Exhibit 10.9
EQUITY PLEDGE
AGREEMENT
by and among
SHANGHAI JUNLI AIR
SERVICE CO., LTD.
SUZHOU EZTRIPMART
BUSINESS SERVICES CO., LTD.
and
SHANGHAI EZTRIPMART
TRAVEL AGENCY CO., LTD.
Dated as of March 27,
2009
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EQUITY PLEDGE
AGREEMENT
THIS EQUITY PLEDGE
AGREEMENT (this “ Agreement ”) is made and
entered into as of March 27, 2009 by and among the following
parties:
1.
Shanghai Junli Air
Service Co., Ltd. (“ Pledgor
”)
Registered
Address:
Suite 503, 394-8
Yan’an Road West, Jing An District, Shanghai
Legal
Representative:
Ying Deng
2.
Suzhou EZTripMart
Business Services Co., Ltd. (“ Pledgee
”)
Registered
Address:
Suite 201, 1 Venture
House, Modern Industrial Square Phase II, 333 Xing Pu Road, Suzhou
Industrial Park, Suzhou
Legal Representative:
Shu Keung
Chui
3.
Shanghai EZTripMart
Travel Agency Co., Ltd. (“ Company
”)
Registered
Address:
13/F, 200, Tai Cang
Road, Lu Wan District, Shanghai
Legal
Representative:
Ying Deng
Each party shall be referred to
herein individually as a “ Party ” and
collectively as “ Parties ”.
WHEREAS:
(1)
Pledgor is the lawful
registered shareholder of the Company owning all of the equity
interests in the Company as set forth in Exhibit 1 as of the
date hereof (“ Company Equity ”).
(2)
The Parties hereto
entered into an Option Agreement dated as of March 27, 2009 (the
“ Option Agreement ”), pursuant to which Pledgor
shall, upon Pledgee’s request and to the extent permitted by
PRC law, transfer or cause the Company to transfer to Pledgee
and/or any other entity or person it shall designate all or part of
the equity interests in the Company owned by Pledgor or all or part
of the Company’s assets.
(3)
The Company and Pledgee
entered into a Technical and Management Consulting Services
Agreement dated as of March 27, 2009 (the “ Services
Agreement ”), pursuant to which the Company shall
exclusively engages Pledgee for the provision of certain technical
and management consulting services and accordingly pay services
fees with respect to such services to Pledgee.
(4)
The Company and Pledgee
entered into an Intellectual Property Assignment and License
Agreement dated as of March 27, 2009 (the “ License
Agreement ”), pursuant to which Pledgee shall, among
other things, grant the Company a license to use certain trademarks
and software, and Pledgor accordingly agrees to pay the relevant
license fees to Pledgee.
(5)
As a guarantee for the
performance by Pledgor and the Company of the Secured Obligations
(as defined below), and as a collateral for the payment of the
Secured Obligations (as defined below), Pledgor hereby agrees to
pledge all the Company Equity of Pledgor to Pledgee with a
first-priority right of claim, and the Company accepts said equity
pledge arrangement.
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NOW THEREFORE, the
Parties hereby agree as follows:
Article 1
Definition
1.1
As used herein, the
following terms shall have the following meanings unless the
context shall otherwise require:
“ Secured
Obligations ”: all of the contractual obligations of
Pledgor under the Option Agreement; all the contractual obligations
of the Company under the Option Agreement, Services Agreement and
License Agreement; all the contractual obligations of Pledgor and
the Company under this Agreement; and all of the direct, indirect,
expectancy and consequential losses incurred by Pledgee arising out
of any Events of Default (as defined below) by Pledgor and/or the
Company, the amount of which shall be determined by Pledgee in its
sole discretion to the extent permitted by PRC Law, and by which
Pledgor agrees to be bound; and all costs incurred by Pledgee in
connection with the enforcement of the specific performance of
Pledgor and/or the Company’s obligations under the
Transaction Documents and this Agreement.
“ Transaction
Documents ”: collectively, the Option Agreement, Services
Agreement and License Agreement.
“ Events of
Default ”: any of the following: (i) breach of any
obligations under the Option Agreement, Services Agreement and/or
this Agreement by Pledgor; (ii) breach of any obligations under the
Option Agreement, Services Agreement, License Agreement and/or this
Agreement by the Company; or (iii) any provision of any Transaction
Document and/or this Agreement becomes invalid or unenforceable due
to change of PRC Law, promulgation of a new PRC Law or any
other reason, and Pledgee is unable to provide for an alternative
arrangement to effectuate the purpose of said affected provisions
under the Transaction Instrument.
“ Pledged
Equity ”: all of the Company Equity as lawfully owned by
Pledgor to be pledged to Pledgee as collateral for the satisfaction
of the Secured Obligations by Pledgor and the Company in accordance
with this Agreement, together with any amount of capital increase
and dividends.
“ PRC Law
”: laws, regulations, rules, local regulations, judicial
interpretations, and other binding regulatory documents of the
People’s Republic of China then in effect.
1.2
References to PRC Laws
herein shall be deemed: (i) including references to modification,
change, amendment and restatement of said PRC Laws; and (ii)
including references to other decisions, notices and rules as
issued or validated in accordance with the PRC Laws.
1.3
Except otherwise
specified herein, articles, clauses and paragraphs referred to
herein shall refer to relevant provisions of this
Agreement.
Article 2
Equity
Pledge
2.1
Pledgor hereby agrees to
pledge to Pledgee the Pledged Equity, which it lawfully owns and
has the right of disposal, as collateral for the satisfaction of
the Secured Obligations in accordance of this Agreement. The
Company hereby consents to the pledge of the Pledged Equity by
Pledgor in accordance with this Agreement.
2.2
Pledgor covenants that
it shall record the equity pledge arrangement hereunder (the
“ Equity Pledge ”) in the register of
shareholders of the Company on the date of the execution of this
Agreement, and shall complete the registration of the Equity Pledge
at the administration for industry and commerce authority where the
Company is registered as soon as possible.
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2.3
During the term of this
Agreement, Pledgee shall not be liable for the decrease of value of
the Pledged Equity, nor shall Pledgor have recourse or claim of any
kind against Pledgee with respect thereto, except to the extent
such decrease of value is due to Pledgee’s intentional acts
or a direct result of Pledgee’s gross negligence.
2.4
Subject to Article 2.3,
should any substantial decrease of the value of Pledged Equity
having a material adverse effect on Pledgee’s rights become
probable, Pledgee may auction off or sell the Pledged Equity at any
time on behalf of Pledgor, and upon mutual agreement with Pledgor
apply the proceeds from such sale to the satisfaction of the
Secured Obligations or deposit such proceeds in escrow at the
notary public office where Pledgee is located (any cost incurred in
connection therewith shall be solely borne by Pledgee). In
addition, Pledgor shall, upon Pledgee’s request, provide
other properties as collateral.
2.5
Upon the occurrence of
any Events of Default, Pledgor shall have the right to dispose of
the Pledged Equity in accordance with Article 4 hereof.
2.6
Pledgor may increase the
capital contribution of the Company only with the prior consent of
Pledgee. Contribution to the increased registered capital of the
Company made by Pledgor in connection with such capital increase
shall also constitute the Pledged Equity.
2.7
Subject to the prior
consent of Pledgee, Pledgor may be entitled to dividends or
distributions in respect of the Pledged Equity. Pledgor agrees that
during the term of the Equity Pledge, any dividends or
distributions in respect of the Pledged Equity shall constitute the
Pledged Equity to be first applied toward the satisfaction of the
Secured Obligations, which amount shall be transferred by the
Company to the bank account designated by Pledgee subject to the
control of Pledgee.
2.8
Upon the occurrence of
any Events of Default, Pledgee shall have the right to dispose of
any Pledged Equity of Pledgor in accordance with this
Agreement.
Article 3
Cancellation of
Pledge
3.1
Upon full and complete
discharge of all Secured Obligations by Pledgor and the Company, or
upon the full and complete payment of the Secured Obligations,
Pledgee shall cancel the Equity Pledge hereunder as requested by
Pledgor, and shall assist with Pledgor to remove the Equity Pledge
registration in the Company’s register of shareholders and at
the relevant administration for industry and commerce. Reasonable
costs incurred in connection with the cancellation of the Equity
Pledge shall be borne by Pledgor.
Article 4
Disposal of Pledged
Equity
4.1
The Parties hereby agree
that in the event of any Events of Default, Pledgee shall, upon
giving written notice to Pledgor, have the right to exercise all
rights and powers of remedies available to it under the PRC Laws,
Transaction Documents and provisions of this Agreement, including,
but not limited to, auctioning off or selling the Pledged Equity in
accordance with then-effective laws and regulations for a
first-priority repayment. Pledgee shall not be responsible for any
loss incurred by Pledgor or the Company arising out of the
reasonable exercise of such rights and power.
4.2
Pledgee shall have the
right to appoint in writing its attorney or other agent to exercise
any or all of the abovementioned rights and powers; neither Pledgor
nor the Company shall have the right to contest such
appointment.
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4.3
Reasonable costs
incurred in connection with the exercise of any or all of the above
rights and powers by Pledgee shall be borne by Pledgor, which
actual costs may be deducted by Pledgee from the proceeds obtained
from its exercise of rights and powers.
4.4
Proceeds derived from
Pledgee’s exercise of rights and power shall be applied in
the order as follows:
a.
to pay for all costs
arising out of the disposal of the Pledged Equity and
Pledgee’s exercise of rights and power, including, but not
limited to, court fees, attorneys’ fees and agent
commissions;
b.
to pay applicable taxes
arising from the disposal of the Pledged Equity; and
c.
to satisfy the Secured
Obligations of Pledgee.
Any remaining balance
after the above payments shall be returned to Pledgor or placed in
escrow at such other persons entitled to such amount in accordance
with the relevant laws and regulations, or at the notary public
office where is Pledgee located (any cost incurred in connection
therewith shall be borne by Pledgor).
4.5
Pledgee has the right to
seek any or all of its remedies concurrently or separately (in any
order). Pledgee may exercise its rights to auction off or sell the
Pledged Shared hereunder without having to first seek other
remedies.
Article 5
Costs and
Expenses
5.1
Except otherwise
expressly provided herein, all costs and expenses actually incurred
in connection with the effectuation of the Equity Pledge hereunder,
including, but not limited to, stamp duty and any other taxes and
all legal fees and costs, shall be borne by each Party who incurred
them respectively.
Article 6
Continuance and Non
Waiver of Rights
6.1
The Equity Pledge
created hereunder shall be a continuing obligation, which shall be
effective until such time as the Secured Obligations has been fully
satisfied. No waiver of any Pledg
