Share Sale and Purchase Agreement - China International Travel Service Head Office, CTN Holdings Ltd., Super Travel Ltd., Guangdong Hua Da Kang Investment Co. Ltd., Guangdong Suntek Information Industrial Co. Ltd., Guangzhou Xinrong Information Industrial Co. Ltd., Beijing Planet Network Travel Information Technology Ltd. and China Travel Network Co. Ltd.
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SHARE SALE AND PURCHASE AGREEMENT
among
CHINA INTERNATIONAL TRAVEL SERVICE HEAD OFFICE
CTN HOLDINGS LIMITED
SUPER TRAVEL LIMITED
GUANGDONG HUA DA KANG INVESTMENT CO., LTD.
GUANGDONG SUNTEK INFORMATION INDUSTRIAL CO., LTD.
GUANGZHOU XINRONG INFORMATION INDUSTRIAL CO., LTD.
BEIJING PLANET NETWORK TRAVEL INFORMATION TECHNOLOGY
LIMITED
and
CHINA TRAVEL NETWORK COMPANY LIMITED
Dated December 14, 2001
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TABLE OF CONTENTS
A. Purchase of Blue Quartz Shares............................................4
1. Sale and Purchase of the BQ Transferred Shares......................4
2. Closing of the Purchase of Blue Quartz Shares.......................5
3. Offshore Closing Deliverables.......................................6
4. CTN Holdings and CITSHO's Representations and Warranties............7
5. Super Travel Representations and Warranties.........................8
B. Purchase of CTN Registered Capital........................................9
1. Transfer of the Hua Da Kang Registered Capital,
the Xinrong Registered Capital and the CITSHO Registered Capital....9
2. Closing of the Transfer of Registered Capital......................10
3. Onshore Closing Deliverables.......................................11
4. CTN Shareholders' Representations and Warranties...................12
C. Payment of Consideration.................................................14
D. General Provisions.......................................................15
1. Severability.......................................................16
2. Notices............................................................17
3. Entire Agreement...................................................17
4. Waivers and Amendments; Preservation of Remedies...................17
5. Governing Law......................................................18
6. Counterparts.......................................................18
8. Further Assurances.................................................18
9. Confidentiality....................................................20
Execution ...................................................................22
SCHEDULES
Schedule 1 - Particulars of CTN Holdings......................................25
Schedule 2 - Particulars of Blue Quartz Limited...............................26
Schedule 3 - Particulars of CTN...............................................27
Schedule 4 - Particulars of employees of Beijing Planet Travel................28
APPENDICES
Appendix 1 - Form of the Deed of Termination..................................30
Appendix 2 - Form of the Equity Interest Transfer Contract....................33
Appendix 3 - Addresses of Parties.............................................48
Appendix 4 - Form of Non-Competition and Confidentiality Deed.................50
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THIS AGREEMENT (this "Agreement") is made this 14th day of December
2001, by and among:
(1) SUPER TRAVEL LIMITED ("Super Travel"), a limited liability
company organised under the laws of the BVI;
(2) CTN HOLDINGS LIMITED ("CTN Holdings"), a limited liability
company organised under the laws of the British Virgin Islands (the "BVI");
(3) CHINA INTERNATIONAL TRAVEL SERVICE HEAD OFFICE ("CITSHO"), a
State-owned enterprise established in Beijing, the People's Republic of China
("China" or the "PRC");
(4) GUANGDONG HUA DA KANG INVESTMENT CO., LTD ("Hua Da Kang"), a
limited liability company established in Guangdong Province, the PRC;
(5) GUANGDONG SUNTEK INFORMATION INDUSTRIAL CO., LTD ("Suntek"), a
limited liability company established in Guangdong Province, the PRC;
(6) GUANGZHOU XINRONG INFORMATION INDUSTRIAL CO., LTD ("Xinrong"), a
limited liability company established in Guangdong Province, the PRC;
(7) BEIJING PLANET NETWORK TRAVEL INFORMATION TECHNOLOGY LIMITED
("Beijing Planet Travel"), a wholly foreign owned limited liability company
established in Beijing, the PRC; and
(8) CHINA TRAVEL NETWORK COMPANY LIMITED ("CTN"), a limited liability
company established in Beijing, the PRC.
Each of CITSHO, CTN Holdings, Super Travel, Hua Da Kang, Suntek,
Xinrong, CTN and Beijing Planet Travel is herein referred to as a "Party" and
collectively as the "Parties".
R E C I T A L S
- - - - - - - -
A. As at the date of this Agreement, CTN Holdings is owned as to 35%
by W.T. Consolid Investment Holdings Limited ("Consolid"), 35% by Suntek Global
Information Resources Limited ("Suntek Global") and 30% by CITSHO.
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B. CTN Holdings owns 45% of the total shares (the "Blue Quartz
Shares") of Blue Quartz Limited ("Blue Quartz"), a limited liability company
incorporated in the BVI. The remaining 55% of the Blue Quartz Shares is owned by
Super Travel. The exact number of the Blue Quartz Shares held by CTN Holdings
and Super Travel, respectively, as at the date of this Agreement is set out in
Schedule 2.
C. CTN Holdings has agreed to sell to Super Travel and Super Travel
has agreed to purchase 45% of the Blue Quartz Shares (the "BQ Transferred
Shares"), upon the terms and subject to the conditions of this Agreement.
D. Upon the consummation of the purchase by Super Travel and the
completion of the restructuring of CTN Holdings, Super Travel shall own 100% of
the Blue Quartz Shares.
E. Pursuant to an equity transfer contract dated 30 May 2000 entered
into between Suntek and Xinrong, Suntek transferred its 35% interest in the
Registered Capital to Xinrong. As at the date hereof, Xinrong is the duly
registered owner of such 35% interest in the Registered Capital.
F. As at the date hereof, Hua Da Kang, Xinrong and CITSHO (the "CTN
Shareholders") own 35%, 35% and 30%, respectively, of the total registered
capital of CTN, being RMB10 million (the "Registered Capital").
G. Pursuant to the Exclusive Purchase Contract entered into by CTN
(for itself, and for and on behalf Hua Da Kang, CITSHO and Suntek) and Beijing
Planet Travel on January 28, 2000 (the "Exclusive Purchase Contract"), the CTN
Shareholders granted to Beijing Planet Travel an exclusive right to purchase, or
to nominate one or more persons or entities to purchase, from the CTN
Shareholders any or all of each such CTN Shareholder's portion of the Registered
Capital.
H. The Parties, including the parties to the Exclusive Purchase
Contract, have agreed to enter into this Agreement: (1) which shall supersede
the Exclusive Purchase Contract; and (2) under which Beijing Planet Travel shall
designate a purely domestic PRC company ("Nominee A") and a PRC national
("Nominee B") nominated by Super Travel (collectively, the "BPT Nominees") to
purchase Hua Da Kang's, Xinrong's and CITSHO's entire portions of the Registered
Capital (the "Hua Da Kang Registered Capital", the
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"Xinrong Registered Capital" and the "CITSHO Registered Capital") upon the terms
and conditions as hereinafter set out.
J. Upon the consummation of the transfers of the Registered Capital
described in Recital G above, Nominee A and Nominee B shall own 95% and 5%,
respectively, of the Registered Capital.
NOW, THEREFORE, in consideration of the covenants and agreements
contained herein, the Parties agree as follows:
A. Purchase of Blue Quartz Shares.
1. Sale and Purchase of the BQ Transferred Shares.
(a) Upon the terms and subject to the conditions of this
Agreement, CTN Holdings agrees to sell and transfer the BQ Transferred Shares to
Super Travel on the Offshore Closing Date (as defined below), and Super Travel
agrees to purchase from CTN Holdings the BQ Transferred Shares, free from all
claims, charges, liens, encumbrances and third party rights (collectively,
"Encumbrances") and with all rights attached or accruing thereto, including all
rights to any dividends or other distributions declared, paid or made in respect
of the BQ Transferred Shares after the date of this Agreement.
(b) Sale Restrictions. Each of CTN Holdings, Hua Da Kang,
Xinrong and CITSHO and/or such other persons (collectively, the "Holders of Tom
Shares") hereby acknowledges and agrees that the issuance by TOM.COM LIMITED
("tom") of the Consideration Tom Shares (as defined below) referred to in
Section C is subject to the following restrictions and shall ensure that the
Holders of Tom Shares if they are persons other than CTN Holdings, Hua Da Kang,
Xinrong or CITSHO shall undertake to comply with these restrictions, such
written undertaking to be provided by each Holders of Tom Shares to tom prior to
the issuance of the Consideration Tom Shares to such Holder of Tom Shares by
tom:
(i) Each Holder of Tom Shares may only sell, transfer,
mortgage, pledge, lend, hypothecate or otherwise dispose of (each, to "Sell" or
a "Sale") the Consideration Tom Shares six months after the later of (a) the
Offshore Closing Date; and (b) the Onshore Closing Date;
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(ii) Each Holder of Tom Shares may Sell or effect a Sale
of the Consideration Tom Shares from the beginning of the seventh month after
the later of (a) the Offshore Closing Date; and (b) the Onshore Closing Date,
PROVIDED THAT the aggregate number of the Consideration Tom Shares subject to
any Sale by such Holder of Tom Shares on any day may not exceed one percent of
the total Consideration Tom Shares issued to such Holder of Tom Shares; and
(iii) For the avoidance of doubt, if any Holder of Tom
Shares does not Sell the maximum permitted amount of the Consideration Tom
Shares stated above on any particular day, the amount not sold by such Holder of
Tom Shares shall not accrue to the amount permitted to be sold by such Holder of
Tom Shares on any subsequent day.
2. Closing of the Purchase of Blue Quartz Shares. Subject to the
terms of this Agreement, the closing of the purchase of BQ Transferred Shares
(the "Offshore Closing") shall take place on the third Business Day (as defined
below) after the date of a written notice from the CTN Holdings to Super Travel
that all the closing deliverables set forth in Section A3 can be delivered (the
"Offshore Closing Date") and shall occur at the offices of tom in the Hong Kong
Special Administrative Region of the PRC ("Hong Kong") or at such other location
mutually agreed to by CTN Holdings and Super Travel. For the purposes of this
Agreement, a "Business Day" shall mean any day on which banks are generally
opened for business in Hong Kong, other than a Saturday or a Sunday.
(a) On the Offshore Closing Date, CTN Holdings shall deliver to
Super Travel:
(i) instruments of transfer in respect of the BQ
Transferred Shares duly executed by CTN Holdings in favour of Super Travel;
(ii) all share certificates held by CTN Holdings in
respect of the BQ Transferred Shares;
(iii) letters of resignation duly executed by LI Luan, CHEN
Guoping and ZHOU Ziyong, Sandy (alias ZHOU Xiao Mei) each resigning from the
office of director and confirming that each has no claim against Blue Quartz for
remuneration, loss of office, pension, or otherwise;
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(iv) all other documents, records and other properties
belonging or related to Blue Quartz and all such documents as may be required by
Super Travel to give Super Travel good and legal title to the BQ Transferred
Shares; and
(v) a copy of the minutes of a meeting of the board of
directors of CTN Holdings approving the execution, delivery and performance of
this Agreement and the transactions contemplated hereby and authorising a person
to execute on its behalf this Agreement and all documents incidental thereto,
certified as true by a director of CTN Holdings.
(b) CTN Holdings and Super Travel shall procure that a meeting
of the board of directors of Blue Quartz is held on the Offshore Closing Date
immediately following the Offshore Closing at which resolutions shall be passed
to:
(i) approve the transfer of the BQ Transferred Shares to
Super Travel and the registration of Super Travel as the holder of the BQ
Transferred Shares;
(ii) authorise the issuance of a share certificate of Blue
Quartz in respect of the BQ Transferred Shares in the name of Super Travel; and
(iii) accept the resignations of LI Luan, CHEN Guoping and
ZHOU Ziyong, Sandy (alias ZHOU Xiao Mei) and to appoint the persons nominated by
Super Travel in writing, as directors of Blue Quartz.
3. Offshore Closing Deliverables. The Offshore Closing shall occur
as provided in Section A2 above after all of the deliverables stated herein can
be and will be delivered and/or completed (each of which may be waived by Super
Travel but without affecting any of its rights hereunder):
(a) CTN Holdings, Super Travel and Blue Quartz having executed a
termination deed with respect to the Blue Quartz shareholders' agreement
substantially in the form attached hereto as Appendix 1 (the "Termination
Deed").
(b) all representations and warranties made by CTN Holdings and
CITSHO in Section A4 being true and accurate on the Offshore Closing Date as if
made on and as of the Offshore Closing Date, and a certificate to that effect of
a director of CTN Holdings having been delivered to Super Travel on the Offshore
Closing Date;
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(c) CTN Holdings and Blue Quartz having carried out and attended
to all the relevant corporate procedures that are required under the laws of the
BVI in order to complete the sale and purchase of the BQ Transferred Shares;
(d) Consolid and Suntek Global having executed the
Non-Competition and Confidentiality Agreement (the form of which is
substantially set out in Appendix 4) with Super Travel, CTN and Blue Quartz each
agreeing not to compete with Super Travel and Blue Quartz, on terms similar to
those of Section B4(c) hereof, and be bound by certain confidentiality
provisions; and
(e) ZHOU Ziyong, Sandy (alias ZHOU Xiao Mei) having resigned as
chief executive officer of iTravel Limited, and having terminated the employment
agreement entered between herself and Super Channel Enterprises Limited on
12/th/ November, 1999, in the form and substance satisfactory to Super Travel.
4. CTN Holdings Representations and Warranties.
(a) Each of CTN Holdings and CITSHO represents and warrant to
Super Travel that each of the statements set out in this Section A4 is true and
accurate as at the date of this Agreement and as at the Offshore Closing Date.
(i) As at the Offshore Closing Date, Consolid, Suntek
Global and CITSHO will be the legal and beneficial owner of 35%, 35% and 30%,
respectively, of the issued and outstanding share capital of CTN Holdings, and
such shares and ownership by Consolid, Suntek Global and CITSHO of CTN Holdings,
respectively, will be fully paid, with no Encumbrance whatsoever on, over or
affecting any of such shares and ownership and no claim has been made by any
person to be entitled to any of such shares and ownership.
(ii) CTN Holdings is the legal and beneficial owner of the
BQ Transferred Shares set forth opposite its name in Schedule 2. As at the
Offshore Closing Date, each of the BQ Transferred Shares will be fully paid.
There is no Encumbrance whatsoever on, over or affecting any of the BQ
Transferred Shares and no claim has been made by any person to be entitled to
any of the foregoing. CTN Holdings is entitled to sell and transfer and procure
the sale and transfer of the full legal and beneficial ownership of the
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BQ Transferred Shares to Super Travel. No consent of any third party is required
for the transfer of the BQ Transferred Shares.
(iii) The BQ Transferred Shares constitute 45% of the
issued share capital of Blue Quartz and no person has the right to require the
creation of any Encumbrance over any of the BQ Transferred Shares.
(iv) The information set forth in Schedule 1 hereto will
be true, accurate and complete in all respects as at the Offshore Closing Date.
(v) The information set forth in Schedule 2 hereto will
be true, accurate and complete in all respects as at the Offshore Closing Date.
(vi) The information set forth in Schedule 3 hereto is
true, accurate and complete in all respects as at the date of this Agreement.
(vii) Save as disclosed to Super Travel, CTN Holdings has
no liabilities or commitments (whether actual or contingent) exceeding US$
10,000.
(viii) CTN Holdings has the requisite power, authority and
capacity to enter into this Agreement and all ancillary documents related
thereto and to perform and discharge their respective obligations thereunder in
accordance with their terms.
(ix) No order has been made, no petition has been
presented and no resolution has been passed or proposed and no analogous action
or proceedings in the BVI, the PRC or any other jurisdiction has been initiated
or taken for the purpose of winding up CTN Holdings or CTN.
(b) CTN Holdings, Consolid, Suntek Global and CITSHO hereby
jointly and severally covenant and agree to fully indemnify and to keep
indemnified Super Travel from and against all and any losses, damages, claims or
demands arising out of any breach of any of the representations or warranties
set out in Section A4 of this Agreement.
5. Super Travel Representations and Warranties.
(a) Super Travel represents and warrants to CTN Holdings that,
as at the Offshore Closing Date, there is no Encumbrance whatsoever on, over or
affecting any of
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the Consideration Tom Shares and no claim has been made by any person to be
entitled to any of the foregoing.
(b) Super Travel hereby covenants and agrees to fully indemnify
and to keep indemnified CTN Holdings from and against all and any losses,
damages, claims or demands arising out of any breach of any of the
representations or warranties set out in Section A5 of this Agreement.
B. Purchase of CTN Registered Capital.
1. Termination of the Exclusive Purchase Contract
Each of CTN, Hua Da Kang, CITSHO, Suntek, and Beijing Planet
Travel hereby releases the other parties to the Exclusive Purchase Contract
absolutely from all obligations owed by them under the Exclusive Purchase
Contract, and agrees that the Exclusive Purchase Contract shall be terminated
and shall have no further effect upon the execution of this Agreement by all of
the Parties.
2. Transfer of the Hua Da Kang Registered Capital, the Xinrong
Registered Capital and the CITSHO Registered Capital.
(a) Beijing Planet Travel hereby exercises its right with
respect to the Hua Da Kang Registered Capital, the Xinrong Registered Capital
and the CITSHO Registered Capital pursuant to the Exclusive Purchase Contract
and designates the BPT Nominees as the transferees of these interests. The CTN
Shareholders and CTN hereby irrevocably waive the requirement of notice set
forth in the Exclusive Purchase Contract and the requirement that the right be
exercised on a pro rata basis with each CTN Shareholder selling to Beijing
Planet Travel or the BPT Nominees its pro rata share of the Registered Capital
set forth in the Exclusive Purchase Contract and agree to the consideration set
forth in Section C of this Agreement and that as set forth in the Exclusive
Purchase Contract.
Each CTN Shareholder hereby waives any rights conferred on it by the articles of
association of CTN (the "CTN Articles") or pursuant to any agreement among the
CTN Shareholders or otherwise over the Registered Capital being transferred by
Hua Da Kang, Xinrong and CITSHO.
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(b) Each of the CTN Shareholders and CTN shall, and Beijing
Planet Travel shall cause each of the BPT Nominees to, execute an Equity
Interest Transfer Contract (the "Equity Interest Transfer Contract"),
substantially in the form attached hereto as Appendix 2 to evidence the transfer
of the Hua Da Kang Registered Capital, the Xinrong Registered Capital and the
CITSHO Registered Capital.
3. Closing of the Transfer of Registered Capital. Subject to the
terms of this Agreement, the onshore closing (the "Onshore Closing") shall take
place on the third Business Day after the date of a written notice from the CTN
Shareholders to the BPT Nominees that all the closing deliverables set forth in
Section B3 can be delivered (the "Onshore Closing Date") and shall occur at the
offices of tom in Hong Kong or at such other location mutually agreed to by the
CTN Shareholders, CTN and Beijing Planet Travel.
(a) on the Onshore Closing Date, the CTN Shareholders shall
deliver, or cause to be delivered the following:
(i) any and all documentation required by Beijing Planet
Travel to evidence that the Hua Da Kang Registered Capital, the Xinrong
Registered Capital and the CITSHO Registered Capital have been transferred to
each of the BPT Nominees pursuant to the Equity Interest Transfer Contract and
that each such transfer has been duly registered with the relevant authorities;
(ii) the books (which shall be written up to, but not
including, the Onshore Closing), original copy of the business license, the CTN
Articles, originals of any and all licenses issued by any government authority ,
all CTN chops and all other papers, books of account, records and documents of
CTN;
(iii) letters of resignation duly executed by LI Luan, HE
Ruchang, ZHAI Caizhong, ZHOU Ziyong, Sandy (alias ZHOU Xiao Mei), CHEN Guoping
and LI Nan each resigning from the office of director and confirming that they
have no claim against CTN for remuneration, loss of office, pension, or
otherwise;
(iv) all other documents, records and other properties
belonging or related to CTN and all such documents as may be required by the BPT
Nominees to give each of the BPT Nominees good and legal title to the Hua Da
Kang Registered Capital, the Xinrong Registered Capital and the CITSHO
Registered Capital;
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(v) a copy of the minutes of the meetings of the boards
of directors of Hua Da Kang, Xinrong and CITSHO approving the execution,
delivery and performance by Hua Da Kang, Xinrong and CITSHO, respectively, of
this Agreement and the transactions contemplated hereby and authorising a person
to execute on its behalf this Agreement and all documents incidental thereto,
respectively certified as true by a director of Hua Da Kang, a director of
Xinrong and a director of CITSHO; and
(vi) a copy of a valuation report issued by the PRC State
Owned Assets Administration Bureau certifying that the amount of the net
tangible assets of CTN ("Net Assets") as at the date of the Equity Interest
Transfer Contract and as at the date of completion of the transfer of the Hua Da
Kang Registered Capital, the Xinrong Registered Capital and the CITSHO
Registered Capital to the BPT Nominees ("Equity Interest Transfer Date") is
equal to or less than zero and thereby the value of the CITSHO Registered
Capital as at the date of the Equity Interest Transfer Contract and as at the
Equity Interest Transfer Date is equal to or less than zero.
The CTN Shareholders shall procure that a meeting of the
board of directors of CTN is held on the Onshore Closing Date immediately
following the Onshore Closing at which resolutions shall be passed to:
(vii) accept the resignations of LI Luan, HE Ruchang, ZHAI
Caizhong, ZHOU Ziyong, Sandy (alias ZHOU Xiao Mei), CHEN Guoping and LI Nan and
to appoint the persons nominated by the BPT Nominees in writing as directors of
CTN; and
(viii) revoke all existing instructions in relation to the
bank accounts of CTN.
4. Onshore Closing Deliverables. The Onshore Closing shall occur as
provided in Section B2 above after all of the deliverables stated herein can be
and will be delivered and/or completed (each of which may be waived by any of
Super Travel or the BPT Nominees but without affecting any of their rights
hereunder):
(a) the board of directors of CTN having adopted the revisions
to the CTN Articles, amended to indicate that Nominee A and Nominee B hold 95%
and 5%, respectively, of the Registered Capital;
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(b) Beijing Planet Travel being satisfied with the financial
position of CTN, and any assets or liabilities of CTN requested by Beijing
Planet Travel to be assigned or transferred by CTN to one or more of the CTN
Shareholders having been duly and properly assigned and transferred;
(c) all representations and warranties made by the CTN
Shareholders set forth in Section B4 being true and accurate on the Onshore
Closing Date as if made on and as of the Onshore Closing Date and a certificate
to that effect of a director of each of the CTN Shareholders having been
delivered to Beijing Planet Travel on the Onshore Closing Date;
(d) the CTN Shareholders and CTN having carried out and attended
to all the relevant corporate procedures that are required under the laws of the
PRC in order to complete the transfer of the Hua Da Kang Registered Capital, the
Xinrong Registered Capital and the CITSHO Registered Capital to the BPT
Nominees;
(e) the employees whose names are set out in Schedule 4 having
terminated their employment contracts with Beijing Planet Travel in the form and
substance satisfactory to Beijing Planet Travel; and
(f) a copy, certified as true by a director of CTN, of the CTN
Articles dated before the date hereof, duly signed and sealed by all of the CTN
Shareholders and sealed with the official seal of the Beijing Municipal
Administration of Industry and Commerce indicating that the Registered Capital
is owned as to 30% by CITSHO, 35% by Hua Da Kang and 35% by Xinrong as at the
date hereof.
5. CTN Shareholders' Representations and Warranties.
(a) The CTN Shareholders hereby jointly and severally represent
and warrant to each of Beijing Planet Travel and the BPT Nominees that each of
the statements set out in this Section B4 is true and accurate as at the date of
the Equity Interest Transfer Contract and as at the Equity Interest Transfer
Date.
(i) Hua Da Kang is the legal and beneficial owner of the
Hua Da Kang Registered Capital and is entitled to sell and transfer and procure
the sale and transfer of the full legal and beneficial ownership of the Hua Da
Kang Registered Capital to Nominee A.
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(ii) Xinrong is the legal and beneficial owner of the
Xinrong Registered Capital and is entitled to sell and transfer and procure the
sale and transfer of the full legal and beneficial ownership of the Xinrong
Registered Capital to Nominee A.
(iii) CITSHO is the legal and beneficial owner of the
CITSHO Registered Capital and is entitled to sell and transfer and procure the
sale and transfer of the full legal and beneficial ownership of the CITSHO
Registered Capital to Nominee A and Nominee B.
(iv) There is no Encumbrance whatsoever on, over or
affecting the Hua Da Kang Registered Capital, the Xinrong Registered Capital or
the CITSHO Registered Capital and no claim has been made by any person to be
entitled to any of the foregoing. No consent of any third party is required for
the transfer of the Hua Da Kang Registered Capital, the Xinrong Registered
Capital or the CITSHO Registered Capital.
(v) The Hua Da Kang Registered Capital constitutes 35% of
the Registered Capital, and no person has the right to require the creation of
any Encumbrance over the Hua Da Kang Registered Capital.
(vi) The Xinrong Registered Capital constitutes 35% of the
Registered Capital, and no person has the right to require the creation of any
Encumbrance over the Xinrong Registered Capital.
(vii) The CITSHO Registered Capital constitutes 30% of the
Registered Capital, and no person has the right to require the creation of any
Encumbrance over the CITSHO Registered Capital.
(viii) After acquisition of the Hua Da Kang Registered
Capital, the Xinrong Registered Capital and the CITSHO Registered Capital,
Nominee A and Nominee B shall own 95% and 5%, respectively, of the Registered
Capital, and no person has the right to require the creation of any Encumbrance
over the Registered Capital.
(ix) The information set out in Schedule 3 hereto is true,
accurate and complete in all respects.
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(x) All audited financial statements and any filings with
respect to taxes provided by the CTN Shareholders to Beijing Planet Travel and
Super Travel and their professional advisors prior to this Agreement, was when
given, and is at the date of this Agreement, true and accurate and there is no
fact, matter of circumstance which has not been disclosed to Beijing Planet
Travel, Super Travel or its professional advisors which renders any such
information untrue, inaccurate, misleading or which might affect the willingness
of Beijing Planet Travel or Super Travel to complete the Onshore Closing and the
Offshore Closing, respectively. CTN has no assets or liabilities other than the
assets and liabilities reflected in the audited financial statements incurred in
the ordinary course of business. CTN has not guaranteed any indebtedness of any
other person. Save as disclosed, CTN has not entered into any guarantee,
undertaking or other similar obligations with any person or entity, and CTN has
no liabilities or commitments (whether actual or contingent) exceeding
US$10,000.
(xi) Each of Hua Da Kang, Xinrong and CITSHO has the
requisite power, authority and capacity to enter into this Agreement and all
ancillary documents related thereto and to perform and discharge their
respective obligations thereunder in accordance with their terms.
(xii) No order has been made, no petition has been
presented and no resolution has been passed or proposed and no analogous action
or proceedings in the PRC or any other jurisdiction has been initiated or taken
for the purpose of winding up CTN.
(xiii) CTN has received all necessary rights, licenses,
permits, approvals, waivers and authorisations to conduct its business as
previously and currently conducted and as contemplated to be conducted. CTN is
not in breach of or default under any such rights, licenses, permits, approvals,
waivers and authorisations and each of such rights, licences, permits,
approvals, waivers and authorisations is still in full force and effect.
(xiv) The amount of the Net Assets is equal to or less than
zero.
(b) The CTN Shareholders hereby jointly and severally covenant
and agree to fully indemnify and to keep indemnified each of Beijing Planet
Travel, Super Travel and the BPT Nominees from and against all and any losses,
damages, claims or demands
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arising out of any breach of any of the representations or warranties set out in
Section B4 of this Agreement.
(c) Each of Hua Da Kang, CTN Holdings and Suntek and Xinrong
jointly and severally agrees and covenants that for a period of ten years
following the date of this Agreement, they shall not, and shall cause each of
its Affiliates (as such term is defined in the Amended and Restated
Shareholders' Agreement), not to, directly or indirectly through its nominees,
Affiliates, any other persons or investments, in any form or manner, engage in
online and/or offline travel services or any business related and/or incidental
thereto, including, without limitation, the provision of travel information and
content ("Travel Business") and any other activities that is similar to, or
competes with or likely to compete with the Travel Business, whether for its,
his or her own account or for the account of any other person. The Parties agree
that if any court or arbitration tribunal determines that this Section, or any
part thereof, is invalid or unenforceable, the remainder of this Section shall
not thereby be affected and shall be given full effect without regard to the
invalid portions. In addition, if any court or arbitration tribunal determines
that this Section, or any part thereof, is unenforceable because of the duration
or geographical scope, such court or arbitration tribunal shall have the power
to reduce the duration or scope, as the case may be, and, in its reduced form,
this Section shall then be enforceable. Furthermore, if any of Hua Da Kang, CTN
Holdings, Suntek or Xinrong breaches this Section, the non-breaching Party shall
have the right and remedy to, in addition to and not in lieu of any other right
or remedy available to the non-breaching Party under law or in equity, have such
breach specifically enforced by any court or arbitration tribunal having
jurisdiction. Each of Hua Da Kang, CTN Holdings, Suntek and Xinrong acknowledges
and agrees that any breach of this Agreement will cause irreparable injury to
the non-breaching Party and that monetary damages will not provide an adequate
remedy to the non-breaching Party.
C. Payment of Consideration.
1. Consideration Shares. In consideration of CTN Holdings selling
the BQ Transferred Shares to Super Travel and of CTN Shareholders transferring
the Hua Da Kang Registered Capital, the Xinrong Registered Capital and the
CITSHO Registered Capital to the BPT Nominees, and subject to obtaining the
relevant approvals from The Stock Exchange of Hong Kong Limited and other
governmental approvals (including the relevant regulatory approvals in the PRC),
Super Travel and BPT Nominees shall procure tom to
15
<PAGE>
issue to CTN Holdings and CTN Shareholders (or such other persons as directed by
them) an aggregate of 4,300,000 common shares of par value HK$0.10 each (or of
such other amount as shall result from a sub-division, consolidation,
reclassification or reconstruction of the share capital of tom from time to
time) in the share capital of tom credited as fully paid at HK$5.51 each (the
"Consideration Tom Shares"). The Consideration Tom Shares shall be issued to
each of the Holders of Tom Shares in such portions as directed and notified in
writing by CTN Holdings and/or CTN to Super Travel within seven Business Days
after the later of (a) the Offshore Closing; and (b) the Onshore Closing Date.
Other than the Consideration Tom Shares to be issued by tom as stated above,
Super Travel and BPT Nominees shall have no additional liability to CTN
Holdings, Hua Da Kang, Suntek, Xinrong, CITSHO or any other persons for the BQ
Transferred Shares and the Registered Capital being transferred hereunder.
2. Closing. On or before the seventh Business Day after the later of
(a) the Offshore Closing Date; and (b) the Onshore Closing Date, Super Travel
shall deliver to each Holder of Tom Shares as specified in writing pursuant to
Section C1 above:
(a) share certificates, with respect to the Consideration Tom
Shares, in the name of such Holder of Tom Shares and in such number of
Consideration Tom Shares as directed by CTN Holdings and/or CTN Shareholders in
accordance with Section C, if they elect to receive the shares manually; or
(b) a receipt evidencing that the Consideration Tom Shares have
been deposited in the broking account designated by CTN Holdings and/or CTN
Shareholders, if they elect to receive the shares electronically. The election
by CTN Holdings and/or CTN Shareholders with respect to manner of receipt of the
Consideration Tom Shares must be made by written notice to Super Travel by CTN
Holdings and/or CTN Shareholders at least fourteen Business Days prior to the
later of (a) the Offshore Closing Date; and (b) the Onshore Closing Date, and if
CTN Holdings/ CTN Shareholders elects to receive the Consideration Tom Shares
electronically, such election notice must designate the broking account in which
the Consideration Tom Shares are to be deposited.
D. General Provisions.
1. Severability. In the event any one or more of the provisions
contained in this Agreement should be held under any law or regulation to be
invalid, illegal or
16
<PAGE>
unenforceable in any respect, such provision shall be severable and the
validity, legality and enforceability of the remaining provisions contained
herein shall not in any way be affected or impaired thereby. The Parties shall
endeavour in good faith negotiations to replace the invalid, illegal or
unenforceable provisions with valid provisions, the economic effect of which
comes as close as possible to that of the invalid, illegal or unenforceable
provisions.
2. Notices. Notices or other communications required to be given by
any Party pursuant to this Agreement shall be written in English and delivered
in person or sent by an internationally recognised courier service or by
facsimile to the address of the other Parties set forth in Appendix 3 or to such
other address as may from time to time be designated by the other Parties
through notification to such Party. The dates on which notices shall be deemed
to have been effectively given shall be determined as follows:
(a) notices given by personal delivery shall be deemed
effectively given on the date of personal delivery;
(b) notices sent by an internationally recognised courier
service shall be deemed effectively given on the third day after the date
deposited with such courier service;
(c) notices given by facsimile shall be deemed effectively given
on the first business day following the date of transmission, as indicated on
the transmission confirmation slip of the document in question; and
(d) notices given by email shall be deemed effectively given on
the same business day of the day of transmission as indicated on the email
notice or reply transmission confirmation, or the next business day if the day
of transmission is not a business day at the place of the recipient of the
notice.
3. Entire Agreement. This Agreement, together with its Schedules,
constitutes the complete and only agreement among the Parties on the subject
matter of this Agreement, and this Agreement and its Schedules and Appendices
replace all previous oral or written agreements, contracts, understandings and
communications of the Parties in respect of the subject matter of this Agreement
and its Schedules and Appendices.
4. Waivers and Amendments; Preservation of Remedies. This Agreement
may be amended, superseded, cancelled, renewed or extended, and the terms hereof
may be
17
<PAGE>
waived, only by a written instrument signed by the Parties or, in the case of a
waiver, by the Party waiving compliance. No delay on the part of any Party in
exercising any right, power or privilege hereunder shall operate as a waiver
thereof, nor shall any waiver on the part of any Party of any such right, power
or privilege, nor any single or partial exercise of any such right, power or
privilege, preclude any further exercise thereof or the exercise of any other
such right, power or privilege. The rights and remedies herein provided are
cumulative and are not exclusive of any rights or remedies that any Party may
otherwise have at law or in equity.
5. Governing Law and Jurisdiction. This Agreement shall be governed
by and construed in accordance with the laws of Hong Kong. The Parties hereby
irrevocably submit to the exclusive jurisdiction of the courts of Hong Kong.
6. Counterparts. This Agreement is executed by each Party in English
in one or more counterparts, each of which shall be deemed an original and all
of the counterparts together shall constitute one and the same instrument.
7. Process agents
(a) CITSHO hereby irrevocably appoints Mr. CHEN Guoping c/o 18th
Floor, Sang Woo Building, 227-228 Gloucester Road, Causeway Bay, Hong Kong as
its agent to receive and acknowledge on its behalf service of any notice, writ,
summons, order, judgement or communication relation to this Agreement and
further agrees that any legal process or notice shall be sufficiently served on
it if delivered to such agent for service at its address as set out above for
the time being in Hong Kong.
(b) CTN Holdings hereby irrevocably appoints Mr. CHEN Guoping
c/o 18th Floor, Sang Woo Building, 227-228 Gloucester Road, Causeway Bay, Hong
Kong as its agent to receive and acknowledge on its behalf service of any
notice, writ, summons, order, judgement or communication relation to this
Agreement and further agrees that any legal process or notice shall be
sufficiently served on it if delivered to such agent for service at its address
as set out above for the time being in Hong Kong.
(c) Hua Da Kang hereby irrevocably appoints Mr. CHEN Guoping c/o
18th Floor, Sang Woo Building, 227-228 Gloucester Road, Causeway Bay, Hong Kong
as its agent to receive and acknowledge on its behalf service of any notice,
writ, summons,
18
<PAGE>
order, judgement or communication relation to this Agreement and further agrees
that any legal process or notice shall be sufficiently served on it if delivered
to such agent for service at its address as set out above for the time being in
Hong Kong.
(d) Suntek hereby irrevocably appoints Mr. CHEN Guoping c/o 18th
Floor, Sang Woo Building, 227-228 Gloucester Road, Causeway Bay, Hong Kong as
its agent to receive and acknowledge on its behalf service of any notice, writ,
summons, order, judgement or communication relation to this Agreement and
further agrees that any legal process or notice shall be sufficiently served on
it if delivered to such agent for service at its address as set out above for
the time being in Hong Kong.
(e) Xinrong hereby irrevocably appoints Mr. CHEN Guoping c/o
18th Floor, Sang Woo Building, 227-228 Gloucester Road, Causeway Bay, Hong Kong
as its agent to receive and acknowledge on its behalf service of any notice,
writ, summons, order, judgement or communication relation to this Agreement and
further agrees that any legal process or notice shall be sufficiently served on
it if delivered to such agent for service at its address as set out above for
the time being in Hong Kong.
(f) CTN hereby irrevocably appoints Mr. CHEN Guoping c/o 18th
Floor, Sang Woo Building, 227-228 Gloucester Road, Causeway Bay, Hong Kong as
its agent to receive and acknowledge on its behalf service of any notice, writ,
summons, order, judgement or communication relation to this Agreement and
further agrees that any legal process or notice shall be sufficiently served on
it if delivered to such agent for service at its address as set out above for
the time being in Hong Kong.
8. Further Assurances. Each of the Parties shall execute such
documents and other papers and take such further actions as may be reasonably
required or desirable to carry out the provisions hereof and the transactions
contemplated hereby.
9. Confidentiality.
(a) Each of the CTN Shareholders, CTN Holdings and Suntek
undertakes that it shall not reveal, and shall cause its shareholders,
directors, senior executives, employees and agents not to reveal, to any third
party any confidential or proprietary information concerning the organisation,
business, technology, finance, transactions or affairs of CTN and/or Blue Quartz
or any of their subsidiaries (which has the
19
<PAGE>
meaning attributed to it in section 2 of the Companies Ordinance (Chapter 32 of
the Laws of Hong Kong)), or any other Party (collectively, the "Confidential
Information") without the prior written consent of the other Parties or except
as herein provided.
(b) The Confidential Information obtained by any of the CTN
Shareholders, CTN Holdings and Suntek that is restricted hereunder may be
disclosed by that Party only to its designated employees whose duties require
such disclosure for the implementation of this Agreement. In that event, the
receiving Party shall take all reasonable precautions, including the conclusion
of confidentiality contracts with each such employee or the inclusion of
confidentiality clauses in the individual labour contract with each such
employee, to prevent such employees from using the Confidential Information for
their personal benefit and to prevent any unauthorised disclosure of such
Confidential Information to any third party.
(c) Each of the CTN Shareholders, CTN Holdings and Suntek shall
take all necessary security measures and precautions to protect the
confidentiality of the Confidential Information. Such security measures and
precautions shall be commensurate with the measures and precautions that such
Party respectively takes for the protection of corresponding sensitive
information of its own, which shall in any event be at least of the standard
that would be applied by a reasonable business for the protection of its own
highly confidential information and trade secrets.
(d) Notwithstanding the foregoing, any of the CTN Shareholders,
CTN Holdings and Suntek may reveal Confidential Information to outside and
internal lawyers, accountants and consultants to the extent necessary for them
to provide their professional assistance, provided that the Confidential
Information so revealed in written form is marked confidential and that such
government personnel and outside individuals shall be requested to undertake to
respect the confidentiality provisions of this Agreement. Any of the CTN
Shareholders, CTN Holdings and Suntek may also disclose the Confidential
Information if disclosure is required by applicable law, regulation or legal
process or by judicial order.
(e) Nothing in this Section D9 shall prevent any of the CTN
Shareholders, CTN Holdings or Suntek from using or disclosing any of the
Confidential Information which: (i) is already known by such Party at the time
it is disclosed to it; (ii) has
20
<PAGE>
been rightfully received by such Party from a third party without a breach of an
obligation of confidentiality hereunder; (iii) is in the public domain through
no wrongful act of such Party; or (iv) is independently developed by such Party
without use, directly or indirectly, of the Confidential Information.
21
<PAGE>
IN WITNESS WHEREOF, the Parties have executed this Agreement as a deed as
of the date first above written.
SIGNED, SEALED and DELIVERED )
by )
for and on behalf of )
CHINA INTERNATIONAL )
TRAVEL SERVICE HEAD OFFICE )
in the presence of: )
)
The COMMON SEAL of )
CTN HOLDINGS LIMITED )
was hereunto affixed )
by resolution of its board of directors )
in the presence of: )
)
The COMMON SEAL of )
SUPER TRAVEL LIMITED )
was hereunto affixed )
by resolution of its board of directors )
in the presence of: )
)
22
<PAGE>
SIGNED, SEALED and DELIVERED )
by )
for and on behalf of )
GUANGDONG HUA DA KANG )
INVESTMENT CO., LTD. )
in the presence of: )
)
SIGNED, SEALED and DELIVERED )
by )
for and on behalf of )
GUANGDONG SUNTEK INFORMATION )
INDUSTRIAL CO., LTD. )
in the presence of: )
)
SIGNED, SEALED and DELIVERED )
by )
for and on behalf of )
GUANGZHOU XINRONG INFORMATION )
INDUSTRIAL CO., LTD. )
in the presence of: )
)
23
<PAGE>
SIGNED, SEALED and DELIVERED )
by )
for and on behalf of )
BEIJING PLANET NETWORK TRAVEL )
INFORMATION TECHNOLOGY LIMITED )
in the presence of: )
)
SIGNED, SEALED and DELIVERED )
by )
for and on behalf of )
CHINA TRAVEL NETWORK )
COMPANY LIMITED )
in the presence of: )
)
24
<PAGE>
Schedule 1
----------
Particulars of CTN Holdings
---------------------------
Name: CTN Holdings Limited
Company Number: 346071
Place of Incorporation: British Virgin Islands
Date of Incorporation: September 30, 1999
Authorised share capital: US$50,000
Issued share capital: 100 Shares
Members: Consolid - 35 shares
Suntek Global - 35 shares
CITSHO - 30 shares
Directors : LI Luan
HE Ruchang
ZHAI Caizhong
ZHOU Ziyong, Sandy (alias ZHOU Xiao Mei)
CHEN Guoping
LI Nan
25
<PAGE>
Schedule 2
----------
Particulars of Blue Quartz Limited
----------------------------------
Name: Blue Quartz Limited
Company Number: 338515
Place of Incorporation: British Virgin Islands
Date of Incorporation: August 12, 1999
Authorised Share Capital: US$50,000
Issued Share Capital: 50,000
Members: CTN Holdings Limited - 22,500 shares
Super Travel Limited - 27,500 shares
Directors: Frank SIXT
Debbie CHANG
Edmond IP
Sing WANG
LI Lu'an
CHEN Guoping
ZHOU Ziyong, Sandy (alias ZHOU Xiao Mei)
26
<PAGE>
Schedule 3
----------
Particulars of CTN
------------------
Name: China Travel Network Co., Ltd.
Date of Establishment: October 20, 1997
Place of Establishment: Beijing, PRC
Registered Capital: RMB10,000,000
Shareholders: China International Travel Service Head
Office
Guangzhou Xinrong Information Industrial Co.,
Ltd.
Guangdong Hua Da Kang Investment Co., Ltd.
Business Term: 20 Years
Shareholdings: China International Travel Service Head
Office, 30%
Guangzhou Xinrong Information Industrial Co.,
Ltd. 35%
Guangdong Hua Da Kang Investment Co., Ltd.,
35%
Directors: LI Luan
HE Ruchang
ZHAI Caizhong
ZHOU Ziyong, Sandy (alias ZHOU Xiao Mei)
CHEN Guoping
LI Nan
27
<PAGE>
Schedule 4
----------
Particulars of employees of Beijing Planet Travel
-------------------------------------------------
28
<PAGE>
Appendix 1
----------
Form of the Deed of Termination
-------------------------------
DATED 2001
---------------------------------------
CTN HOLDINGS LIMITED
- and -
SUPER TRAVEL LIMITED
- and -
BLUE QUARTZ LIMITED
-------------------
DEED OF TERMINATION
-------------------
29
<PAGE>
THIS AGREEMENT is made on the ___ day of ______ 2001
BETWEEN:
(1) CTN HOLDINGS LIMITED, an international business company incorporated in the
British Virgin Islands with limited liability and whose registered office
is at P.O. Box 957, Offshore Incorporations Centre, road Town, Tortola, the
British Virgin Islands ("CTN Holdings");
(2) SUPER TRAVEL LIMITED (formerly known as Topmost Profits Limited), an
international business company incorporated in the British Virgin Islands
with limited liability and whose registered office is at P.O. Box 957,
Offshore Incorporations Centre, Road Town, Tortola, the British Virgin
Islands ("Super Travel"); and
(3) BLUE QUARTZ LIMITED, an international business company incorporated in the
British Virgin Islands with limited liability and whose registered office
is at P.O. Box 957, Offshore Incorporations Centre, Road Town, Tortola, the
British Virgin Islands ("Company").
WHEREAS:
(A) CNT Holdings, Super Travel and the Company (each a "Party" and
collectively, the "Parties") entered into a shareholders' agreement dated 4
October 1999 in respect of the Company ("Shareholders Agreement").
(B) In connection with a share sale and purchase agreement dated ______________
2001 ("Sale and Purchase Agreement") entered into between, inter alia, CTN
Holdings and Super Travel, the Parties have agreed to enter into this Deed
to terminate the Shareholders Agreement and to release each Party from all
obligations owed to the other Parties under the Shareholders Agreement upon
the terms and conditions set out in this Deed.
NOW IT IS HEREBY AGREED as follows:
1. In this Deed, terms and expressions defined in the Shareholders Agreement
shall have the same meanings when used in this Deed, unless the context
requires otherwise.
2. Each Party hereby releases the other Parties absolutely from all
obligations owed by them under the Shareholders Agreement, and agree that
the Shareholders Agreement shall be terminated and shall have no further
effect upon the execution of this Deed by all of the Parties.
3. This Deed shall be governed by and construed in accordance with the laws of
the Hong Kong Special Administrative Region of the PRC ("Hong Kong") and
the Parties hereby irrevocably submit to the non-exclusive jurisdiction of
the courts of Hong Kong.
30
<PAGE>
IN WITNESS whereof the Parties have executed this Deed on the date first above
written.
The COMMON SEAL of )
CTN HOLDINGS LIMITED )
was hereunto affixed )
by resolution of its board of directors )
in the presence of: )
)
The COMMON SEAL of )
SUPER TRAVEL LIMITED )
was hereunto affixed )
by resolution of its board of directors )
in the presence of: )
)
The COMMON SEAL of )
BLUE QUARTZ LIMITED )
was hereunto affixed )
by resolution of its board of directors )
in the presence of: )
)
31
<PAGE>
Appendix 2
----------
Form of the Equity Interest Transfer Contract
---------------------------------------------
32
<PAGE>
Appendix 3
----------
Addresses of Parties
--------------------
CITSHO : China International Travel Service Head Office
Guolu Building
No. 103 Fuxingmenwaida Street
Beijing
the PRC
Attn: Mr. LI Luan
Fax: (86-21) 6605 2235
CTN Holdings : CTN Holdings Limited
c/o 18th Floor, Sang Woo Building
227-228 Gloucester Road
Causeway Bay
Hong Kong
Attn: Mr. CHEN Guoping
Fax: (852) 2977 5183
Super Travel : Super Travel Limited
48/th/ Floor
The Center
99 Queen's Road Central
Central
Hong Kong
Attn: Company Secretary
Fax: (852) 2189-7446
Hua Da Kang : Guangdong Hua Da Kang Investment Co., Ltd.
c/o 18th Floor, Sang Woo Building
227-228 Gloucester Road
Causeway Bay
Hong Kong
Attn: Mr. CHEN Guoping
Fax: (852) 2977 5183
33
<PAGE>
Suntek : Guangdong Suntek Information Industrial Co., Ltd.
No. 51-53 Jianzhong Road
Gaoxin Technology Industrial Park
Tianhe District
Guangzhou
the PRC
Attn: Ms. ZHOU Ziyong
Fax: (86-20) 8553 2368
Xinrong : Guangzhou Xinrong Information Industrial Co., Ltd.
7th Floor
No. 13-15 Shipaixi Road
Guangzhou
the PRC
Attn: Ms. ZHOU Ziyong
Fax: (86-20) 8553 2368
Beijing Planet : Beijing Planet Network Travel Information
Travel Technology Limited
8th Floor
Tower W3, Oriental Plaza
No. 1 Dong Chang An Avenue
Dong Cheng District
Beijing
the PRC
Attn: Ms. DOU Lijun
Fax: (86-21) 8518 1580
CTN : China Travel Network Company Limited
Rooms 1-6, 9th Floor
Tower W3, Oriental Plaza
No. 1 Dong Chang An Avenue
Dong Cheng District
Beijing
the PRC
Attn: Ms. ZHOU Ziyong
Fax: (86-20) 8553 2368
34
<PAGE>
Appendix 4
----------
Form of the Non-Competition and Confidentiality Deed
----------------------------------------------------
--------------------------------------------------------------------------------
NON-COMPETITION AND CONFIDENTIALITY DEED
among
BLUE QUARTZ LIMITED
CHINA TRAVEL NETWORK COMPANY, LIMITED
W.T. CONSOLID INVESTMENT HOLDINGS LIMITED
SUNTEK GLOBAL INFORMATION RESOURCES LIMITED
and
SUPER TRAVEL LIMITED
Dated _________________________ 2001
--------------------------------------------------------------------------------
35
<PAGE>
TABLE OF CONTENTS
1. Definitions..............................................................38
2. Non-Competition..........................................................39
3. Confidentiality..........................................................19
4. Other Provisions.........................................................41
<PAGE>
NON-COMPETITION AND CONFIDENTIALITY DEED
THIS NON-COMPETITION AND CONFIDENTIALITY DEED (this "Deed") is made on
the ___ day of ______ 2001 among:
(1) BLUE QUARTZ LIMITED ("Blue Quartz"), a company organized and
existing under the laws of the British Virgin Islands ("BVI");
(2) CHINA TRAVEL NETWORK COMPANY, LIMITED, a limited liability
company established in Beijing, the People's Republic of China ("PRC") ("CTN");
(3) W.T. CONSOLID INVESTMENT HOLDINGS LIMITED ("Consolid"), a company
organized and existing under the laws of the Hong Kong Special Administrative
Region of the PRC ("Hong Kong");
(4) SUNTEK GLOBAL INFORMATION RESOURCES LIMITED ("Suntek Global"), a
company organized and existing under the laws of Hong Kong; and
(5) SUPER TRAVEL LIMITED ("Super Travel"), a company organized and
existing under the laws of BVI.
Each of Blue Quartz, CTN, Consolid, Suntek Global and Super Travel is
herein referred to as a "Party" and together as the "Parties."
WHEREAS, pursuant to a share sale and purchase agreement dated
__________________ 2001 entered into between China International Travel Service
Head Office ("CITSHO"), CTN Holdings Limited ("CTN Holdings"), Super Travel,
Guangdong Hua Da Kang Investment Co., Ltd.("Hua Da Kang"), Guangdong Suntek
Information Industrial Co., Ltd. ("Suntek"), Guangzhou Xinrong Information
Industrial Co., Ltd. ("Xinrong"), Beijing Planet Network Travel Information
Technology Limited and CTN ("Sale and Purchase Agreement"), inter alia, CTN
Holdings has agreed to sell, and Super Travel has agreed to purchase, 22,500
shares of US$1 each in the capital of Blue Quartz, representing 45% of the
existing issued share capital of Blue Quartz as at the date of the Sale and
Purchase Agreement upon the terms and conditions set out therein; and
WHEREAS, pursuant to an equity transfer contract dated
_________________ 2001 entered into between Hua Da Kang, Xinrong, CITSHO,
Shenzhen Freenet Information Company, Limited, WANG Leilei (Shenzhen Freenet
Information Company, Limited and
37
<PAGE>
WANG Leilei are collectively referred to as the "Transferees") and CTN ("Equity
Transfer Contract"), inter alia, Hua Da Kang, Xinrong and CITSHO have agreed to
transfer, and the Transferees have agreed to be transferred, 100% equity
interest in the registered capital of CTN upon the terms and conditions set out
therein.
WHEREAS, pursuant to the Sale and Purchase Agreement, the parties
thereto desire that Consolid and Suntek Global to be bound by the
non-competition and confidentiality restrictions set forth in this Deed.
NOW, THEREFORE, the Parties agree as follows:
E. Definitions. The following capitalized terms shall have the following
meanings for the purposes of this Deed:
"Affiliate" means, with respect to any Person, any other Person that
directly or indirectly owns a Controlling interest in, or exercises Control
over, such Person, or in or over which such Person directly or indirectly owns a
Controlling interest or exercises Control, or that is otherwise directly or
indirectly under common ownership or Control with such Person.
"Beijing Planet Travel" means Beijing Planet Network Travel
Information Technology Limited, a wholly foreign owned limited liability company
established in Beijing, the PRC.
"Control" means having the power to direct or appoint the management
of a company and "Controlled" or "Controlling" have correlative meanings.
"Person" means an individual, corporation, joint venture, partnership,
enterprise, trust, unincorporated association, limited liability company,
government or any department or agency thereof, or any other entity.
"Subsidiary" means any joint venture, corporation, partnership or
other entity in which a Person directly or indirectly holds a Controlling
interest in the form of registered capital, shares, membership, partnership
interests or otherwise.
38
<PAGE>
F. Non-Competition.
1. Non-Competition.
---------------
Each of Consolid and Suntek Global agrees and covenants that for a
period of ten years following the date of this Deed, it shall not, and shall
cause its Subsidiaries and Affiliates not to, directly or indirectly through its
nominees, Affiliates, any other Persons or investments, in any form or manner,
engage in online and/or offline travel services or any business related and/or
incidental thereto including the provision of travel information and content
("Travel Business") and any other activities that is similar to, or competes
with or likely to compete with the Travel Business, whether for its own account
or for the account of any other Person.
2. Rights and Remedies Upon Breach.
-------------------------------
If Consolid or Suntek Global breaches, or any of Blue Quartz, CTN or
Super Travel reasonably believes, acting in good faith, that Consolid or Suntek
Global threatens to commit a breach of, any of the provisions of this Section 2,
Blue Quartz, CTN and Super Travel, in addition to, and not in lieu of, any other
rights and remedies available to Blue Quartz, CTN or Super Travel under law or
in equity, shall have the right and remedy to have this Section 2 specifically
enforced by any court or arbitration tribunal of competent jurisdiction. The
Parties each agree that any breach or threatened breach of this Section 2 would
cause irreparable injury to Blue Quartz, CTN and Super Travel and their
businesses and that money damages would not provide an adequate remedy to Blue
Quartz, CTN and Super Travel.
3. Severability of Covenants.
-------------------------
Each of Consolid and Suntek Global acknowledges and agrees that this
Section 2 is reasonable and valid in scope and in all other respects. If any
court or arbitration tribunal determines that this Section 2, or any part
thereof, is invalid or unenforceable, the remainder of this Section 2 shall not
thereby be affected and shall be given full effect without regard to the invalid
portions.
39
<PAGE>
4. Blue-Pencilling.
---------------
If any court or arbitration tribunal determines that this Section 2,
or any part thereof, is unenforceable because of the duration or geographic
scope of such provision, such court shall have the power to reduce the duration
or scope of such provision, as the case may be, and, in its reduced form, such
provision shall then be enforceable.
G. Confidentiality.
---------------
1. Each of Consolid and Suntek Global undertakes that it shall not
reveal, and shall cause its shareholders, directors, senior executives,
employees and agents not to reveal, to any third party any confidential or
proprietary information concerning the organization, business, technology,
finance, transactions or affairs of Blue Quartz and/or CTN or any of its
Subsidiaries, or any other Party hereto (collectively, the "Confidential
Information") without the prior written consent of the other Parties or except
as herein provided.
2. The Confidential Information obtained by Consolid or Suntek
Global that is restricted hereunder may be disclosed by that Party only to its
designated employees whose duties require such disclosure for the implementation
of this Deed. In that event, the receiving Party shall take all reasonable
precautions, including the conclusion of confidentiality contracts with each
such employee or the inclusion of confidentiality clauses in the individual
labor contract with each such employee, to prevent such employees from using the
Confidential Information for their personal benefit and to prevent any
unauthorized disclosure of such Confidential Information to any third party.
3. Each of Consolid and Suntek Global shall take all necessary
security measures and precautions to protect the confidentiality of the
Confidential Information. Such security measures and precautions shall be
commensurate with the measures and precautions that such Party respectively
takes for the protection of corresponding sensitive information of its own,
which shall in any event be at least of the standard that would be applied by a
reasonable business for the protection of its own highly confidential
information and trade secrets.
4. Notwithstanding the foregoing, Consolid and Suntek Global may
reveal the Confidential Information to outside and internal lawyers, accountants
and consultants to the extent necessary for them to provide their professional
assistance, provided that the
40
<PAGE>
Confidential Information so revealed in written form is marked confidential and
that such government personnel and outside individuals shall be requested to
undertake to respect the confidentiality provisions of this Deed. Consolid and
Suntek Global may also disclose the Confidential Information if disclosure is
required by applicable law, regulation or legal process or by judicial order.
5. Nothing in this Section 3 shall prevent Consolid or Suntek Global
from using or disclosing any Confidential Information which (a) is already known
by such Party at the time it is disclosed to it; (b) has been rightfully
received by such Party from a third party without a breach of an obligation of
confidentiality; (c) is in the public domain through no wrongful act of such
Party; or (d) is independently developed by such Party without use, directly or
indirectly, of the Confidential Information.
H. Other Provisions.
1. Notices.
Notices or other communications required to be given by a Party
pursuant to this Deed shall be written in English and Chinese and delivered in
person or sent in letter form or by facsimile to the address of the other
Parties set forth below or to such other address as may from time to time be
designated by the other Parties through notification to such Party.
(a) If to Blue Quartz, to:
Blue Quartz Limited
48th Floor
The Center
99 Queen's Road Central
Hong Kong
Attention: Company Secretary
Facsimile No.: (852) 2189 7446
(b) If to CTN, to
China Travel Network Company, Limited
Rooms 1-6, 9th Floor
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Tower W3, Oriental Plaza
No. 1 Dong Chang An Avenue
Dong Cheng District
Beijing
the PRC
Attention: Mr. Zhou Ziyong
Facsimile No.:
(c) If to Consolid, to:
W.T. Consolid Investment Holdings Limited
c/o 18th Floor, Sang Woo Building
227-228 Gloucester Road
Causeway Bay
Hong Kong
Attention: Mr. CHEN Guoping
Facsimile No.: (852) 2977 5183
(d) If to Suntek Global, to:
Suntek Global Information Resources Limited
c/o 18th Floor, Sang Woo Building
227-228 Gloucester Road
Causeway Bay
Hong Kong
Attention: Mr. CHEN Guoping
Facsimile No.: (852) 2977 5183
(e) If to Super Travel, to
Super Travel Limited
48th Floor
The Center
99 Queen's Road Central Road
Hong Kong
Attention: Company Secretary
Facsimile No.: (852) 2189 7446
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The dates on which notices shall be deemed to have been effectively given shall
be determined as follows:
(a) notices given by personal delivery shall be deemed
effectively given on the date of personal delivery;
(b) notices given in letter form shall be deemed effectively
given on the sixth day after the date mailed (as indicated by the postmark) by
registered airmail, postage prepaid; and
(c) notices given by facsimile shall be deemed effectively given
on the first business day following the date of transmission, as indicated on
the transmission confirmation slip of the document in question.
2. Consent to Jurisdiction.
Each Party irrevocably consents to the service of process, notices or
other paper in connection with or in any way arising from any litigation,
arbitration or enforcement of any award pursuant to any litigation or
arbitration with respect to an dispute, controversy or claim arising out of, or
relating to, this Deed or the performance, interpretation, breach, termination
or validity hereof, by service on Blue Quartz, at its Hong Kong address
stipulated in Section 4.1. Nothing contained herein shall affect the right of
any Party to serve such processes, notices or other papers in any other manner
permitted by applicable law.
3. Governing Law.
This Deed is governed by and shall be construed in all respects in
accordance with the laws of Hong Kong and the Parties hereby submit to the
exclusive jurisdiction of the courts of Hong Kong in connection herewith.
4. Entire Agreement; Amendments and Waivers.
This instrument is the entire agreement of the Parties with respect to
the subject matter hereof and may not be amended, supplemented, canceled or
discharged except by written instrument executed by both Parties. The Parties do
not intend to confer any benefit hereunder on any third person, and, without
limiting the generality of the foregoing, the Parties may, in writing, without
notice to or consent of any third person, at any time
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waive any rights hereunder or amend this Deed in any respect or terminate this
Deed. If any Party should waive any breach of any provision of this Deed, such
Party will not thereby be deemed to have waived any preceding or succeeding
breach of the same provision or any breach of any other provision of this Deed.
5. Validity.
The invalidity or unenforceability of any provision or provisions of
this Deed shall not affect the validity or enforceability of any other provision
of this Deed, which shall remain in full force and effect.
6. Assignment.
This Deed, and any rights and obligations hereunder, may not be
assigned by any Party without the prior written consent of the other Parties.
7. Headings.
Section headings are inserted herein for convenience only and do not
constitute a part, and shall not affect the interpretation, of this Deed.
8. Counterparts.
This Deed is executed by each Party in one or more counterparts, each
of which shall be deemed an original and all of the counterparts together shall
constitute one and the same instrument. One counterpart shall be retained by
each Party.
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IN WITNESS WHEREOF, and intending to be legally bound hereby, the
Parties have each executed and delivered this Deed on the date first above
written.
SIGNED by )
For and on behalf of )
BLUE QUARTZ LIMITED )
in the presence of :- )
)
SIGNED by )
For and on behalf of )
CHINA TRAVEL NETWORK )
COMPANY, LIMITED )
in the presence of :- )
)
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SEALED with the COMMON SEAL of )
W.T. CONSOLID INVESTMENT )
HOLDINGS LIMITED )
and signed by )
)
in the presence of :- )
46
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SEALED with the COMMON SEAL of )
SUNTEK GLOBAL INFORMATION )
RESOURCES LIMITED )
and signed by )
)
in the presence of :- )
SIGNED by )
For and on behalf of )
SUPER TRAVEL LIMITED )
in the presence of :- )
47