who have interests in the Pledge to take actions as required by the Pledgee and (iii) allow the Pledgee to exercise the rights and authorization vested in the Pledgee under this Agreement. |
| | 5.4 | The Pledgors agree to promptly make or cause to be made any filings or records, give or cause to be given any notices and take or cause to be taken any other actions as may be
necessary under the laws of the PRC, to perfect the Pledge of the Pledged Collateral, including the AIC registration set forth in Section 3.1. |
| | 5.5 | Each of the Pledgors covenants to the Pledgee that he/she 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 the Pledgee for such Pledgor’s failure to perform or fully perform his/her guarantees, covenants, agreements, representations or conditions. |
| | 6.1 | Each of the following shall constitute an Event of Default: |
| | 6.1.1 | Any of the Pledgors and/or Jiaheyi fails to make full and timely payment of any amounts due under the Secured Obligations as required under the Services Agreement, Loan Agreement
or Option Agreement, or an event of default (as defined and stipulated in those agreements) has occurred and is continuing; |
| | 6.1.2 | any of the Pledgors makes or has made any inaccurate, incomplete, misleading or untrue representations or warranties under Section 4, or is in violation or breach of any of
the representations and warranties under Section 4; |
| | 6.1.3 | any of the Pledgors breaches any of the covenants under Section 5; |
| | 6.1.4 | any of the Pledgors breaches any other covenants, undertakings or obligations of the Pledgors set forth herein; |
| | 6.1.5 | any of the Pledgors is unable to perform its obligations under this Agreement due to the separation or merger of Jiaheyi with other third parties or for any other reason;
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| | 6.1.6 | any of the Pledgors relinquishes all or any part of the Pledged Collateral or transfers or assigns all or any part of the Pledged Collateral without the prior written consent of
the Pledgee (except the transfers or assigns permitted under the Option Agreement); |
| | 6.1.7 | any indebtedness, guarantee or other obligation of any of the Pledgors and/or Jiaheyi, whether pursuant to a contract or otherwise, (i) is accelerated as a result of a
default thereunder and is required to be repaid or performed prior to the due date; or (ii) has become due and is not repaid or performed when due which, in the Pledgee’s reasonable view, has materially adversely affected the
Pledgor’s ability to perform their obligations under this Agreement; |
| | 6.1.8 | this Agreement is illegal as a result of any applicable laws or any of the Pledgors is restricted from continuing to perform his/her obligations under this Agreement;
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| | 6.1.9 | any approval, permit, license or authorization from any applicable governmental entity (or registration or filing procedure) required for Jiaheyi to engage in the advertising
agency and publishing businesses in the PRC is withdrawn, suspended, invalidated or materially amended; |
| | 6.1.10 | any approval, permit, license or authorization from any applicable government authority required to perform this Agreement or make this Agreement enforceable, legal and valid is
withdrawn, suspended, invalidated or materially amended; or |
| | 6.1.11 | any property owned by the Pledgor is altered or damaged which, in the Pledgee’s reasonable view, has materially adversely affected the Pledgor’s ability to perform
their obligations under this Agreement. |
| | 6.2 | The Pledgors shall immediately give a written notice to the Pledgee if any of the Pledgors is aware or find that any event set forth in Section 6.1 or any events that may
result in the foregoing events have occurred or are occurring. |
| | 6.3 | Unless an Event of Default set forth in Section 6.1 has been rectified to the Pledgee’s satisfaction, the Pledgee, at any time the event of default occurs or
thereafter, may give a written notice of default to any or both Pledgors, and require such Pledgor(s) and/or Jiaheyi, at the discretion of the Pledgee, to immediately make full payment of the outstanding amounts payable under the Loan Agreements,
Services Agreements, and/or Option Agreements (as the case may be), and other payables, or dispose of the Pledge in accordance with Section 7 herein. |
| 7. | Exercise of the Rights of the Pledge |
| | 7.1 | The Pledgors shall not transfer or assign the Pledge without prior written approval from the Pledgee prior to the full settlement and fulfillment of the Secured Obligations.
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| | 7.2 | The Pledgee shall give a notice of default to the Pledgor(s) when the Pledgee exercises the rights of Pledge. |
| | 7.3 | Subject to Section 6.3, the Pledgee may exercise the right to dispose of the Pledge at any time when the Pledgee gives a notice of default in accordance with
Section 6.3 or thereafter. |
| | 7.4 | The Pledgee is entitled to have priority in receiving proceeds from the auction or sale of all or part of the Pledged Collateral in accordance with legal procedures until the
outstanding Secured Obligation or other monetary obligations payable by the Pledgors and/or Jiaheyi is fully paid, repaid or otherwise settled. |
| | 7.5 | 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 his
Pledge. |
| 8. | Transfer or Assignment |
| | 8.1 | The Pledgors shall not donate or transfer their rights and obligations herein to any third party without prior written consent from the Pledgee. |
| | 8.2 | This Agreement shall be binding upon the Pledgors and their successors and be effective to the Pledgee and his each successor and assignee. |
| | 8.3 | The Pledgee may transfer or assign all Secured Obligations and its right to the Pledge to any third party at any time. In this case, the assignee shall enjoy and undertake the
same rights and obligations herein of the Pledgee as if the assignee is a party hereto. When the Pledgee transfers or assigns the Secured Obligations and its rights to the Pledge, at the request of the Pledgee, the Pledgors shall execute the
relevant agreements and/or documents with respect to such transfer or assignment. |
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| | 8.4 | After a change to the Pledgee resulting from a transfer or assignment, the new parties to the pledge shall re-execute a pledge contract. |
This Agreement shall not
terminate until the Term of the Pledge expires pursuant to Section 3 herein.
| | 10.1 | 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 Section herein shall notify the other party of such exemption promptly and advice him of the steps to be taken for completion
of the performance. |
| | 10.2 | The Party 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. |
| 11. | Applicable Law and Dispute Resolution |
| | 11.1 | The execution, validity, performance and interpretation of this Agreement shall be governed by and construed in accordance with the laws of the PRC. |
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| | 11.2 | 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 then 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. This article shall not be affected by the termination or elimination of this Agreement.
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| | 11.3 | In case of any disputes arising out of the interpretation and performance of this Agreement or any pending arbitration of such dispute, each Party shall continue to perform their
obligations under this Agreement, except for the matters in dispute. |
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:
| | | | |
| PLEDGEE | | : | | 1VERGE INTERNET TECHNOLOGY (BEIJING) CO., LTD. |
| Address | | : | | Section A and C, 5/F, SinoSteel Plaza, ▇▇ ▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ |
| Fax | | : | | ▇▇▇▇▇▇▇▇▇▇▇▇ |
| Tele | | : | | 861058851881 |
| Addressee | | : | | ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ |
|
| ▇▇▇ ▇▇▇▇▇ |
| Address | | : | | ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇, ▇▇▇▇ ▇▇▇▇ International Apartment, ▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ |
| Fax | | : | | ▇▇▇▇▇▇▇▇▇▇▇▇ |
| Tele | | : | | 861058851881 |
| Addressee | | : | | QIN ▇▇▇▇▇ |
|
| ▇▇▇ Dele |
| Address | | : | | Room 1701, Tower D, Sunz Garden, ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ |
| Fax | | : | | ▇▇▇▇▇▇▇▇▇▇▇▇ |
| Tele | | : | | 861058851881 |
| Addressee | | : | | ▇▇▇ ▇▇▇▇ |
The appendices to this
Agreement constitute an integral part of this Agreement.
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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.
| | 15.1 | 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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| | 15.2 | In case any terms and stipulations in this Agreement are regarded as illegal or can not be performed in accordance with the applicable law, such terms and stipulations shall be
deemed to ineffective and not enforceable within the scope governed by the applicable law, and the remaining stipulations will remain effective. |
| | 15.3 | This Agreement amends and restates all Equity Interest Pledge Agreements entered into by and among the Pledgors and the Pledgee with respect to the Pledge of the Pledged
Collateral to the Pledgee as a security for any and all Secured Obligations (“Previous Agreements”). In the event of any discrepancy between this Agreement and any Previous Agreement, this Agreement shall prevail to the extent of
the discrepant provisions. |
[The space below is intentionally left blank.]
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IN WITNESS WHEREOF, the parties
hereto have caused this Agreement to be duly executed on their behalf by a duly authorized representative as of the date first written above.
PLEDGEE: 1VERGE INTERNET TECHNOLOGY (BEIJING) CO., LTD.
(Company Seal)
| | |
| By: | | /s/ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇
|
| Authorized Representative: ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ |
PLEDGOR:
▇▇▇ ▇▇▇▇▇
PLEDGOR: ▇▇▇ ▇▇▇▇
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