EXHIBIT 10.9
EQUITY PLEDGE AGREEMENT
between
QIAN CHENG WU YOU NETWORK INFORMATION TECHNOLOGY (BEIJING)
COMPANY LIMITED
and
FENG LEI AND WANG TAO
May 3, 2004
ARTICLE 1 CREATION OF PLEDGE ON THE PLEDGED EQUITIES.......................................... 3
ARTICLE 2 COVERAGE OF SECURITY................................................................ 4
ARTICLE 3 PLEDGED EQUITIES.................................................................... 4
ARTICLE 4 REPRESENTATIONS AND WARRANTIES BY PARTY B........................................... 4
ARTICLE 5 SPECIAL AGREEMENTS.................................................................. 6
ARTICLE 6 DISPOSAL OF THE PLEDGED EQUITIES.................................................... 8
ARTICLE 7 REGISTRATIONS....................................................................... 9
ARTICLE 8 TERM AND TERMINATION OF PLEDGE...................................................... 9
ARTICLE 9 TAXES AND FEES...................................................................... 9
ARTICLE 10 LIABILITIES FOR BREACH OF CONTRACT.................................................. 9
ARTICLE 11 FORCE MAJEURE....................................................................... 10
ARTICLE 12 NOTICE.............................................................................. 10
ARTICLE 13 DISPUTES RESOLUTIONS................................................................ 11
ARTICLE 14 MODIFICATIONS AND AMENDMENTS........................................................ 11
ARTICLE 15 SEVERABILITY........................................................................ 11
ARTICLE 16 JOINT AND SEVERABLE LIABILITY....................................................... 11
ARTICLE 17 APPENDIX............................................................................ 11
ARTICLE 18 MISCELLANEOUS....................................................................... 12
APPENDIX I PARTICULARS......................................................................... 13
APPENDIX II SHAREHOLDERS MEETING RESOLUTION..................................................... 14
APPENDIX III SHAREHOLDERS LIST FOR SHANGHAI RUN AN LIAN INFORMATION CONSULTING COMPANY LIMITED... 15
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EQUITY PLEDGE AGREEMENT
This EQUITY PLEDGE AGREEMENT (hereinafter referred to as "AGREEMENT") is made
and entered into on the 3rd day of May, 2004 by and between the following
parties:
PLEDGEE: Qian Cheng Wu You Network Information Technology (Beijing) Company
Limited, a wholly foreign owned enterprise duly established and validly existing
under the laws of the People's Republic of China, with its registered address at
Unit D, 32/F, China Merchant Tower, 118 Jian Guo Road, Chao Yang District,
Beijing ("PARTY A"); and
PLEDGOR: Mr. FENG LEI ("MICHAEL FENG")and Mr. WANG TAO ( FENG Lei and WANG Tao
hereinafter referred to as "PARTY B" collectively)
WHEREAS:
1. Party B are shareholders of Shanghai Run An Lian Information Consultancy
Company Limited ("RUN AN LIAN"), in where FENG Lei holds 80% equity
interest and WANG Tao holds 20% equity interest;
2. According to the Technical and Consulting Service Agreement entered into
by and between Party A and Run An Lian on May 3, 2004 (hereinafter
referred to as the "MASTER AGREEMENT"), Run An Lian shall engage Party A
as its exclusive technology provider, and shall pay the relevant service
fee to Party A. The term for the Master Agreement is ten (10) years;
3. In order to secure the performance of the obligations of Run An Lian under
the Master Agreement, Party B will pledge to Party A all the equity
interest it holds in Run An Lian, and Party A agrees to accept such
pledge.
NOW THEREFORE, with respect to the aforesaid pledge of equity, the Parties to
this Agreement hereby mutually agree through consultations as follows:
ARTICLE 1 CREATION OF PLEDGE ON THE PLEDGED EQUITIES
As a security for Run An Lian to perform all of its obligations under the Master
Agreement, Party B agrees to pledge to Party A 100% of the equity of Run An Lian
held by Party B ("PLEDGED EQUITIES"), and Party A agrees to accept from Party B
such pledge.
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ARTICLE 2 COVERAGE OF SECURITY
The pledge provided by Party B as a security shall cover the obligations under
the Master Agreement, penalties, compensations, the expenses for exercise of the
right of pledge, and all other payments payable.
ARTICLE 3 PLEDGED EQUITIES
Particulars for Party B, Run An Lian and the Pledged Equities are set out in
Appendix I hereto.
ARTICLE 4 REPRESENTATIONS AND WARRANTIES
4.1 Party A represents and warrants that:
4.1.1 Party A is a company incorporated and registered and duly
existing under the PRC laws;
4.1.2 Party A has the power and authorization to execute and perform
this Agreement. The execution and performance by Party A of this
Agreement are in compliance with the business scope, and the
articles of association or other incorporation documents of Party
A. Party A has obtained all necessary and appropriate approvals
and authorizations to execute and perform this Agreement;
4.1.3 The execution and performance by Party A of this Agreement are
not against any law or regulation, or any government approval,
authorization, notice or other government document, which is
binding upon or affects Party A, nor are such execution and
performance against any agreement concluded by Party A and any
third party, or any covenant made by Party A to any third party;
and
4.1.4 Upon the execution of this Agreement, this Agreement shall
constitute valid obligations of Party A which are enforceable
against Party A.
4.2 Party B represents and warrants that:
4.2.1 Run An Lian is a limited liability company organized and
registered and duly existing under the PRC laws, and has the
authorization to provide human resources service and Internet
content service;
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4.2.2 Party B has the power and authorization to execute and perform
this Agreement, and Party B has obtained all necessary and
appropriate approvals and authorizations to execute and perform
this Agreement;
4.2.3 Party B has obtained a resolution required for the execution of
this Agreement from the shareholders meeting of Run An Lian ,
which resolution is attached hereto as Appendix II;
4.2.4 The execution and performance by Party B of this Agreement are
not against any law or regulation, or any government approval,
authorization, notice or other government document, which is
binding upon or affects Party B, nor are such execution and
performance against any agreement concluded by Party B and any
third party, or any covenant made by Party B to any third party;
4.2.5 Upon the execution of this Agreement, this Agreement shall
constitute valid obligations of Party B enforceable against Party
B;
4.2.6 Party B has fully paid up all required capital contributions
according to the law in connection with the Pledged Equities and
has obtained the capital verification report issued by a
qualified accounting firm regarding the capital contributions;
4.2.7 As of the execution date of this Agreement, no currently valid
mortgage, pledge or any other security arrangements has been
created on the Pledged Equities;
4.2.8 As of the execution date of this Agreement, there is no offer
made by Party B to any third party to transfer the Pledged
Equities hereunder, nor is there any covenant made by Party B
with respect to any offer made by any third party to purchase the
Pledged Equities hereunder;
4.2.9 As of the execution date of this Agreement, there is no agreement
entered into by and between Party B and any third party to
transfer the Pledged Equities hereunder.
4.2.10 As of the execution date of this Agreement, there is no dispute,
litigation, arbitration, administrative procedures or any other
legal procedures in connection with Party B, Run An Lian and/or
the Pledged Equities, nor is there any potential dispute,
litigation, arbitration, administrative procedures or any other
legal procedures in connection with Party B, Run An Lian and/or
the Pledged Equities.
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ARTICLE 5 SPECIAL AGREEMENTS
5.1 From the date of this Agreement to the date when Run An Lian fully
performs its obligations under the Master Agreement (hereinafter referred
to as "PLEDGE TERMINATION DATE"), Party B shall not conduct any of the
following without the prior written consent of Party A:
5.1.1 create any mortgage, pledge or other security arrangement on the
Pledged Equities;
5.1.2 take any actions which may hamper Party A's rights against the
Pledged Equities or any of Party A's rights under this Agreement;
5.1.3 Party B shall not transfer the Pledged Equities or otherwise
dispose of any rights in the Pledged Equities without the written
consent of Party A; or
5.1.4 Party B undertakes that, without the prior written consent of
Party A, Party B shall not take any actions or omissions that may
materially affect the assets, business or liabilities of Run An
Lian.
5.2 To avoid any depreciation of the Pledged Equities due to the operation of
Run An Lian, before Party B decides on any of the following matters, a
prior written consent shall be obtained from Party A:
5.2.1 profit distributions;
5.2.2 increase or decrease of the registered capital;
5.2.3 issuance of bonds;
5.2.4 merge, split up or any change in the form of the entity;
5.2.5 dissolution and liquidation;
5.2.6 any change of the business scope;
5.2.7 amendment of the articles of association;
5.2.8 borrowing from any third party or assumption of any indebtedness
to any third party in the name of Run An Lian; and
5.2.9 appointment of the member of the board of Run An Lian.
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Party B further agrees that Party A shall recommend the candidates of the
general manager and other senior executives of Run An Lian and Party B
shall cause the board of directors to appoint the general manager and
other senior executives only from those candidates recommended by Party A.
5.3 Party B hereby irrevocably grants Party A and/or the company or individual
designated by Party A the option to purchase Party B's equity interest in
Run An Lian ("OPTION") as follows:
5.3.1 To the extend permitted under PRC laws, Party A and/or the
company or individual designated by Party A shall exercise the
Option, in whole or in part, at any time during the term of this
Agreement to acquire from Party B and hold the equity interest of
Run An Lian. Upon the full exercise of the Option, Party A and/or
the company or individual designated by Party A will acquire from
Party B and hold 100% of the equity . In the event that the then
applicable PRC laws prohibit Party A and/or the company or
individual designated by Party A from fully exercising the
Option, Party A and/or the company or individual designated by
Party A shall exercise the Option to the fullest extent permitted
by the applicable law. The Option price shall be the lowest price
permitted under the applicable laws.
5.3.2 Upon the exercise of the Option by Party A and/or the company or
individual designated by Party A, Party B is obligated to
transfer the relevant equity to Party A and/or the company or
individual designated by Party A.
5.3.3 Party B hereof agrees that, without the written consent of Party
A, it will not grant a third party the same or similar option.
5.3.4 Party A and/or the company or individual designated by Party A
shall exercise the Option in a manner permitted by law at any
time after the date of this Agreement. To the extent permitted
under PRC laws, Party A and/or the company or individual
designated by Party A may exercise the Option, in whole or in
part, and at one time or otherwise purchase the equity that it
has the right to purchase under this Agreement.
5.3.5 When Party A and/or the company or individual designated by Party
A exercises the Option, it shall issue Party B an Option Notice
with respect to the exercise of such Option. Once the Option
Notice is issued, Party B shall promptly perform its obligation
to transfer such equity to Party A and/or the company or
individual designated by Party A.
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5.3.6 Party B shall, within 60 days following the issuance of the
Option Notice by Party A and/or the company or individual
designated by Party A to Party B, complete all procedures and
formalities necessary for Party A and/or the company or
individual designated by Party A to acquire the relevant equity
and become the legal holder of such equity .
ARTICLE 6 DISPOSAL OF THE PLEDGED EQUITIES
6.1 In case of occurrence of any one or several of the following events during
the term of the pledge hereunder, Party A shall have the right to dispose
of the Pledged Equities under this Agreement in accordance with the law
and this Agreement:
6.1.1 Run An Lian is in default under the Master Agreement;
6.1.2 Run An Lian breaches any provisions contained herein,
6.1.3 Pledgor breaches any representation, warranty or covenant it
makes under Article 4 and Article 5 hereof;
6.1.4 Run An Lian suspends its operations or is dissolved, or is
ordered to suspend its operations or to dissolve, or is declared
insolvent;
6.1.5 Run An Lian is involved in any dispute, litigation, arbitration,
administrative procedures or any other legal procedures which, in
the opinion of Party A, are capable of affecting the performance
of the Master Agreement and/or this Agreement; or
6.1.6 other occurrences stipulated by relevant laws and regulations.
6.2 Upon the occurrence of any one or several of the above events, and subject
to the relevant laws and regulations, Party A shall have the right to
dispose of the Pledged Equities in any one or several of the following
manners:
6.2.1 convert the Pledged Equities into value;
6.2.2 auction or sale of the Pledged Equities;
6.2.3 in other manners permitted by the relevant laws and regulations.
6.3 The proceeds received by Party A by disposing of the Pledged Equities
hereunder according to the foregoing provisions shall be used in the
following priority:
6.3.1 to pay for all necessary taxes and fees incurred due to the
disposal of the Pledged Equities;
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6.3.2 to pay for amounts payable by Run An Lian to Party A under the
Master Agreement within the coverage set forth in Article 2
hereof, and amounts payable to Party A due to breach of this
Agreement by Party B; and
6.3.3 the remaining proceeds after all the above payments have been
made shall be refunded to Party B.
6.4 At the time of the disposal of the Pledged Equities by Party A and upon
request of Party A, Party B shall provide all relevant documents requested
by Party A and Party A's agents, complete and assist Party A in completing
the procedures for all approvals of and registration with the government
authority in connection with the disposal of the Pledged Equities.
ARTICLE 7 REGISTRATIONS
At the same time of the execution of this Agreement, the Pledged Equities under
this Agreement shall be recorded on the shareholders list of the Run An Lian as
set out in Appendix III hereto.
ARTICLE 8 TERM AND TERMINATION OF PLEDGE
8.1 The Pledge Term shall commence on the effective date of this Agreement,
ending on the day when Run An Lian complete sthe performance of all of its
obligations under the Master Agreement.
8.2 The pledge of the Pledged Equities shall be automatically terminated upon
the expiration of the aforesaid Pledge Term. The termination of the pledge
shall be recorded on the shareholders list of Run An Lian.
ARTICLE 9 TAXES AND FEES
All taxes and fees incurred by the Parties hereto due to the execution and
performance of this Agreement shall be borne by the Parties in accordance with
the relevant provisions of PRC laws.
ARTICLE 10 LIABILITIES FOR BREACH OF CONTRACT
10.1 In the event of any loss suffered by one Party hereto due to any breach of
this Agreement by the other Party, such defaulting Party shall be liable
pursuant to
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the law for all losses thus caused to the non-defaulting Party.
10.2 Any allowance, grace period and deferred exercise of the rights entitled
under this Agreement granted by one Party in connection with the other
Party's default or delay shall not be deemed as a waiver by such Party of
any of its rights.
ARTICLE 11 FORCE MAJEURE
11.1 For the purpose of this Agreement, a force majeure event shall refer to
government act, fire, explosion, typhoon, flood, earthquake, tide,
lightning, war, or any event which is unforeseeable by and beyond the
control of any Party (hereinafter referred to as a "FORCE MAJEURE EVENT").
If any Force Majeure Event occurs to any Party hereto, such Party shall
notify the other Party in a timely manner.
11.2 In the event of any Force Majeure Event, no Party shall be held liable for
any damage, loss or increased cost caused by its failure of or delay in
the performance of this Agreement due to such Force Majeure Event, and
such failure of or delay in the performance of this Agreement due to any
Force Majeure Event shall not be deemed as a breach of this Agreement. The
Party affected by a Force Majeure Event shall take appropriate measures to
set off or minimize the effects of such Force Majeure Event, and shall
exert its best efforts to perform any of its obligation the performance of
which has been prevented or delayed due to such Force Majeure Event. The
Parties hereto agree that, upon termination of such Force Majeure Event,
they shall exert their best efforts to perform this Agreement.
ARTICLE 12 NOTICE
All notices hereunder shall be either delivered by personal delivery or via
facsimile or registered mail. A notice, if sent by registered mail, shall be
deemed to have been served on the date of the receipt as specified on the return
receipt of the registered mail, or if sent by personal delivery or via
facsimile, shall be deemed to have been served on the date immediately following
the date on which such notice is sent. If a notice is sent via facsimile, the
original of such notice shall be sent by registered mail or by personal delivery
immediately after the transmission.
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ARTICLE 13 DISPUTES RESOLUTIONS
13.1 If any dispute arises from the interpretation and performance of this
Agreement, the Parties hereto shall first settle such dispute through
friendly consultations. Should such dispute fail to be settled through the
consultations, either Party may submit such dispute to China International
Economic and Trade Arbitration Commission ("CIETAC") for arbitration. The
arbitration shall be conducted in Beijing according to the then applicable
arbitration rules of CIETAC. The arbitration award shall be final and
binding upon both Parties.
13.2 In the event of any dispute arising out of the interpretation and
performance hereof or if any such dispute is under arbitration, each Party
hereto shall continue to exercise its other rights and perform its other
obligations under this Agreement not subject to the disputes.
ARTICLE 14 MODIFICATIONS AND AMENDMENTS
This Agreement may be modified or supplemented by written agreement between the
Parties hereof. Any amendment agreement and/or supplementary agreement concluded
between the Parties hereto regarding this Agreement shall be an integral part of
this Agreement and shall have the same force.
ARTICLE 15 SEVERABILITY
The invalidity of any provisions under this Agreement shall not affect the
validity of other provisions hereunder.
ARTICLE 16 JOINT AND SEVERABLE LIABILITY
FENG Lei and WANG Tao shall, jointly and severally, be liable for the
obligations under this Agreement.
ARTICLE 17 APPENDIX
Appendixes attached to this Agreement shall constitute an integral part of this
Agreement and shall have the same force.
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ARTICLE 18 MISCELLANEOUS
The Parties have caused their respective duly authorized representatives to
execute this Agreement and affixed their respective company seal hereto on the
day and year first written above. This Agreement shall become effective on the
date when the pledge has been recorded on the shareholders list of Run An Lian.
This Agreement shall be written in three (3) counterparts, each of Party A and
Party B shall hold one counterpart. All counterparts shall have the same force.
PARTY A (PLEDGEE): QIAN CHENG WU YOU NETWORK INFORMATION TECHNOLOGY (BEIJING)
COMPANY LIMITED
Authorized representative: ____________________
PARTY B (PLEDGOR): FENG LEI
_______________________________
FENG LEI
_______________________________
WANG TAO
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APPENDIX I PARTICULARS
Pledgor: FENG Lei
Nationality: China
Address: Apt.#2003, Building 10 Fangchengyuan I Area, Fengtai District, Beijing
Telephone: 8610-13901189904
Pledgor: WANG Tao
Nationality: China
Address: Apt# 18F, Building 9 Century Town, Yuanda Road, Haidian District,
Beijing
Telephone: 8610-13910688175
Run An Lian:
Enterprise Name: Shanghai Run An Lian Information Consultancy Company Limited
Establishment Date: April 8, 2004
Registered Address: Room 735, 710 Changping Road, Shanghai, China
Shareholders: Mr. FENG Lei and Mr. WANG Tao, where Mr. FENG Lei holds 80% equity
interest of Run An Lian, and Mr. WANG Tao holds 20% equity interest.
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APPENDIX II RESOLUTION OF SHAREHOLDERS MEETING OF SHANGHAI RUN AN LIAN
INFORMATION CONSULTANCY COMPANY LIMITED
The shareholders meeting of Shanghai Run An Lian Information Consultancy Company
Limited (the "Company") made this resolution as follows with unanimous vote with
respect to the Equity Pledge Agreement entered into by and between the
shareholders of the Company and Qian Cheng Wu You Network Information Technology
(Beijing) Company Limited on May 3, 2004.
Resolved and approved that the shareholders of the Company pledge 100% equity of
the Company to Qian Cheng Wu You Network Information Technology (Beijing)
Company Limited.
This Shareholders Meeting Resolution is executed by and submitted to the
following shareholders on May 3, 2004:
SHAREHOLDER:
_______________________________
SHAREHOLDER:
_______________________________
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APPENDIX III SHAREHOLDERS LIST FOR SHANGHAI RUN AN LIAN INFORMATION
CONSULTING COMPANY LIMITED
Proportionate
Shareholder Contribution Particulars of Shareholder Shareholder Pledge Registration
- ----------- ------------- ----------------------------------------------------- ------------------------------------------------
FENG Lei 80% Nationality: China In accordance with the Equity Pledge Agreement
entered into by and between FENG Lei and WANG
Address: Apt.#2003, Building 10 Fangchengyuan I Area, Tao and Qian Cheng Wu You Network Information
Fengtai District, Beijing Technology (Beijing) Company Limited. dated
May 3, 2004, FENG Lei has pledged all of his
Telephone: 8610-13901189904 equity in Run An Lian to Qian Cheng Wu You
Network Information Technology (Beijing)
Company Limited. The registration date for the
Equity Pledge shall be the execution date of
such Equity Pledge Agreement.
WANG Tao 20% Nationality: China In accordance with the Equity Pledge Agreement
entered into by and between FENG Lei and WANG
Address: Apt# 18F, Building 9 Century Town, Tao and Qian Cheng Wu You Network Information
Yuanda Road, Haidian District, Beijing Technology (Beijing) Company Limited. dated as
of May 3, 2004, WANG Tao has pledged all of
his equity in Run An Lian to Qian Cheng Wu You
Telephone: 8610-13910688175 Network Information Technology (Beijing)
Company Limited. The registration date for the
Equity Pledge Agreement shall be the execution
date of such Equity Pledge Agreement.
SHANGHAI RUN AN LIAN INFORMATION CONSULTANCY COMPANY LIMITED (SEAL)
LEGAL REPRESENTATIVE: ___________________________
SHAREHOLDER: ____________________________________
SHAREHOLDER: ___________________________________
DATE: MAY 3, 2004