Exhibit 4.28
[Note: Translation from the original agreement written in Chinese]
Execution Copy
This Fourth 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 eLong Information Technology Co., Ltd. (hereinafter “Beijing eLong”) is a wholly
domestic-owned company registered under the People’s Republic of China (hereinafter “China”)
laws and regulations. Beijing eLong is qualified to engage in Internet information service,
and operates xxx.xxxxx.xxx (hereinafter “Xxxxx.xxx”); |
| (2) |
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The Pledgee and Beijing eLong entered into an Exclusive Technical Consulting and Services
Agreement, dated February 1, 2001, a Supplementary Agreement of Exclusive Technical Consulting
and Services Agreement, dated 22, 2003, and an amended and restated Service Agreement, dated
July 20, 2004, (hereinafter “Service Agreement”) in which the Pledgee agreed to serve as the
exclusive provider of technical services and operations to Beijing eLong for
xxx.xXxxx.xxx; |
| (3) |
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The Pledgee and Beijing eLong signed an Amended and Restated Trademark License Agreement
(“Trademark License Agreement”) on July 20, 2004, according to which the Pledgee authorizes
Beijing eLong to use certain trademarks; |
| (4) |
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The Pledgee and Beijing eLong signed an Amended and Restated Domain name Agreement (“Domain
name Agreement”) on July 20, 2004, according to which the Pledgee authorizes Beijing eLong to
use certain domain names; |
| (5) |
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The Pledgee and Beijing eLong signed a Fourth Amended and Restated Business Operation
Agreement (“Business Operation Agreement”) on June 11, 2010. According to the agreement,
Beijing eLong agrees not to conduct any business likely to have a material effect on the
capital, debt or rights of the Pledgee, without the prior written consent of the Pledgee; |
| (6) |
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The Pledgee and Beijing eLong entered into an Amended and Restated Cooperation Agreement
(“Cooperation Agreement”) on July 20, 2004. According to the agreement, Beijing eLong agrees
to corporate with the Pledgee on booking hotels and other business online though Xxxxx.xxx; |
| (7) |
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According to the Share and Debt Transfer Agreement signed
between the Pledgee and Yue Xxxxxx Xxxx
who held 75% Equity of Beijing eLong on June 11, 2010, Yue Xxxxxx Xxxx transferred the 75%
equity interest in, and all rights and obligations relating thereto, to Pledgor, and Pledgor
currently holds 87.5% equity interest in Beijing eLong as the result of the transfer. |
| (8) |
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In order to make sure that Beijing eLong 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” “Domain name Agreement” “Business Operation Agreement” and
“Cooperation Agreement” and to reflect the Pledgor’s succession to the Third Amended and
Restated Equity Interest Pledge Agreement signed between the Pledgee and Yue Xxxxxx Xxxx on April
21, 2008, the Pledgor and the Pledgee intend to make a fourth 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 eLong 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 eLong 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. |
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Assignments and Pledge |
| 2.1 |
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The Pledgor agrees to pledge all its equity interest in Beijing eLong 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 eLong. The term of the Pledge is the same with
the term of Service Agreement. After entering into this Agreement, the
parties shall register the pledge with the Administration for
Industry and Commerce where Beijing eLong is registered.
3.2.2
During the period of the pledge, the Pledgor shall be entitled to
dispose of the Pledge in accordance
with this Agreement in the event that Beijing eLong fails to pay exclusive technical
Consulting and service fee or software license in accordance with the Service Agreement or
fails to perform the obligations of “Trademark License Agreement” “Domain name Agreement”
“Business Operation Agreement” or “Cooperation Agreement”
| 4. |
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Physical Possession Of Documents |
| 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 Registered Capital and the Name List of Shareholders of Beijing
eLong to the Pledgee within one week after the date of this Agreement. |
| 4.2 |
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The Pledgee shall be entitled to collect the dividends from the equity interests. |
| 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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Representation of the Pledgor |
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5.1 |
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The Pledgor is the legal owner of the equity interests. |
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5.2 |
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The Pledgor does not pledge or encumber 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 Timely 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 eLong 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 “Domain name Agreement” “Business Operation Agreement” and “Cooperation
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 eLong 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 finds that any event under Article 7.1 herein or any events that may result in the foregoing
events has occurred or is continuing. |
| 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” “Domain name
Agreement” “Business Operation Agreement” or “Cooperation 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 eLong 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” “Domain name Agreement” “Business Operation Agreement” and “Cooperation
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 to the Pledgor. |
| 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. Transfers Or Assignment
| 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 |
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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 eLong has fully perform all the obligations under “Trademark License
Agreement” “Domain name Agreement” “Business Operation Agreement” and “Cooperation Agreement”,
or the aforesaid obligations are terminated, and (3) Beijing eLong does not perform the
obligations under “Trademark License Agreement” “Domain name Agreement” “Business Operation
Agreement” and “Cooperation Agreement”. |
| 10.2 |
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In case the agreement is terminated, the Pledgee shall cancel or terminate this Agreement
within reasonable time as soon as practicable. |
| 11. |
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Formalities Fees And Other Charges |
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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. |
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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. |
| 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; |
| 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 the PRC law. |
| 13.2 |
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Any dispute, conflict or claim arising from the agreement or
relating to 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 be composed 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 waive 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 in 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.
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| 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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