Operating Agreement - Ctrip Computer Technology (Shanghai) Co. Ltd.
TRANSLATION
Operating Agreement
This Agreement has been executed by and among the following parties on September
10, 2003 in Shanghai:
Party A: Ctrip Computer Technology (Shanghai) Co., Ltd.
Address: 3rd fl., Building 63, Hong Cao Road, Shanghai
Party B: An affiliated Chinese entity of Party A
Address:
Party C: One of the two shareholders of Party B
Home address:
Party D: Another shareholder of Party B
Home address:
Whereas:
(1) Party A is a wholly foreign owned entity set up in the People's
Republic of China (hereinafter referred to as "China");
(2) Party B is a domestic company with exclusively domestic capital
registered in China and has obtained approval from the Civil Aviation
Administration of China - Northern Region Administration Bureau to
engage in the air-ticketing business;
(3) Party A and Party B have set up a business relationship through the
execution of agreements such as the Consulting Services Agreement;
(4) In accordance with the Consulting Services Agreement executed by and
between Party A and Party B, Party B shall pay Party A certain service
fees, but the relevant fees have not been paid as of now, whereas Party
B's daily operations shall have a material effect on its ability to pay
the service fees to Party A;
(5) Party C is a shareholder of Party B, and holds 20% of Party B's shares;
(6) Party D is a shareholder of Party B, and holds 80% of Party B's shares;
and
(7) Party A and Party B agree to further clarify matters related to Party
B's operations in accordance with the provisions of this Agreement.
Wherefore, through mutual promises and agreement, the parties have reached the
following agreement:
1. To ensure the normal operations of Party B's business, Party A agrees that
subject to Party B's satisfaction of the provisions of this Agreement described
below, Party A shall guarantee the performance of contracts, agreements or
transactions executed by Party B related to its business operations. Party A's
guarantee obligations hereunder shall be secured by all of Party B's accounts
receivable and assets. According to the aforementioned performance guarantee
arrangements, Party A shall execute written
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EXHIBIT 10.13
TRANSLATION
guarantee contracts separately with the other parties to Party B's contracts as
Party B's performance guarantor, in order to undertake liabilities as a
guarantor.
2. In view of the requirements in Article 1 of this Agreement and to ensure the
performance of the various business agreements between Party A and Party B as
well as Party B's payment of service fees due Party A, Party B and its
shareholders - Party C and Party D hereby agree that unless Party A's prior
written consent is obtained, Party B shall not engage in any transactions that
may have a substantive impact on its assets, obligations, rights or the business
operations, including but not limited to the following contents:
2.1 Borrowing money from or undertaking debts of any third parties;
2.2 Selling to or obtaining from any third parties any assets or rights,
including but not limited to any intellectual property;
2.3 Providing any third parties with security interest on Party B's assets
or intellectual property; and
2.4 Assign agreements related to its business to any third parties.
3. To ensure the performance of the various business agreements between Party A
and Party B as well as Party B's payment of service fees due Party A, Party B
and its shareholders - Party C and Party D, hereby agree to accept the corporate
policies and guidance provided by Party A from time to time with respect to
Party B's hiring and discharge of employees, daily operations and management,
and the financial management system.
4. Party B and its shareholders - Party C and Party D, hereby agree Party B,
Party C and Party D will appoint the candidates nominated by Party A as Party
B's directors, and Party B shall appoint executives designated by Party A and
hired by Party A as directors, general manager and other executives of Party B.
In the event that the aforementioned Party A's directors and executives leave
Party A, whether they leave voluntarily or are discharged by Party A, they will
simultaneously lose the eligibility to serve in any position with Party B. In
such a case, Party B shall appoint other executives hired by Party A and
designated by Party A to such positions.
5. Party B and its shareholders - Party C and Party D, hereby agree and
acknowledge that except for the relevant covenants in Article 1 of this
Agreement, in the event that any performance guarantee or working capital loan
guarantee is required during Party B's business operations, Party B shall first
seek such a guarantee from Party A. In such a case, Party A shall have the right
but not the obligation to provide appropriate guarantees for Party B at its
discretion. In the event that Party A does not provide such a guarantee, Party A
shall promptly notify Party B in writing, so that Party B may seek such a
guarantee from a third party.
6. Upon the expiration or termination of any agreement between Party A and Party
B, Party A shall have the right but not the obligation to terminate all
agreements between Party A and Party B, including but not limited to the
Consulting Service Agreement.
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EXHIBIT 10.13
TRANSLATION
7. Any amendments and supplements to this Agreement shall be in writing. The
amendments and supplementary agreements that have been signed by the parties and
that relate to this Agreement shall be an integral part of this Agreement and
shall have the same legal validity as this Agreement.
8. This Agreement shall be governed by laws of China and shall be construed in
accordance therewith.
9. 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 dispute to the China International Economics and Trade Arbitration
Commission Shanghai Chapter for resolution by arbitration, in accordance with
its current arbitration rules. The arbitration shall be conducted in Shanghai,
and the language used during arbitration shall be Chinese. The arbitration
ruling shall be final and binding on both parties.
10. This Agreement shall be executed by the authorized representatives of the
parties as of the date first above written and shall take effect as of the even
date therewith. During the valid existence of Party A and Party B to this
Agreement, unless this Agreement is terminated early in accordance with the
applicable provisions thereof, this Agreement shall be valid for 10 years. Prior
to the expiration of this Agreement, this Agreement can only be renewed upon
written confirmation by Party A. The term of the renewal shall be determined by
Party A through its written notice.
IN WITNESS WHEREOF, the parties have caused their authorized representatives to
execute this Agreement as of the date first above written.
Party A: Ctrip Computer Technology (Shanghai) Co., Ltd.
Authorized representative: /S/
Party B:
Authorized representative: /S/
Party C:
/S/
Party D:
/S/