EXHIBIT 10.10
TRANSLATION
Share Pledge Agreement
This Share Pledge Agreement (hereinafter referred to as this "Agreement") has
been executed by and between the following parties on September 10, 2003 in
Shanghai.
Pledgee: Ctrip Computer Technology (Shanghai) Co., Ltd.
Address: 3rd fl., Xxxxxxxx 00, Xxxx Xxx Xxxx, Xxxxxxxx
Pledgor: A shareholder of an Affiliated Chinese Entity of Pledgee
Chinese identification card No.:
Address: Room ___, Alley___, Hongkou District, Shanghai
Whereas:
1. Pledgor is a citizen of the People's Republic of China (hereinafter
referred to as "China"), and holds 20% of the shares in Beijing Chenhao
Xinye Air-Ticketing Service Company Limited ("Beijing Chenhao").
Beijing Chenhao is a limited liability company registered in Beijing,
China.
2. Pledgee is a wholly foreign owned entity registered in Shanghai, China,
and is engaged in the business of developing computer software and
hardware technologies and systems integration and information services
(including online travel information consulting services). Pledgee and
Beijing Chenhao executed a Consulting Services Agreement (hereinafter
referred to as the "Service Agreement") on September 10, 2003;
3. To ensure that Pledgee collects consulting and service fees regularly
from Beijing Chenhao partially owned by Pledgor, Pledgor hereby pledges
all of the shares in Beijing Chenhao held by him as security for the
consulting and service fees under the Service Agreement.
To perform the provisions of the Service Agreement, Pledgor and Pledgee have
mutually agreed to execute this Agreement upon the following terms.
1. Unless otherwise provided herein, the terms below shall have the
following meanings:
1.1 Pledge: shall refer to the entire content set forth in Article 2 of
this Agreement.
1.2 Shares: shall refer to all of the shares lawfully held by Pledgor in
Beijing Chenhao.
1.3 Pledge Ratio: shall refer to the ratio between value of the pledge
under this Agreement and the service fees payable by Beijing Chenhao to
Pledgee.
1.4 Term of Pledge: shall refer to the term set forth in Section 3.2 of
this Agreement.
1.5 Service Agreement: shall refer to the Consulting Services Agreement
executed by and between Beijing Chenhao partially owned by Pledgor and
Pledgee on September 10, 2003.
1.6 Event of Default: shall refer to any circumstances set forth in Article
7 of this Agreement.
1.7 Notice of Default: shall refer to the notice issued by Pledgee in
accordance with this Agreement declaring an Event of Default.
EXHIBIT 10.10
TRANSLATION
2. The Pledge
2.1 Pledgor hereby pledges to Pledgee all of his shares in Beijing Chenhao.
"Pledge" shall refer to the right of Pledgee to be compensated on a
preferential basis with the conversion, auction or sales price of the
shares held by Pledgor.
3. The Pledge Ratio and Term of Pledge
3.1 The Pledge Ratio
3.1.1 The Pledge Ratio of the Pledge shall be approximately 100%.
3.2 Term of Pledge
3.2.1 The Pledge in accordance with this Agreement shall take effect as of the
date of recording on the shareholders list of Beijing Chenhao, and the effective
term of the Pledge shall be the same as the effective term of the Service
Agreement. The parties agree to complete the filing procedures of the Pledge
with the industry and commerce administration government authorities with which
Beijing Chenhao was registered after this Agreement takes effect.
3.2.2 During the term of the Pledge, in the event that Pledgor fails to pay the
exclusive technical consulting service fees in accordance with the Service
Agreement, Pledgee shall have the right to dispose of the Pledge in accordance
with the provisions of this Agreement.
4. Custody of Records for Shares subject to Pledge
4.1 During the Term of Pledge set forth in this Agreement, Pledgor shall
submit to Pledgee's custody the capital contribution certificate for
the Shares and the shareholder's list within one week from the
execution of this Agreement.
4.2 Pledgee shall have the right to collect dividends generated by the
Shares.
5. Representations and Warranties of Pledgor
5.1 Pledgor is the lawful owner of the Shares.
5.2 Whenever Pledgee exercises its right with respect to the Pledge in
accordance with this Agreement, there shall not be any intervention
from any other parties.
5.3 Pledgee shall have the right to dispose of and transfer the Pledge in
accordance with the provisions set forth in this Agreement.
5.4 Except the Pledgee, the Pledgor has not placed any other pledge rights
on the Shares.
6. Covenants of the Pledgor
6.1 Pledgor hereby promises to the Pledgee for the interest of the Pledgee,
that during the term of this Agreement, Pledgor shall:
6.1.1 Not transfer the Shares, place or permit the existence of any pledge
that may affect the Pledgee's rights and interests in the Shares,
without the prior written consent of Pledgee;
6.1.2 Comply with the provisions of all laws and regulations applicable to
the pledge of rights, and within 5 days of receipt of any notice, order
or recommendation issued or prepared by relevant competent authorities
regarding the Pledge, shall present
EXHIBIT 10.10
TRANSLATION
the aforementioned notice, order or recommendation to Pledgee, and
shall comply with the aforementioned notice, order or recommendation or
submit objections and representations with respect to the
aforementioned matters upon Pledgee's reasonable request or upon
consent of Pledgee;
6.1.3 Promptly notify Pledgee of any event or notice received by Pledgee that
may have an impact on Pledgee's rights to the Shares or any portion
thereof, as well as promptly notify Pledgee of any event or notice
received by Pledgee that may have an impact on any guarantees and other
obligations of Pledgor arising in connection with this Agreement.
6.2 Pledgor agrees that the rights acquired by Pledgee in accordance with
this Pledge Agreement with respect to Pledge shall not be interrupted
or harmed by Pledgor or any heirs or representatives of Pledgor or any
other persons through operation of law.
6.3 Pledgor hereby warrants to Pledgee that to protect or perfect the
guarantee provided by this Agreement for payment of the consulting
service fees under the Service Agreement, Pledgor hereby executes in
good faith and shall cause other parties who have a stake in the Pledge
to execute all rights certificates, agreements, deeds and/or covenants
required by Pledgee and / or shall perform and shall cause other
parties who have a stake in the Pledge to perform actions required by
Pledgee, and facilitate the exercise by Pledgee of its rights and
authority granted thereto by this Agreement, execute all relevant
documents that modify stock certificates with Pledgee or designee(s) of
Pledgee (natural persons / legal persons), and shall provide to Pledgee
within a reasonable time all notices, orders and decisions regarding
the Pledge that are required by Pledgee.
6.4 Pledgor hereby warrants to Pledgee that for Pledgee's interest, Pledgor
shall comply with and perform all guarantees, promises, agreements,
representations and conditions under this Agreement. In the event of
failure or partial performance of its guarantees, promises, agreements,
representations and conditions, Pledgor shall indemnify Pledgee for all
of its losses resulting therefrom.
7. Event of Default
7.1 The following circumstances shall be deemed Events of Default:
7.1.1 Beijing Chenhao fails to pay in full the exclusive technical service
fees payable under the Service Agreement;
7.1.2 Any representation or warranty by Pledgor in Article 5 of this
Agreement contains material misrepresentations or errors, and/or
Pledgor violates any of the warranties in Article 5 of this Agreement;
7.1.3 Pledgor breaches any of the covenants in Article 6 of this Agreement;
7.1.4 Pledgor breaches any provisions of this Agreement;
7.1.5 Pledgor gives up the Shares pledged or assigns the Shares pledged
without the written consent of Pledgee;
7.1.6 Any of Pledgor's own loans, guarantees, indemnification, promises or
other debt liabilities to any third party or parties (1) have been
subject to a demand of early repayment or performance; or (2) have
become due but are not capable of being
EXHIBIT 10.10
TRANSLATION
repaid or performed in a timely manner, thus leading Pledgee to believe
that Pledgor's ability to perform its obligations under this Agreement
has been affected;
7.1.7 Pledgor is unable to repay general debts and other debts;
7.1.8 The promulgation of applicable laws have rendered this Agreement
illegal or have rendered it impossible for Pledgor to continue to
perform its obligations under this Agreement;
7.1.9 All approvals, licenses, permits or authorizations of government
agencies that make this Agreement enforceable, legal and effective have
been withdrawn, terminated, invalidated or substantively changed;
7.1.10 Adverse changes in properties owned by Pledgor, which lead Pledgee to
believe that that Pledgor's ability to perform its obligations under
this Agreement has been affected;
7.1.11 The successor or custodian of Beijing Chenhao is capable of only
partially perform or refuses to perform the payment obligations under
the Service Agreement;
7.1.12 Breach of this Agreement resulting from breach of other provisions of
this Agreement by Pledgor's action or omission; and
7.1.13 Other circumstances where Pledgee is unable to exercise its right with
respect to the Pledge.
7.2 Upon information or discovery of the occurrence of any circumstances or
event that may lead to the aforementioned circumstances described in
Section 7.1, Pledgor shall immediately notify Pledgee in writing.
Unless an Event of Default set forth in this Section 7.1 has been
successfully resolved to Pledgee's satisfaction, Pledgee may issue a
Notice of Default to Pledgor in writing upon the occurrence of the
Event of Default or at any time thereafter and demand that Pledgor
immediately pay all outstanding payments due under the Service
Agreement and all other payments due to Pledgee, or dispose of the
Pledge in accordance with the provisions of Article 8 of this
Agreement.
8. Exercise of Pledge
8.1 Prior to the full payment of the consulting service fee described in
the Service Agreement, without the Pledgee's written consent, Pledgor
shall not assign the Pledge.
8.2 Pledgee shall issue a Notice of Default to Pledgor when exercising the
Pledge.
8.3 Subject to the provisions of Section 7.3, Pledgee may exercise the
right to dispose of the Pledge concurrently with the issuance of the
Notice of Default in accordance with Section 7.2 or at any time after
the issuance of the Notice of Default.
8.4 Pledgee shall have the right to be compensated with the conversion
price of the Shares under this Agreement in part or in whole, in
accordance with legally mandated procedures, or with the auction or
sale price of such Shares on a preferential basis, until all
outstanding consulting service fees and all other outstanding payments
under the Service Agreement have been paid off.
EXHIBIT 10.10
TRANSLATION
8.5 When Pledgee disposes of the Pledge in accordance with this Agreement,
Pledgor shall not erect any impediment, and shall provide necessary
assistance to enable Pledgee to realize its Pledge.
9. Assignment
9.1 Unless Pledgee consents in advance, Pledgor shall not have the right to
assign or delegate its rights and obligations under this Agreement.
9.2 This Agreement shall be binding on Pledgor and the successors thereof,
and shall be valid with respect to Pledgee and each of the successors
and assigns thereof.
9.3 At any time, Pledgee may assign any and all of its rights and
obligations under the Service Agreement to its designee(s) (natural /
legal persons), in which case the assigns shall have the rights and
obligations of Pledgee under this Agreement, as if it were a party to
this Agreement. When the Pledgee assigns the rights and obligations
under the Service Agreement, upon Pledgee's request, Pledgor shall
execute relevant agreements and / or documents relating to such an
assignment.
9.4 In the event of a change in Pledgee due to an assignment, the new
parties to the Pledge shall execute a new pledge agreement.
10. Termination
10.1 Upon the payoff of the consulting service fees under the Service
Agreement and Pledgor no longer undertakes any obligations under the
Service Agreement, this Pledge Agreement shall be terminated, and
Pledgor shall then cancel or terminate this Agreement as soon as
reasonably practicable.
11. Handling Fees and Other Expenses
11.1 All fees and out of pocket expenses relating to this Agreement,
including but not limited legal costs, cost of production, stamp tax
and any other taxes and fees shall be borne by Pledgor. In the event
that the law requires Pledgee to pay relevant taxes, Pledgor shall
provide full reimbursement for all taxes already paid by Pledgee.
11.2 In the event that Pledgor fails to pay any taxes and fees in accordance
with the provisions of this Agreement or in the event that due to other
reasons, Pledgee attempts to recover taxes and fees payable by Pledgor
through any means, all expenses (including but not limited to various
taxes, handling fees, management fees, cost of litigation, attorney's
fees and various insurance premiums, etc.) resulting therefrom shall be
borne by Pledgor.
12. Force Majeure
12.1 "Force majeure" shall refer to any event beyond the reasonable control
of either party and that still cannot be avoided even if the party
affected has exercised reasonable care, including but not limited
government actions, acts of God, fire, explosions, storms, flood,
earthquakes, tides, lightning or war. But a lack of credit, funds or
financing shall not be deemed a circumstances beyond the reasonable
control of either party. The party affected by a "force majeure event"
shall notify the other party of such relief from liability as soon as
possible.
EXHIBIT 10.10
TRANSLATION
12.2 In the event that the performance of this Agreement is delayed or
impeded by the aforementioned "force majeure," the party affected by
such force majeure shall not be liable in any way under this Agreement
to the extent of such delay or impedance. The party affected shall take
appropriate measures to mitigate or eliminate the impact of such "force
majeure" and shall attempt to resume the performance of obligations
delayed or impeded by such "force majeure." As soon as the force
majeure event is eliminated, the parties agree to use their best
efforts to resume the performance of this Agreement.
13. Resolution of Disputes
13.1 This Agreement shall be governed by laws of China and shall be
construed in accordance therewith.
13.2 In the event of any dispute with respect to the construction and
performance of the provisions of this Agreement, the parties shall
negotiate in good faith to resolve same. Upon failure of such
negotiations, any party may submit the relevant disputes to the China
International Economics and Foreign Trade Arbitration Commission
Shanghai Chapter for resolution by arbitration, in accordance with its
current arbitration rules. The arbitration shall be performed in
Shanghai, and the language used during arbitration shall be Chinese.
The arbitration ruling shall be final and binding on both parties.
14. Notices
14.1 Notices sent by the parties to perform the rights and obligations under
this Agreement shall be in writing. If sent by personal delivery, such
a notice shall be deemed served upon actual delivery; if sent by telex
or facsimile, such a notice shall be deemed served at the time of
transmission. If the date of transmission is not a business day or if
transmission is after hours, then the next consecutive business day
shall be the date of service. The address of service shall be the
addresses of the two parties on the first page of this Agreement or
addresses notified in writing at any time subsequently. In writing
shall include facsimiles and telexes.
15. Attachments
The attachments set forth in this Agreement shall be an integral part hereof.
16. Effectiveness
Any amendments, changes and supplements to this Agreement shall be in writing
and shall take effect upon affixation of the signatures and seals of the
parties.
16.2 This Agreement is written in Chinese in triplicate copies.
(Signature Page to Follow)
EXHIBIT 10.10
TRANSLATION
Pledgee: Ctrip Computer Technology (Shanghai) Co., Ltd.
Authorized representative: ___________
Pledgor:
Signed:
EXHIBIT 10.10
TRANSLATION
Attachments:
1. Shareholders list of Beijing Chenhao Xinye Air-Ticketing Service
Co., Ltd.;
2. The Capital Contribution Certificate for the Formation of Beijing
Chenhao Xinye Air-Ticketing Service Co., Ltd.; and
3. Consulting Services Agreement
