Exhibit 4.32
[Note: Translation from the original agreement written in Chinese]
Execution Copy
This Fifth Amended and Restated
Equity Interests Pledge Agreement (the “Agreement”) is entered into
on the day of June 11, 2010 by and between the following parties:
Pledgee: eLongNet Information Technology (Beijing) Co., Ltd.
Address: 00 Xxxxxxxxxxx Xxxx, Xxxxxxxx Xxxxxxxx, Xxxxxxx
Legal Representative: Xxxxxx Xxxx
Pledgor: Guangfu Cui
ID No.: 110108196902010857
Address: Xx.0, XxxxxXxxxxx Xxxxxx, Xxxxxxx Xxxxxxxx, Xxxxxxx
WHEREAS,
| (1) |
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Beijing Asia Media Interactive Advertising Co., Ltd. (hereinafter “Beijing Asia Media”) is a
company registered under the laws of the People’s Republic of China (hereinafter
“China”). Beijing Asia Media is qualified to engage in the adverting
business; |
| (2) |
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Pledgee and Beijing Asia Media entered into an Exclusive Advertising Technical Consulting and
Services Agreement, dated February 1, 2001, a Supplementary Agreement of Exclusive Advertising
Technical Consulting and Services Agreement, dated August 22, 2003, and an amended and
restated Service Agreement, dated July 20, 2004, (hereafter, the “Service Agreement”), in
which the Pledgee agreed to have the exclusive right to provide Beijing Asia Media with
advertising technical services and operating technical services for advertising on
xxx.xxxxx.xxx; |
| (3) |
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The Pledgee and Beijing Asia Media signed an Trademark License Agreement (“Trademark License
Agreement”) on July 20, 2004, according to which the Pledgee agrees that Beijing Asia Media
shall use certain trademarks; |
| (4) |
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The Pledgee and Beijing Asia Media entered into a Fifth Amended and Restated Business
Operation Agreement (“Business Operation Agreement”) on June 11, 2010. According to the
agreement, Beijing Asia Media agrees not to conduct any business which is likely to have a
material effect on the capital, debt or rights of the Pledgee, without the prior written
consent of the Pledgee; |
| (5) |
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According to the Share and Debt Transfer Agreement signed between the Pledgor and Yue Xxxxxx Xxxx,
who formerly held 75% Equity of Beijing Asia Media, on June 11th, 2010, the Pledgor shall be assigned
the 75% equity interest of Yue Xxxxxx Xxxx in Beijing Asia Media and all rights and obligations relating to the
investment of Yue Xxxxxx Xxxx in Beijing Asia Media, and Pledgor
currently holds 100% equities of Beijing Asia Media as the result of
the transfer; |
| (6) |
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In order to ensure that Beijing Asia Media performs its obligations of payment for the
internet advertising technical service and technical service and software license provided by
the Pledgee under provisions of the service agreement, and obligations related with the
Pledgee in “Trademark License Agreement” and “Business Operation Agreement” and to reflect the
Pledgor’s succession to the Fourth Amended and Restated Equity Interest Pledge Agreement
signed between the Pledgee and Yue Xxxxxx Xxxx on December 28th, 2007, the Pledgor and the Pledgee
intend to make a fifth amendment and restatement to the equity interest pledge agreement
as stated herein and the Pledgor is willing to pledge all of its equity interest in Beijing
Asia Media as pledge security.
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Therefore the Pledgee and the Pledgor through mutual negotiations hereby enter into this Agreement
based upon the following terms:
| 1. |
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Definitions and Interpretation |
Unless otherwise provided in this Agreement, the following terms shall have the following meanings:
| 1.1 |
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Pledge means the full content of Article 2 hereunder |
| 1.2 |
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Equity Interest means all equity interests in Beijing Asia Media legally held by the Pledgor. |
| 1.3 |
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Rate of Pledge means the ratio between the value of the pledge under this Agreement and the
exclusive technical consulting and service fees under the Service Agreement. |
| 1.4 |
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Term of Pledge means the period provided for under Article 3.2 hereunder. |
| 1.5 |
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Event of Default means any event in accordance with Article 7.1 hereunder. |
| 1.6 |
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Notice of Default means the notice of default issued by the Pledgee in accordance with this
Agreement. |
| 2.1 |
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The Pledgor agrees to pledge all its equity interest in Beijing Asia Media to the Pledgee.
Pledge under this Agreement refers to the rights owned by the Pledgee who shall be entitled to
have priority in receiving payment by the evaluation or proceeds from the auction or sale of
the equity interests pledged by the Pledgor to the Pledgee. |
| 3. |
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Rate of Pledge and Term of Pledge |
3.1.1 The rate of pledge shall be 100%
3.2.1 This Agreement shall take effect as of the date when the equity interests under this
Agreement are recorded in the Register of Shareholder of Beijing Asia
Media. The term of the Pledge is the
same with the term of Service Agreement. After the signing of this Agreement, the parties shall register the pledge with the Administration of Industry and Commerce where Beijing Asia Media is registered.
3.2.2 During the period, the Pledgor shall be entitled to dispose of the Pledge in accordance
with this Agreement in the event that Beijing Asia Media fails to pay exclusive advertising
technical Consulting and service fee or software license in accordance with the Service
Agreement or fails to perform the obligations of “Trademark License Agreement” or “Business
Operation Agreement”.
| 4. |
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Physical Possession of Documents |
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4.1 |
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During the term of Pledge under this Agreement, the Pledgor shall deliver the
physical possession of the Certificate of Payment of Registered Capital and the Shareholder’s Register
of Beijing Asia Media to the Pledgee within one week as of the date of conclusion of this
Agreement. |
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4.2 |
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The Pledgee shall be entitled to collect the dividends from the equity interests. |
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4.3 |
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The pledge of in this Agreement shall be record in the shareholder’s register. |
| 5. |
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Representations of the Pledgor |
| 5.1 |
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The Pledgor is the legal owner of the equity interests. |
| 5.2 |
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The Pledgor has not pledged or encumbered the equity interests to any other person except for
the Pledgee. |
| 6. |
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Warranties and Guarantee of the Pledgor |
| 6.1 |
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During the effective term of this Agreement, the Pledgor covenants to the Pledgee that the
Pledgor shall: |
6.1.1 Not transfer or assign the equity interests, create or permit to create any pledges,
which may have an adverse effect on the rights or benefits of the Pledgee without prior
written consent from the Pledgee; unless the two parties have agreed otherwise.
6.1.2 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 five days upon receiving such notices, orders or
suggestions and comply with such notices, orders or suggestions, or object to the foregoing
matters at the reasonable request of the Pledgee or with consent from the Pledgee.
6.1.3 Promptly notify the Pledgee of any events or any received notices which may affect the
Pledgor’s equity interest or any part of its right, and any events or any received notices
which may change the Pledgor’s any covenant and obligation under this Agreement or which may
affect the Pledgor’s performance of its obligations under this Agreement.
| 6.2 |
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The Pledgor agrees that the Pledgee’s right of exercising the Pledge obtained from this
Agreement shall not be suspended or hampered through legal procedure by the Pledgor or any
successors of the Pledgor or any person authorized by the Pledgor or any other person. |
| 6.3 |
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The Pledgor warrants to the Pledgee that in order to protect or perfect the security over the
payment of the technical consulting and service fees under the Service Agreement, the Pledgor
shall execute in good faith and cause other parties who have interests in the pledge to
execute all the title certificates, agreements, and or perform and cause other parties who
have interests to take action as required by the Pledgee and make access to exercise the
rights and authorization vested in the Pledgee under this Agreement. |
| 6.4 |
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Execute all the documents with respect to the changes of certificate of equity interests with
the Pledgee or the person (natural person or legal entity) designed by the Pledgee, and
provides all the notices, orders and decisions regarded as necessary by the Pledgee with the
Pledgee within the reasonable time. |
| 6.5 |
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The Pledgor warrants to the Pledgee that the Pledgor will comply with and perform all the
guarantees, covenants, agreements, representations and conditions for the benefits of the
Pledgee. The Pledgor shall compensate all the losses suffered by the Pledgee for the reasons
that the Pledgor does not perform or fully perform their guarantees, covenants, agreements,
representations and conditions. |
| 7.1 |
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The following events shall be regarded as the event of default: |
7.1.1 Beijing Asia Media fails to make full payment of the exclusive technical consulting and
service fees and software license fees as scheduled under the Service Agreement; or fails to
perform the obligation of “Trademark License Agreement” or “Business Operation Agreement”.
7.1.2 The Pledgor makes any material misleading or fraudulent representations or warranties
under Article 5 herein, and/or the Pledgor is in violation of any warranties under Article 6
herein;
7.1.3 The Pledgor violates the covenants under any of the Articles herein;
7.1.4 The Pledgor waives the pledged equity interests or transfers or assigns the pledged
equity interests without prior written consent from the Pledgee;
7.1.5 The Pledgor is unable to repay any general debt or other debts. The Pledgor’s any
external loan, security, compensation, covenants or any other compensation liabilities (1) are
required to be repaid or performed prior to the scheduled date; or (2) are due but can not be
repaid or performed as scheduled and thereby cause the Pledgee to deem that the Pledgor’s
capacity to perform the obligations herein is affected;
7.1.6 This Agreement is illegal for the reason of the promulgation of the related laws or the
Pledgor’s incapability of continuing to perform the obligations herein;
7.1.7 Any approval, permits, licenses or authorization from the competent authority of the
government needed to perform this Agreement or validate this Agreement are withdrawn,
suspended, invalidated or materially amended;
7.1.8 The property of the Pledgor is adversely changed and cause the Pledgee deem that the
capability of the Pledgor to perform the obligations herein is affected;
7.1.9 The successors or assignees of the Beijing Asia Media are only entitled to perform a
portion of or refuse to perform the payment liability under the Service Agreement;
7.1.10 The default resulted in the action or inaction of Pledgor’s breaching the other
Articles of this Agreement;
7.1.11 Other circumstances whereby the Pledgee is incapable of exercising the right to dispose
the Pledge in accordance with the related laws.
| 7.2 |
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The Pledgor shall immediately give a written notice to the Pledgee if the Pledgor is aware of
or find that any event under Article 7.1 herein or any events that may result in the foregoing
events have happened or is going on. |
| 7.3 |
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Unless the event of default under Article 7.1 herein has been solved to the Pledgee’s
satisfaction, the Pledgee, at any time when the event of default happens or thereafter, may
give a written notice of default to the Pledgor and require the Pledgor to immediately make
full payment of the overdue service fees and software license under the Service Agreement and
other payables or perform the obligation of “Trademark License Agreement” or “Business
Operation Agreement”, or dispose the Pledge in accordance with Article 8 herein. |
| 8. |
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Exercise of the Right of the Pledge |
| 8.1 |
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In case Beijing Asia Media does not fully repay the aforesaid technical service fees and
software license fees of the Service Agreement, and does fully perform the obligations of
“Trademark License Agreement” and “Business Operation Agreement”, the Pledgor shall not
transfer or assign the pledge without prior written approval from the Pledgee prior to the
full repayment of the consulting and service fee under the Service Agreement. Unless the two
parties have agreed otherwise. |
| 8.2 |
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Subject to Article 7, the Pledgee may exercise the right to dispose the Pledge when the
Pledgee gives a notice of default. |
| 8.3 |
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The Pledgee is entitled to have priority in receiving payment by the evaluation or proceeds
from the auction or sale of whole or part of the equity interests pledged herein in accordance
with legal procedure until the outstanding consulting and service fees and all other payables
under the Service Agreement are repaid. |
| 8.4 |
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The Pledgor 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. |
| 9.1 |
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The Pledgor shall not donate or transfer his rights and obligations herein without prior
consent from the Pledgee. |
| 9.2 |
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This Agreement shall be binding upon the Pledgor and his successors and be effective to the
Pledgee and his each successor and assignee. |
| 9.3 |
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The Pledgee may transfer or assign his all or any rights and obligations under the Service
Agreement to any individual (natural person or legal entity) 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 rights and
obligations under the Service Agreement, at the request of the Pledgee, the Pledgor shall
execute the relevant agreements and/or documents with respect to such transfer or assignment. |
| 9.4 |
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After the Pledgee’s change resulting from the transfer or assignment, the new parties to the
pledge shall enter into a pledge agreement. |
10.1 This Agreement shall not be terminated until the following conditions are met (1) All the
consulting and service fees and software license fees under the Service Agreement are paid off, (2)
Beijing Asia Media has fully perform all the obligations under “Trademark License Agreement” and
“Business Operation Agreement”, or the aforesaid obligations are terminated, and (3) Beijing Asia
Media does not perform the obligations under “Trademark License Agreement” or “Business Operation
Agreement”. In case the agreement is terminated, the Pledgee shall cancel or terminate this
Agreement within reasonable time as soon as practicable.
| 11.1 |
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The Pledgor shall be responsible for all the fees and actual expenditures in relation to this
Agreement including but not limited to legal fees, cost of production, stamp tax and any other
taxes and charges. If the Pledgee pays the relevant taxes in accordance with the laws, the
Pledgor shall fully indemnify such taxes paid by the Pledgee. |
| 11.2 |
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The Pledgor shall be responsible for all the fees (including but not limited to any taxes,
formalities fees, management fees, litigation fees, attorney’s fees, and various insurance
premiums in connection with disposition of Pledge) incurred by the Pledgor for the reason that
the Pledgor fails to pay any payable taxes, fees or charges in accordance with this Agreement;
or the Pledgee has recourse to any foregoing taxes, charges or fees by any means for other
reasons. |
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12.1 |
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Force majeure, which includes acts of governments, acts of nature, fire, explosion,
typhoon, 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 Pledge affected by force majeure shall promptly notify the
other party; |
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12.2 |
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In the event that the affected party is delayed in or prevented from performing its
obligations under this Agreement by force majeure, only within the scope of such delay or
prevention, the affected party will not be responsible for any damage by reason of such a
failure or delay of performance. The affected party shall take appropriate means to minimize
or remove the effects of force majeure and attempt to resume performance of the obligations
delayed or prevented by the event of force majeure. After the event of force majeure is
removed, both parties agree to resume the performance of this Agreement with their best
efforts. |
| 13.1 |
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This Agreement shall be governed by and construed in accordance with PRC law. |
| 13.2 |
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Any dispute, conflict or claim arising from the agreement or relating with the agreement
(including any issue relating with the existence, validity or termination of the agreement)
should be submitted to China International Economic and Trade Arbitration Commission (the
“Arbitration Commission”). Arbitration Commission shall conduct arbitration in accordance with
the current effective rules of Arbitration application. The arbitration award shall be final
and binding upon both parties. |
| 13.3 |
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Arbitration place shall be in Beijing, PRC. |
| 13.4 |
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Arbitration language shall be Chinese. |
| 13.5 |
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The arbitral panel shall consist of three arbitrators. Both parties should respectively
appoint an arbitrator, the chairman of the court of arbitration shall be appointed by both
parties through consultation. In case both parties do not coincide in opinion of the person
selected for the chief arbitrator within twenty days from the date of their respectively
appoint an arbitrator, the director of Arbitration Commission shall have right to appoint the
chief arbitrator. The chief arbitrator shall not be Chinese citizen or United State citizen. |
| 13.6 |
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Both parties agreed that the court of arbitration established according to the regulation
shall have right to provide actually performed relief on the proper situation according with
PRC Law (including but not being limited to Law of Agreement of the People’s Republic of
China). For the avoidance of doubt, both parties further that any court having jurisdiction
(including PRC Court) shall carry out the arbitral award of actual performance issued by the
court of arbitration. |
| 13.7 |
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Both parties agreed to conduct arbitration in accordance with this regulation, and
irrepealably abstain the right to appeal, reexamine or prosecute to national court or other
administration of justice in any form, and the precondition shall be that the aforesaid waiver
is effective. However the waiver of both parties does not include any post-arbitration
injunction, post-arbitration distress warrant or other command issued by any court having
jurisdiction (including PRC Court) for terminating the arbitration procedure or carrying out
any arbitral award. |
| 14.1 |
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Any notice, which is given by the parties hereto for the purpose of performing the rights,
duties and obligations hereunder, shall be in writing form (including fax and telex). Where
such notice is delivered personally, the time of notice is the time when such notice actually
reaches the addressee; where such notice is transmitted by telex or facsimile, the notice time
is the time when such notice is transmitted. If such notice does not reach the addressee on
business date or reaches the addressee after the business time, the next business day
following such day is the date of notice. The delivery place is the address first written
above of the parties hereto or the address advised in writing including facsimile and telex
from time to time. |
| 15.1 |
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The appendices to this Agreement are entire and integral part of this Agreement. |
| 16.1 |
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This agreement and any amendments, modification, supplements, additions or changes hereto
shall be in writing, and become effective upon being executed and sealed by the parties hereto. |
| 16.2 |
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This Agreement is executed by Chinese in duplicate, and each party holds one copy and each
copy and the copies shall have the same legal effect. |
(No text hereunder)
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 Effective Date first written above.
The Pledgee: eLongNet Information Technology (Beijing) Co., Ltd.
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Signature of Authorized Representative:
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/s/ Xxxx Xxxxx
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Official Seal:
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/s/ [seal of eLongNet Information Technology (Beijing) Co., Ltd.]
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| The Pledgor: Guangfu Cui |
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Signature:
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/s/ Guangfu Cui
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