THIS PLEDGE OF SHARES is made on the 4th day of April, 2005
BY CHINA INTERACTIVE (SINGAPORE) PTE. LTD., a company incorporated under the laws of Singapore with its registered office situate at 45 Sam Leong Road,Singapore 207935 (the Pledgor) to GAMENOW.NET (HONG KONG) LIMITED, a company incorporated under the laws of the Hong Kong Special Administrative Region of the Peoples Republic of China (HongKong) with its registered office situate at 22nd Floor, Hang Lung Centre, 2-20 Paterson Street, CausewayBay, Hong Kong (the Pledgee).
WHEREAS, the Pledgor is the legal and beneficial owner of 12,099,455 (31.1%) fullypaid Ordinary Shares of par value HK$1.00 in the capital of China The9 Interactive Limited, a company incorporated under the laws of Hong Kong whose registered office is at 7/F 80 Gloucester Road, Wan Chai, Hong Kong (theCompany), particulars of the said Ordinary Shares are set forth in the Schedule annexed hereto (the Pledged Shares);
WHEREAS, at the request of the Pledgor, the Pledgee had agreed to provide a loan in the principal amount of United States Dollars Six Million (US$6,000,000) (the Loan) to the Pledgor and in thisconnection, (a) the Pledgor as borrower has entered into a loan agreement dated the date hereof (the Loan Agreement, and the terms defined therein and not otherwise defined herein shall be used herein as therein defined) withthe Pledgee as lender and (b) as a condition precedent to the advance of the Loan pursuant to the Loan Agreement, the Pledgor has also granted to the Pledgee an option to purchase the Pledged Shares together with all bonus shares and othershares, warrants, options, rights and interests derived therefrom or in exchange therefor from time to time (the Option); and
WHEREAS, the Pledgor has agreed to make a pledge of the Pledged Shares to secure its obligations under the Loan Agreement.
NOWTHEREFORE, in consideration of the premises and in order to induce the Pledgee to make the Loan under the Loan Agreement, the Pledgor hereby agrees as follows:
ThePledgor hereby pledges to the Pledgee, and grants to the Pledgee a security interest in, the Pledged Shares and the certificates representing the Pledged Shares, and all dividends, bonus shares, cash, instruments and other property from time to timereceived, receivable or otherwise distributed in respect of or in exchange for any or all of the Pledged Shares.
2.Security for Obligations
This Pledge secures the due and timely performance of all of its obligations now or hereafter existingunder the Loan Agreement, whether for principal, interest, fees, expenses, other payment obligation or otherwise (collectively, the Obligations).
3. Delivery of Pledged Shares
All certificates or instruments representing or evidencing the Pledged Shares shall be delivered to and held by or on behalf of the Pledgee pursuant hereto and shall be in suitable form for transfer by delivery, orshall be accompanied by duly executed instrument of transfer (or assignment) and the contract note in blank, all in form and substance satisfactory to the Pledgee. The Pledgee shall have the right, at any time in its discretion subject to priorwritten notice having been given to the Pledgor, to transfer to or to register in the name of the Pledgee or any of its nominees any or all of the Pledged Shares, subject only to the revocable rights specified in Clause 6(a) hereof.
4. Representations and Warranties
The Pledgor represents and warrants to the Pledgee as follows:
|(a)||the Pledged Shares have been duly authorized and validly issued and are fully paid up;|
|(b)||the Pledged Shares are free and clear of any lien, security interest, option or other charge or encumbrance except for the security interest created by this Pledge;|
|(c)||the Pledged Shares constitute 31.1% of the total issued share capital of the Company;|
|(d)||the Pledgor is the sole legal and beneficial owner of the Pledged Shares;|
|(e)||this Pledge creates a valid and perfected first priority security interest in the Pledged Shares securing the payment and performance of the Obligations;|
|(f)||no authorization, approval, or other action by, and no notice to or filing with, any governmental authority or regulatory body is required for this Pledge by the Pledgor or for theexecution, delivery or performance of this Pledge by the Pledgor;|
|(g)||the execution, delivery and performance by the Pledgor of this Pledge is within its powers and do not contravene any law or contractual restriction binding on or affecting thePledgor.|
5. Further Assurances
The Pledgor agrees that at any time and from time to time, it shall, at its own expense, promptly execute and deliver all further instruments anddocuments, and take all further action, that may be necessary or desirable, or that the Pledgee may request, in order to perfect and protect any security interest granted or purported to be granted hereby or to enable the Pledgee to exercise andenforce its rights and remedies hereunder with respect to the Pledged Shares.
6. Voting Rights, Dividends, etc
(a) So long as no Event of Default (as defined in the Loan Agreement) shall have occurred:
|(i)||the Pledgor shall be entitled to exercise any and all voting and other consensual rights pertaining to the Pledged Shares or any part thereof for any purpose not inconsistent withthe terms of this Pledge or the Loan Agreement or the Option; provided, however, that the Pledgor shall not exercise or refrain from exercising any such right, or shall exercise such right in such manner as the Pledgee may direct, if,in the Pledgees judgment, such action would have an adverse effect on the value of the Pledged Shares or any part thereof; and provided, further, that the Pledgor shall give the Pledgee at least five (5) days writtennotice in advance of the manner in which it intends to exercise, or the reasons for refraining from exercising, any such right;|
|(ii)||the Pledgor shall be entitled to receive and retain any and all dividends paid in respect of the Pledged Shares, provided, however, that any and all (A) dividendspaid or payable other than in cash in respect of, and instruments and other property received, receivable or otherwise distributed in respect of, or in exchange for, any Pledged Shares, and (B) dividends and other distributions paid or payablein cash in respect of any Pledged Shares in connection with a partial or total liquidation or dissolution or in connection with a reduction of capital, capital surplus or paid-in-surplus,|
shall be, and shall be forthwith delivered to the Pledgee to hold as, part of the pledged collateralhereunder and shall, if received by the Pledgor, be received in trust for the benefit of the Pledgee, be segregated from the other property or funds of the Pledgor, and be forthwith delivered to the Pledgee as part of the pledged collateralhereunder in the same form as so received (with any necessary indorsement);
|(iii)||the Pledgee shall execute and deliver (or cause to be executed and delivered) to the Pledgor all such proxies and other instruments as the Pledgor may reasonably request for thepurpose of enabling the Pledgor to exercise the voting and other rights which it is entitled to exercise pursuant to paragraph (i) above and to receive the dividends which it is authorized to receive and retain pursuant to paragraph(ii) above.|
(b) Upon the occurrence and during the continuance of an Event of Default (as defined in the LoanAgreement):
|(i)||all rights of the Pledgor to exercise the voting and other consensual rights which it would otherwise be entitled to exercise pursuant to Clause 6(a)(i) and to receive the dividendswhich it would otherwise be authorized to receive and retain pursuant to Clause 6(a)(ii) shall cease, and all such rights shall thereupon become vested in the Pledgee which shall thereupon have the sole right to exercise such voting and otherconsensual rights and to receive and hold as Pledged Shares such dividends;|
|(ii)||all dividends which are received by the Pledgor contrary to the provisions of paragraph (i) of this Clause 6(b) shall be received in trust for the benefit of the Pledgee, shallbe segregated from other funds of the Pledgor and shall be forthwith paid over to the Pledgee as Pledged Shares in the same form as so received (with any necessary indorsement).|
7. Transfers and Other Liens; Additional Shares
(a) The Pledgor agrees that it shall not (i) sell or otherwise dispose of, or grant any option with respect to, any of the Pledged Shares, or (ii) create or permit to exist any lien, security interest, orother charge or encumbrance upon or with respect to any of the Pledged Shares, except for the rights granted to the Pledgee pursuant to the Option and the security interest created by and under this Pledge.
(b) Save with the prior written consent of the Pledgee at its absolute discretion, the Pledgor will exercise its rights as shareholder of the Company toensure that the Company will not create or issue any shares, options, warrants or other securities in addition to or in substitution for the Pledged Shares.
8. Pledgee Appointed Attorney-in-Fact
The Pledgor hereby appoints the Pledgee as its attorney-in-fact, with full authority in the place and stead of the Pledgor and in the name of the Pledgor or otherwise, from time to time in the Pledgeesdiscretion to take any action and to execute any instrument which the Pledgee may deem necessary or advisable to accomplish the purposes of this Pledge, including, without limitation, (i) to receive any money or payment made payable to thePledgor representing any dividend or other distribution in respect of the Pledged Shares or any part thereof and to give full discharge for the same, by giving receipt or otherwise, (ii) to indorse and collect all instruments in the names ofthe Pledgor, (iii) to sign and execute any instruments and to do any act to give effect to the transfer of the Pledged Shares in the exercise by the Pledgee of its rights under Clause 3 hereof, (iv) to convene meeting of shareholders ofthe Company, and to vote thereat in the capacity of the shareholders holding the Pledged Shares, to remove any existing director(s) of the Company and appoint replacements thereof.
9. Pledgee May Perform
If the Pledgor fails to perform any agreement contained herein, the Pledgee may itself perform, or cause performance of, such agreement, and the expensesof the Pledgee incurred in connection therewith shall be payable by the Pledgor in the same manner as provided for in Clause 13 hereof.
10. Reasonable Care
The Pledgee shall be deemed to have exercised reasonable care in the custody andpreservation of the Pledged Shares in its possession if the Pledged Shares are accorded treatment substantially equal to that which the Pledgee accords its own property, it being understood that the Pledgee shall not have any responsibility for(i) ascertaining or taking action with respect to calls, conversions, exchanges, maturities, tenders or other matters relative to the Pledged Shares, whether or not the Pledgee has or is deemed to have knowledge of such matters, or(ii) taking any necessary steps to preserve rights against any parties with respect to the Pledged Shares.
11.Remedies upon Default
If any Event of Default shall have occurred (in this connection a written confirmation issued by the Pledgeeas to the occurrence of an Event of Default shall be conclusive evidence thereof and the Pledgor agrees that it will not dispute the legality, validity or enforceability of the Loan Agreement), the Pledgee may exercise in respect of the PledgedShares all rights and remedies provided for herein or otherwise available to it by law, including, without limitation, the right to sell the Pledged Shares at public or private sale, at any exchange or at any of the Pledgees offices orelsewhere, for cash, on credit or for future delivery, and upon such other terms as the Pledgee may deem commercially reasonable (for the avoidance of doubt, the Pledgee is not obliged to procure or accept the highest offer and shall not be liablefor any failure to exercise its rights aforesaid or in the aforesaid manners). The Pledgor undertakes to the Pledgee that it will procure the Company to register such transfer of the Pledged Shares and the name of the transferee of such PledgedShares as the shareholder of the Company. The Pledgor agrees that any cash held by the Pledgee as part of the pledged collateral hereunder and all cash proceeds received by the Pledgee in respect of any sale of, collection from, or other realizationupon the Pledged Shares may, in the discretion of the Pledgee, be held by the Pledgee as collateral for, and/or then or at any time thereafter applied (after payment of any amounts payable to the Pledgee pursuant to Clause 13 hereof and all costs)in whole or in part by the Pledgee against, all or any part of the Obligations in such order and manners as the Pledgee shall at its sole discretion elect. Any surplus of such cash or cash proceeds held by the Pledgee and remaining after payment infull of all the Obligations shall be paid over to the Pledgor or to whomsoever may be lawfully entitled to receive such surplus.
12. Amendments, etc.
No amendment or waiver of any provision of this Pledge nor consent to any departure by the Pledgorherefrom, shall in any event be effective unless the same shall be in writing and signed by the Pledgee, and then such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given.
ThePledgor shall upon demand pay the amount of any and all reasonable expenses, including all taxes and duties, government imposes, levy, reasonable fees and expenses of its counsel, which the Pledgee may incur in connection with (i) the sale of,collection from, or other realization upon, the Pledged Shares, (ii) the exercise or enforcement of any of the rights of the Pledgee hereunder, or (iii) the failure by the Pledgor to perform or observe any of the provisions hereof.
Any notice or other communication to be given under this Pledge shall be in writing and may be sent by post or delivered by hand or given by facsimile orby courier to the address or fax number from time to time designated, the initial addresses so designated by each party are set out at the beginning of this Pledge. Any such notice or communication shall be sent to the party to whom it is addressedand must contain sufficient reference and/or particulars to render it readily identifiable with the subject matter of this Pledge. If so delivered by hand or given by facsimile such notice or communication shall be deemed received on the date ofdespatch, and if delivered by courier, shall be deemed received two (2) business days (meaning a day, excluding Saturdays, on which licensed banks in Hong Kong are generally open for normal banking business) after the date of despatch, and ifso sent by post, shall be deemed received three (3) business days after the date of despatch (in the case of local mail or delivery by courier) and five (5) business days after the date of despatch (in the case of overseas mail).
15. Continuing Security Interest; Transfer of Loan
This Pledge shall create a continuing security interest in the Pledged Shares and shall (i) remain in full force and effect until payment andperformance in full of the Obligations, (ii) be binding upon the Pledgor, its successors and assigns, and (iii) inure to the benefit of the Pledgee and its successors, transferees and assigns. Without limiting the generality of theforgoing sub-clause (iii), the Pledgee may assign or otherwise transfer all or any of its rights and/or obligations under this Pledge to any other person or entity, and such other person or entity shall thereupon become vested with all the benefitsin respect thereof granted to the Pledgee herein or otherwise. Upon the payment and performance in full of the Obligations, the Pledgor shall be entitled to the return, upon its request and at its sole expense, of the Pledged Shares together withsuch blank instrument of transfer deposited with the Pledgee provided that such Pledged Shares and blank instrument of transfer shall not have been sold or otherwise applied pursuant to the terms hereof.
16. Additional Security
The rights and interest of the Pledgee under this Pledge are in addition to and not in substitution for any other guarantee, indemnity, security, options, rights or remedies (whether arising by law or contractually) which the Pledgee mayhold now or in the future for the performance of the Obligations and may be enforced without prior recourse to any such guarantee, indemnity, security, options, rights or remedies and without taking any other action or proceedings.
The Pledgor agrees and undertakes to indemnify and keep the Pledgee indemnified against all and any losses, damages, costs and expenses reasonably incurred by the Pledgee arising from or in connection with any failure by the Pledgor to makethe payment and perform the Obligations or from any breach of the warranties and representations in Clause 4 hereof.
If any provision of this Pledge is held to be illegal, invalid or unenforceable under the law of the applicablejurisdiction by any competent court of such jurisdiction, then such provision shall, to the extent it is illegal, invalid or unenforceable, have no effect and is deemed not to be included herein. The illegality, invalidity or unenforceability of anyprovision of this Pledge under the law of any jurisdiction shall not affect its legality, validity or enforceability under the law of any other jurisdiction nor the legality, validity or enforceability of any other provision. In such event, thePledgor shall use its best genuine endeavours to come to an agreement with the Pledgee to modify or supplement such provision in such manner so as to make such provision valid, legal and enforceable or if so
requested by the Pledgee, the Pledgor shall take such action or deed or enter into such other agreements with the Pledgeeso as to provide the Pledgee with similar rights and interests as those granted herein.
19. No Waiver
No failure or delay by any party to this Pledge in exercising any right, power or remedy under this Pledge shall operate as a waiver thereof, nor shallany single or partial exercise of the same preclude any further exercise thereof or the exercise of any other right, power or remedy. If at any time any provision of this Pledge is or becomes illegal, invalid or unenforceable in any respect, thelegality, validity and enforceability of the remaining provisions of this Pledge shall not be affected or impaired thereby.
20. Governing Law and Jurisdiction
(a) This Pledge shall be governed by and construed in accordance with the laws of HongKong.
(b) The parties hereto irrevocably submit to the non-exclusive jurisdiction of the Hong Kong courts in respect of this Pledge andthe transactions contemplated by this Pledge.
(c) The Pledgor irrevocably appoints the Company as its process agent to receive and acceptfrom time to time at the registered office of the Company, for or on behalf of the Pledgor, service of process in the proceedings in Hong Kong. Such service shall be deemed completed on delivery to the Company (whether or not it is forwarded to andreceived by the Pledgor). If for any reason the Company ceases to be able to act as such or no longer has an address in Hong Kong, the Pledgor shall forthwith appoint a substitute process agent acceptable to the Pledgee, and to deliver to thePledgee a copy of the new process agents acceptance of that appointment, within seven (7) days. Until such time as the Pledgor appoints a substitute process agent, the Company shall be the process agent of the Pledgor in the meantime andservice on the Comapny pursuant to this Clause shall be effective.
IN WITNESS WHEREOF the parties hereto have caused this SharePledge to be duly executed the day and year first above written.
|SEALED with the common seal||)|
|and SIGNED by Ong Toon Wah||)|
|director, for and on behalf of||)|
|China Interactive (Singapore) Pte. Ltd.||)|
|in the presence of:-||)|
|SIGNED by Jun ZHU||)|
|director, for and on behalf of||)|
|GameNow.net (Hong Kong) Limited||)|
|in the presence of:-|
|Share Issuer:||China The9 Interactive Limited, a company incorporated in Hong Kong|
|Class of Share:||Ordinary Share|
|Number of Shares:||12,099,455|
|Share Certificate(s) no(s).:||No. 5 [Company chop of China Interactive(s) Pte., Ltd.]|