Exclusive Option Agreement - Ctrip.com (Hong Kong) Ltd.
TRANSLATION
Exclusive Option Agreement
This Exclusive Option Agreement (this "Agreement") is executed by and among the
parties below as of September 10, 2003:
(1) Party A: Ctrip.com (Hong Kong) Limited, a limited liability
company set up and existing under the laws of Hong Kong, with its
registered address at Ctrip.com (Hong Kong) Limited, Unit 2001,
The Centrium, 60 Wyndham Street, Central, Hong Kong;
(2) Party B: A shareholder of Party C
Chinese identification card No.:________________
Home address: Rm. ___, No. ___, Xuhui District, Shanghai; and
(3) Party C: An affiliated Chinese entity of Party A.
In this Agreement, each of Party A, Party B and Party C shall be referred to as
a "Party," and they shall be collectively referred to as the "Parties."
Whereas:
(1) Party B holds 80% of the shares in Party C.
(2) Party B and Party A executed a loan agreement on September [10], 2003
(the "Loan Agreement").
(3) Party C has executed a series of agreements such as the "Consulting
Services Agreement" with Ctrip Computer Technology (Shanghai) Limited,
a wholly owned foreign entity set up by Party A in China ("Ctrip
Shanghai").
Now therefore, upon mutual discussions and negotiations, the Parties have
reached the following agreements:
1. Stock option and sale
1.1 Stock option grant
Party B hereby irrevocably grants to Party A an irrevocable right to
purchase, or designate one or more persons (each, a "Designee") to purchase, the
shares of Party C then held by Party B at any time in part or in whole at Party
A's sole and absolute discretion to the extent permitted by Chinese laws and at
the price described in Section 1.3 herein (such right being the "Stock Option").
Except for Party A and the Designee(s), no other person shall be entitled to the
Stock Option. Party C hereby agrees to the grant by Party B of the Stock Option
to Party A. The term "person" as used herein shall refer to individuals,
corporations, partnerships, partners, enterprises, trusts or non-corporate
organizations.
1.2 Steps for exercise of Stock Option
Subject to the provisions of Chinese laws and regulations, Party A may
exercise the Stock Option by issuing a written notice to Party B (the "Stock
Option Notice") and specifying the number of shares to be purchased from Party B
(the "Option Shares").
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EXHIBIT 10.9
TRANSLATION
1.3 Stock Option price
Unless an appraisal is required by Chinese laws applicable to the Stock Option
exercised by Party A, the purchase price of the Option Shares (the "Stock Option
Price") shall equal the actual capital contributions paid in by Party B for the
Option Shares.
1.4 Transfer of Option Shares
For each exercise of the Stock Option:
(a) Party B shall cause to promptly convene a shareholders meeting, at
which a resolution shall be adopted approving Party B's transfer of
Option Shares to Party A and / or the Designee(s);
(b) Party B shall execute a share transfer contract with respect to each
transfer with Party A and / or each Designee (whichever is applicable),
in accordance with the provisions of this Agreement and the Stock
Option Notice regarding the Option Shares;
(c) The relevant Parties shall execute all other necessary contracts,
agreements or documents, obtain all necessary government licenses and
permits and take all necessary actions, to give valid ownership of the
Option Shares to Party A and/or the Designee(s) unencumbered by any
security interest and cause Party A and/or the Designee(s) to become
the registered owner(s) of the Option Shares. For the purchase of this
section and this Agreement, "security interest" shall include security,
mortgages, third party's rights or interests, any stock options,
acquisition right, right of first refusal, right to offset, ownership
detention or other security arrangements, etc. To clarify, security
interest shall not include any security interest generated under this
Agreement and Party B's Share Pledge agreement. The "Party B's Share
Pledge Agreement" as used in this section and this Agreement shall
refer to the Share Pledge Agreement executed by and between Ctrip
Shanghai and Party B as of the even date hereof, whereby Party B
pledges all of his shares in Party C to Ctrip Shanghai, in order to
guarantee Party C's performance of its obligations under the
"Consulting Services Agreement" executed by and between Party C and
Ctrip Shanghai.
1.5 Payment for the Stock Option Price
In view of the fact that Party A and Party B have agreed in the Loan Agreement
that any proceeds obtained by Party B through the transfer of its shares in
Party C shall be used as consideration for repayment of the loan provided by
Party A in accordance with the Loan Agreement, when Party A exercises the Stock
Option, the Stock Option Price shall be deemed as consideration for repaying the
loan owed by Party B to Party A, and accordingly, Party A shall no longer be
required to pay any separate Stock Option Price to Party B.
2. Covenants regarding Stock Option
2.1 Covenants regarding Party C
Party B and Party C hereby warrant the following:
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EXHIBIT 10.9
TRANSLATION
(a) Without the prior written consent of Party A or Ctrip Shanghai, they
shall not in any manner supplement, change or amend the articles and
bylaws of Party C, increase or decrease its registered capital, or
change its structure of registered capital in any other manner;
(b) Maintain Party C's corporate existence in accordance with good
financial and business standards and practices by prudently and
effectively operating its business and handling its affairs;
(c) Without the prior written consent of Party A or Ctrip Shanghai, they
shall not at any time following the date of execution hereof, sell,
transfer, mortgage or dispose of in any other manner any assets of
Party C or legal or beneficial interest in the business or revenues of
Party C, or allow the encumbrance thereon of any security interest;
(d) Without the prior written consent of Party A or Ctrip Shanghai, they
shall not incur, inherit, guarantee for or suffer the existence of any
debt, except for (i) debt incurred in the ordinary course of business
instead of that incurred through any loans; and (ii) debt already
disclosed to Party A for which Party A's written consent has been
obtained;
(e) Always operate all of Party C's businesses during the ordinary course
of business, to maintain the asset value of Party C and refrain from
any action / omission sufficient to affect Party C's operating status
and asset value;
(f) Without the prior written consent of Party A or Ctrip Shanghai, they
shall not execute any major contract, except contracts in the ordinary
course of business (for purpose of this subsection, a contract whose
value exceeds RMB1 million shall be deemed a major contract);
(g) Without the prior written consent of Party A or Ctrip Shanghai, they
shall not provide any person with any loan or credit;
(h) Provide Party A with information on Party C's business operations and
financial condition at Party A's request;
(i) Procure and maintain insurance from an insurance carrier acceptable to
Party A, and the amount and types of coverage maintained shall be
identical to the amount and types of coverage usually maintained by
companies that operate similar business and hold similar properties or
assets in the same area where Party C is located;
(j) Without the prior written consent of Party A or Ctrip Shanghai, they
shall not merge or be consolidated with any person, or acquire any
person or make investments in any person;
(k) Immediately notify Party A of the occurrence or possible occurrence of
any litigation, arbitration or administrative proceedings relating to
Party C's assets, business and revenue;
(l) To maintain the ownership by Party C of all of its assets, execute all
necessary or appropriate documents, take all necessary or appropriate
actions and file all necessary or appropriate complaints or raise
necessary and appropriate defenses against all claims;
(m) Without the prior written consent of Party A or Ctrip Shanghai, they
shall not in any manner distribute stock dividends to the shareholders,
provided that as soon
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EXHIBIT 10.9
TRANSLATION
as Party A makes a request, they shall immediately distribute all
distributable profits to the respective shareholders; and
(n) At the request of Party A or Ctrip Shanghai, appoint any persons
designated by Ctrip Shanghai as directors of Party C.
2.2 Covenants regarding Party B
Party B hereby warrants the following:
(a) Without the prior written consent of Party A or Ctrip Shanghai, Party B
shall not at any time following the date of execution hereof sell,
transfer, mortgage or dispose of in any other manner any legal or
beneficial interest in the shares of Party C held by Party B, or allow
the encumbrance thereon of any security interest, except for the pledge
placed on these shares in accordance with Party B's Share Pledge
Agreement;
(b) Cause the directors of Party C appointed by Party B not to approve the
sale, transfer, mortgage or disposition in any other manner any legal
or beneficial interest in the shares of Party C held by Party B, or
allow the encumbrance thereon of any security interest, except for the
pledge placed on these shares in accordance with Party B's Share Pledge
Agreement;
(c) Cause the directors of Party C appointed by Party B not to approve the
merger or consolidation with any person, or the acquisition of or
investment in any person, without the prior written consent of Party A
or Ctrip Shanghai;
(d) Immediately notify Party A of the occurrence or possible occurrence of
any litigation, arbitration or administrative proceedings relating to
the shares of Party C held by Party B;
(e) Cause the directors of Party C appointed by Party B to vote their
approval of the transfer of the Option Shares as set forth in this
Agreement;
(f) To maintain his ownership of Party C's shares, execute all necessary or
appropriate documents, take all necessary or appropriate actions and
file all necessary or appropriate complaints or raise necessary and
appropriate defenses against all claims;
(g) Appoint any Designee of Ctrip Shanghai as director of Party C, at the
request of Party A or Ctrip Shanghai;
(h) At the request of Party A at any time, promptly and unconditionally
transfer its shares in Party C to Party A's Designee(s) at any time,
and waives its right of first refusal to the share transfer by the
other existing shareholder of Party C; and
(i) Strictly abide by the provisions of this Agreement and other contracts
jointly or separately executed by and among Party B, Party C and Party
A, effectively perform the obligations thereunder, and refrain from any
action/omission sufficient to affect the effectiveness and
enforceability thereof.
3. Representations and Warranties by Party B and Party C
Party B and Party C hereby represent and warrant to Party A, as of the
date of execution of this Agreement and each date of transfer of the Option
Shares, that:
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EXHIBIT 10.9
TRANSLATION
(a) They have the authority to execute and deliver this Agreement and
any share transfer contracts to which they are a party concerning the Option
Shares to be transferred thereunder (each, a "Transfer Contract"), and to
perform their obligations under this Agreement and any Transfer Contracts. The
execution of this Agreement and the Transfer Contracts to which they are a party
shall constitute their legal, valid and binding obligations and shall be
enforceable against them in accordance with the provisions thereof;
(b) The execution and delivery of this Agreement or any Transfer
Contract and the obligations under this Agreement or any Transfer Contract shall
not: (i) cause any violation of any applicable Chinese laws; (ii) be
inconsistent of their articles, bylaws or other organizational documents; (iii)
cause the violation of any contracts or instruments to which they are a party or
which are binding on them, or constitute any breach under any contracts or
instruments to which they are a party or which are binding on them; (iv) cause
any violation of any condition for the grant and /or continued effectiveness of
any licenses or permits issued to either of them; or (v) cause the suspension or
revocation of or imposition of additional conditions to any licenses or permits
issued to either of them;
(c) Party C has a good and merchantable title to all of its assets.
Party C has not placed any security interest on the aforementioned assets;
(d) Party C does not have any outstanding debt, except for (i) debt
incurred in the ordinary course of business; and (ii) debt already disclosed to
Party A for which Party A's written consent has been obtained.
(e) Party C has complied with all Chinese laws and regulations
applicable to asset acquisitions;
(f) Currently, there are no pending or possible litigation, arbitration
or administrative proceedings relating to the shares or assets of Party C; and
(g) Party B has a good and merchantable title to the shares of Party C
he holds, and has not placed any security interest on such shares.
4. Effective date
This Agreement shall take effect upon the date of execution of this Agreement
and remain effective for a term of 10 years, and may be renewed for an
additional 10 years at Party A's election.
5. Applicable laws and resolution of disputes
5.1 Applicable laws
The execution, effectiveness, construction and performance of this Agreement and
the resolution of disputes hereunder shall be subject to the protection and
jurisdiction of formally
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EXHIBIT 10.9
TRANSLATION
published and publicly available laws of China. Matters not covered by formally
published and publicly available laws of China shall be governed by
international legal principles and practices.
5.2 Methods of resolution of disputes
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 by the Parties to reach an agreement on the
resolution of such a dispute within 30 days after any Party submits a request to
resolve same through negotiations, any Party may submit the relevant dispute to
the China International Economics and Foreign Trade Arbitration Commission
Shanghai Chapter for resolution by arbitration, in accordance with its
then-effective 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.
6. Taxes and fees
Each Party shall pay any and all transfer and registration tax, expenses and
fees incurred thereby or levied thereon in accordance with Chinese laws in
connection with the preparation and execution of this Agreement and the Transfer
Contracts, as well as the consummation of the transactions contemplated under
this Agreement and the Transfer Contracts.
7. Notices
The notices or other communications required of any Party shall be in writing in
Chinese or English, and shall be sent to the following addresses of other
Parties or other designated addresses in notices from such a Party from time to
time via personal delivery, letter or facsimile. The date on which such a notice
shall be deemed actually served shall be determined as follows: (a) if a notice
is sent via personal delivery, it shall be deemed actually served on the date of
such personal delivery; (b) if a notice is sent via letter, on the tenth day (as
indicated by the postmark) after the letter is sent via registered air mail,
postage prepaid, or on the fourth day after the notice is given to an
internationally recognized express mail carrier, it shall be deemed actually
served; and (c) if a notice is sent via facsimile, the time of receipt shown on
the transmission acknowledge sheet of the document shall be deemed the time of
actual service.
To Party A:
Ctrip.com (Hong Kong) Limited
Room 2001, The Centrium, 60 Wyndham Street
Central, Hong Kong
Facsimile: (00852) 21690920
Phone: (00852) 21690911
Attn: Neil Shen
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EXHIBIT 10.9
TRANSLATION
To Party B:
Name:
Address:
Facsimile:
Phone:
To Party C:
Name:
Address:
Facsimile:
Phone:
8. The duty to maintain confidentiality
The Parties acknowledge that any oral or written information exchanged among
them with respect to this Agreement is confidential information. Each Party
shall maintain the confidentiality of all such information, and without
obtaining the written consent of other Parties, it shall not disclose any
relevant information to any third parties, except in the following
circumstances: (a) such information is or will be in the public domain (provided
that this is not the result of a public disclosure by the receiving party); (b)
information disclosed as required by applicable laws or rules or regulations of
any stock exchange; or (c) information required to be disclosed by any Party to
its legal counsel or financial advisor regarding the transaction contemplated
hereunder, and such legal counsel or financial advisor are also required to be
bound by confidentiality duties similar to the duties in this section.
Disclosure of a secret by the staff members or agency hired by any Party shall
be deemed disclosure of a secret by such a Party, which shall be held liable for
breach of this Agreement. This section shall survive the termination of this
Agreement for any reason.
9. Further warranties
The Parties agree to promptly execute documents that are reasonably required for
the implementation of the provisions and purposes of this Agreement or that are
conducive thereto, and take further actions that are reasonably required for the
implementation of the provisions and purposes of this Agreement or that are
conducive thereto.
10. Miscellaneous
10.1 Amendments, changes and supplements
Any amendments, changes and supplements to this Agreement shall require the
execution of a written agreement by all of the Parties.
10.2 Compliance with laws and regulations
Each of the Parties shall comply with all formally published and publicly
available laws and regulations of China and ensure that the operations of each
of the Parties are in
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EXHIBIT 10.9
TRANSLATION
compliance with all formally published and publicly available laws and
regulations of China.
10.3 Entire contract
Except the written amendments, supplements or changes executed after the
execution of this Agreement, this Agreement shall constitute the entire
agreement reached by and among the Parties hereto with respect to the subject
matter thereof, and shall supercede all prior oral and written consultations,
representations and contracts reached with respect to the subject matter of this
Agreement.
10.4 Headings
The headings of this Agreement are for convenience only, and shall not be used
to interpret, explain or otherwise affect the meanings of the provisions of this
Agreement.
10.5 Languages
This Agreement is in writing in Chinese in triplicate copies.
10.6 Severability
In the event that one or several of the provisions of this Agreement are ruled
invalid, illegal or unenforceable in any aspect in accordance with any laws or
regulations, the validity, legality or enforceability of the remaining
provisions of this Agreement shall not be affected or compromised in any aspect.
The Parties shall strive in good faith to replace such invalid, illegal or
unenforceable provisions with effective provisions, and the economic effect of
such effective provisions shall be as close as possible to the economic effect
of those invalid, illegal or unenforceable provisions.
10.7 Successors
This Agreement shall be binding on and shall inure to the interest of the
respective successors of the Parties and the permitted assigns of such Parties.
10.8 Survival
(a) Any obligations that occur or that are due as a result of this
Agreement upon the expiration or early termination of this Agreement
shall survive the expiration or early termination thereof.
(b) The provisions of Articles 5 and 7 and this Section 10.8 shall survive
the termination of this Agreement.
10.9 Waivers
Any Party may waive the terms and conditions of this Agreement, provided that
such a waiver must be provided in writing and shall require the signatures of
the Parties. No waiver by any Party in certain circumstances with respect to a
breach by other Parties shall operate as a waiver by such a Party with respect
to any similar breach in other circumstances.
IN WITNESS WHTEREOF, the Parties have caused their respective duly authorized
representatives to execute this Agreement as of the date first above written.
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EXHIBIT 10.9
TRANSLATION
Party A: Ctrip.com (Hong Kong) Limited
Authorized representative: ________________
Party B:
Signed: ____________________
Party C: An Affiliated Chinese Entity of Party A
Authorized representative: ________________