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	Baidu, Inc.
	By:	/s/ Robin Yanhong Li
		Name:	Robin Yanhong Li
		Title:	Director

 

 

 

 

SHARE PURCHASE AGREEMENT

BY AND BETWEEN

BAIDU HOLDINGS LIMITED

and

MOMENTUM STRATEGIC HOLDINGS, L.P.

Dated as of  June 29, 2016

 

TABLE OF CONTENTS

Page

ARTICLE I Definitions		1
Section 1.1	Certain Definitions	1
Section 1.2	Interpretation and Rules of Construction	5
ARTICLE II Sale and Purchase of Shares		6
Section 2.1	Sale and Purchase of Shares	6
Section 2.2	Closing Date	6
Section 2.3	Closing Deliveries by the Selling Shareholder	6
Section 2.4	Closing Deliveries by the Purchaser	7
ARTICLE III Representations and Warranties of the Selling Shareholder		7
Section 3.1	Organization and Good Standing	7
Section 3.2	Title to the Subject Shares	7
Section 3.3	Authorization	7
Section 3.4	Conflicts; Consents of Third Parties	8
Section 3.5	No Litigation	8
Section 3.6	Brokers	8
Section 3.7	Exempt Offering	8
Section 3.8	Purchase for Own Account; Economic Risk	9
Section 3.9	Private Placement; Non-U.S. Person	9
ARTICLE IV Representations and Warranties of the Purchaser		9
Section 4.1	Organization and Good Standing	9
Section 4.2	Title to the Exchange Shares	9
Section 4.3	Authorization	10
Section 4.4	Conflicts; Consents of Third Parties	10
Section 4.5	No Litigation	10
Section 4.6	Brokers	10
Section 4.7	Exempt Offering	10
Section 4.8	Purchase for Own Account; Economic Risk	10
Section 4.9	Private Placement; Non-U.S. Person	11
ARTICLE V Condition to the Closing		11
Section 5.1	Conditions to Obligations of All Parties	11
Section 5.2	Conditions to Obligations of the Purchaser	11
Section 5.3	Conditions to Obligations of the Selling Shareholder	12
ARTICLE VI Covenants and Additional Agreements		12
Section 6.1	Further Assurances	12
Section 6.2	Confidentiality and Publicity	12
Section 6.3	Tax Filing	13
ARTICLE VII Indemnification		14
Section 7.1	Survival of Representations, Warranties and Covenants	14
Section 7.2	Indemnification	14
Section 7.3	Certain Limitations	16
Section 7.4	Tax Treatment of Indemnification Payments	16
Section 7.5	Indemnification Sole and Exclusive Remedy	16

ARTICLE VIII Miscellaneous		17
Section 8.1	Expenses	17
Section 8.2	Governing Law	17
Section 8.3	Arbitration	17
Section 8.4	Entire Agreement; Amendments and Waivers	18
Section 8.5	Specific Performance	18
Section 8.6	Notices	18
Section 8.7	Severability	19
Section 8.8	Binding Effect; Assignment	19
Section 8.9	Counterparts	19
Section 8.10	Termination.	19

 

 

 

 

SHARE PURCHASE AGREEMENT

This SHARE PURCHASE AGREEMENT (this “Agreement”), dated as of June 29, 2016, is entered into by and among (i) Baidu Holdings Limited, a British Virgin Islands company (the “Selling Shareholder”) and (ii) Momentum Strategic Holdings, L.P., a limited partnership formed under the laws of the Cayman Islands (the “Purchaser”).  The Selling Shareholder and the Purchaser are referred to in this Agreement collectively as the “Parties” and individually as a “Party.”

W I T N E S S E T H:

WHEREAS, the Company (as defined below), together with the other Group Companies (as defined below), is a mobile and online travel platform operator;

WHEREAS, the Selling Shareholder directly owns 6,500,000 Class A Shares (as defined below);

WHEREAS, the Purchaser owns (or will own prior to the Closing (as defined below)) 392,708 Ctrip Ordinary Shares (as defined below);

WHEREAS, the Exchange Shares (as defined below) are restricted securities which have not been registered under the Securities Act (as defined below) and will not be able to be sold unless registered under the Securities Act or sold pursuant to an exemption from registration;

WHEREAS, the Selling Shareholder desires to sell to the Purchaser, on the terms and subject to the conditions set forth herein, the Subject Shares (as defined below) owned by the Selling Shareholder and associated rights embodied therein, in exchange for the Exchange Shares and associated rights embodied therein; and

WHEREAS, the Purchaser desires to transfer to the Selling Shareholder, on the terms and subject to the conditions set forth herein, the Exchange Shares and associated rights embodied therein as consideration for the purchase of the Subject Shares owned by the Selling Shareholder and associated rights embodied therein.

NOW, THEREFORE, in consideration of the promises and the mutual covenants and agreements hereinafter contained, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, and intending to be legally bound, the Parties hereby agree as follows:

ARTICLE I

 

“Affiliate” means any other Person that, directly or indirectly through one or more intermediaries, Controls, or is Controlled by, or is under common Control with, such Person, including, without limitation, with respect to any Person that is an individual, his or her Immediate Family Members.

“Agreement” has the meaning ascribed to it in the Preamble.

“Business Day” means a day that is not a Saturday or Sunday or any other day on which banks in the PRC, Hong Kong, the Cayman Islands or the British Virgin Islands are required or authorized to be closed.

“Class A Shares” means the Class A ordinary shares, par value $0.001 per share in the capital of the Company.

“Closing” has the meaning ascribed to it in Section 2.2.

“Closing Date” has the meaning ascribed to it in Section 2.2.

“Company” means Qunar Cayman Islands Limited, an exempted company incorporated with limited liability under the Laws of the Cayman Islands.

“Contract” means any contract, agreement, indenture, note, bond, mortgage, loan, instrument, lease, franchise or license (whether written or oral).

“Control” of a given Person means the power or authority, whether exercised or not, to direct the business, management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise, which power or authority shall conclusively be presumed to exist upon possession of beneficial ownership or power to direct the vote of more than fifty percent (50%) of the votes entitled to be cast at a meeting of the members or shareholders of such Person or power to control the composition of a majority of the board of directors (or similar governing body) of such Person; the term “Controlled” has the meaning correlative to the foregoing.

“Ctrip” means Ctrip.com International, Ltd., an exempted company incorporated with limited liability under the Laws of the Cayman Islands.

“Ctrip Ordinary Shares” means fully-paid ordinary shares of Ctrip, par value $0.01 per share.

“Dispute” has the meaning ascribed to it in Section 8.3.

“Exchange Act” means the U.S. Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.

“Exchange Shares” has the meaning ascribed to it in Section 2.1.

 

“Governmental Authority” means any federal, national, supranational, state, provincial, local or other government, governmental, regulatory or administrative authority, agency or commission or any court, tribunal, or judicial or arbitral body.

“Group Companies” means the Company and any and all corporations, partnerships, limited liability companies, joint ventures, associations and other entities controlled by the Company directly or indirectly through one or more intermediaries, including any variable interest entity controlled by and consolidated with the Company

“HKIAC Rules” has the meaning ascribed to it in Section 8.3.

“HKIAC” has the meaning ascribed to it in Section 8.3.

“Hong Kong” means the Hong Kong Special Administrative Region of the PRC.

“Immediate Family Members” means, with respect to any natural Person, (a) such Person’s spouse, parents, parents-in-law, grandparents, children, grandchildren, siblings and siblings-in-law (in each case whether adoptive or biological), (b) spouses of such Person’s children, grandchildren and siblings (in each case whether adoptive or biological) and (c) estates, trusts, partnerships and other Persons which directly or indirectly through one or more intermediaries are Controlled by the foregoing.

“Indemnified Party” has the meaning ascribed to it in Section 7.2(c).

“Indemnifying Party” has the meaning ascribed to it in Section 7.2(c).

“knowledge” means with respect to the Selling Shareholder, the knowledge actually possessed and, with respect to the Purchaser, the knowledge actually possessed.

“Law” means any foreign, federal, state, municipal or local law, statute, code, ordinance, rule, decree, regulation or any common law of any Government Authority or jurisdiction.

“Legal Proceeding” means any judicial, administrative or arbitral actions, suits, proceedings or investigations (whether civil or criminal, judicial or administrative, at law or in equity, or public or private) by or before a Government Authority.

“Liability” means any liability, cost, expense (including reasonable attorneys’ fees), debt or obligation of any kind, character or description, and whether known or unknown, accrued, absolute, determined, determinable, contingent or otherwise, and regardless of when asserted or by whom.

“Lien” means any pledge, lien, charge, right of first refusal or other option to purchase or otherwise acquire any interest, easement, security interest or other encumbrance.

“Losses” has the meaning ascribed to it in Section 7.2(a).

 

“Order” means any written order, injunction, judgment, decree, notice, ruling, writ, assessment or arbitration award of a Government Authority.

“Organizational Documents” means, with respect to an entity, its certificate of incorporation, articles of incorporation, by-laws, articles of association, memorandum of association, certificate of trust, trust agreement, partnership agreement, limited partnership agreement, certificate of formation, limited liability company agreement or operating agreement, as applicable.

“Party” shall have the meaning ascribed to this term in the preamble to this Agreement.

“Permit” means any approval, authorization, consent, license, permit or certificate of or issued by a Government Authority.

“Person” means any individual, corporation, partnership, limited liability company, firm, joint venture, association, joint-stock company, trust, unincorporated organization, Government Authority or other entity.

“PRC” or “China” means the People’s Republic of China, excluding, for purposes of this Agreement, Hong Kong, the Macau Special Administrative Region of the PRC and Taiwan.

“Purchaser Indemnitee” has the meaning ascribed to it in Section 7.2(a).

“SEC” means the United States Securities and Exchange Commission.

“Securities Act” shall have the meaning ascribed to this term in Section 3.8.

“Selling Shareholder Indemnitees” has the meaning ascribed to it in Section 7.2(b).

“Selling Shareholder” has the meaning ascribed to it in the Preamble.

“Standstill Agreement” means the standstill agreement, dated as of October 26, 2015, by and between Ctrip and Baidu, Inc.

“Subject Shares” has the meaning ascribed to it in Section 2.1.

“Tax” or “Taxes” means (a) any federal, national, provincial, municipal, local or taxes, duties, imposts, levies, or other like assessments in the nature of a tax, in each case, imposed by any Governmental Authority, including all net income (including enterprise income tax and individual income withholding tax), turnover (including value-added tax, business tax, and consumption tax), resource (including urban and township land use tax), special purpose (including land value-added tax, urban maintenance and construction tax, and additional education fees), property (including urban real estate tax and land use fees), documentation (including stamp duty and deed tax), filing, recording, tariffs (including import duty and import value-added tax), and other taxes, and (b) all interest, penalties (administrative, civil or criminal),

or additional amounts imposed by any Governmental Authority in connection with any item described in clause (a) above.

“Taxing Authority” means any Government Authority responsible for the administration of any Tax.

“Third Party Claim” has the meaning ascribed to it in Section 7.2(c)(ii).

“Transaction Documents” means this Agreement and any other agreements or documents required to be executed and/or delivered by any Party substantially concurrently with or in connection with the execution of this Agreement or the consummation of the transactions contemplated by this Agreement.

“Transfer” means, (i) when used as a verb, to sell, assign, dispose of, transfer, exchange, pledge, encumber, hypothecate or otherwise transfer securities, assets or other property or any participation or interest therein, whether directly or indirectly (including pursuant to a derivative transaction, merger, recapitalization, scheme of arrangement, amalgamation or other transaction or by operation of law), or agree or commit to do any of the foregoing and (ii) when used as a noun, a direct or indirect sale, assignment, disposition, exchange, pledge, encumbrance, hypothecation, or other transfer of such securities, assets or other property or any participation or interest therein or any agreement or commitment to do any of the foregoing.

“U.S.” means the United States of America.

 

be construed to limit any general statement that it follows to the specific or similar items or matters immediately following it;

ARTICLE II

Sale and Purchase of Shares

 

 

 

ARTICLE III

Representations and Warranties of the Selling Shareholder

The Selling Shareholder hereby represents and warrants to the Purchaser as of the date hereof and as of the Closing Date, except if a representation or warranty is made as of a specified date, as of such date, each of the representations and warranties contained in this Article III.

 

to perform its obligations hereunder and thereunder.  The execution, delivery and performance of this Agreement and the Transaction Documents by such the Selling Shareholder have been duly authorized by all necessary corporate action on the part of the Selling Shareholder.  This Agreement has been, and the Transaction Documents to which the Selling Shareholder is a party have been or prior to the Closing will be, duly executed and delivered by such the Selling Shareholder, and, when executed and delivered by the Selling Shareholder, assuming due authorization, execution and delivery by the Purchaser, constitutes legal, valid and binding obligations of the Selling Shareholder, enforceable against the Selling Shareholder in accordance with its terms, except as enforcement may be limited by general principles of equity, whether applied in a court of Law or a court of equity, and by applicable bankruptcy, insolvency and similar Law affecting creditors’ rights and remedies generally.

 

ARTICLE IV

Representations and Warranties of the Purchaser

The Purchaser represents and warrants to the Selling Shareholder, as of the date hereof and as of the Closing Date, except if a representation or warranty is made as of a specified date, as of such date, each of the representations and warranties contained in this Article IV.

 

 

distribution thereof in violation of the Securities Act.  The Purchaser acknowledges that it (a) can bear the economic risk of its investment in the Subject Shares, (b) has such knowledge and experience in financial or business matters that it is capable of evaluating the merits and risks of the investment in the Subject Shares and (c) has independently and without reliance upon the Selling Shareholder, and based on such information as it has deemed appropriate, made its own analysis and decision to enter into this Agreement and complete the transactions contemplated hereunder, except that it has relied upon the Selling Shareholder’ express representations, warranties, covenants and agreements in this Agreement.

ARTICLE V

Condition to the Closing

 

agreements, covenants, conditions and obligations contained in this Agreement that are required to be performed or complied with on or before the Closing Date.

ARTICLE VI

Covenants and Additional Agreements

 

event that such protective order or other remedy is not obtained, or the relevant Party waive compliance with this Section 6.2(a), furnish only that portion of such confidential information which is legally required to be provided and exercise its reasonable endeavors to obtain assurances that confidential treatment will be accorded such information; provided, however, that this Section 6.2(a) shall not apply to any information that, at the time of disclosure, is in the public domain and was not disclosed in breach of this Agreement by such Party or any of its agents, representatives, Affiliates, employees, officers or directors.

 

ARTICLE VII

Indemnification

 

 

 

cooperate with the Indemnifying Party in such defense and make available to the Indemnifying Party, at the Indemnifying Party’s expense, all witnesses, pertinent records, materials and information in the Indemnified Party’s possession or under the Indemnified Party’s control relating thereto as is reasonably required by the Indemnifying Party.  Similarly, in the event the Indemnified Party is, directly or indirectly, conducting the defense against any such Third Party Claim, the Indemnifying Party shall cooperate with the Indemnified Party in such defense and make available to the Indemnified Party, at the Indemnifying Party’s expense, all such witnesses, records, materials and information in the Indemnifying Party’s possession or under the Indemnifying Party’s control relating thereto as is reasonably required by the Indemnified Party.  No such Third Party Claim may be settled by the Indemnifying Party without the prior written consent of the Indemnified Party.

 

related to or arising from any breach of any representation, warranty, covenant or agreement contained in, or otherwise pursuant to, this Agreement, except in each case pursuant to Section 8.5 or in the case of fraud or willful misconduct.

 

Momentum Strategic Holdings, L.P.

Walkers Corporate Limited

Cayman Corporate Centre

27 Hospital Road, George Town

Grand Cayman KY1-9008

Email:  cwong@dmsoffshore.com

No. 10 Shangdi 10th Street

Haidian District, Beijing

People’s Republic of China

Attention:  Tony Yip, Vice President

Facsimile:  +(8610) 5992 0061

 

the failure of any of the conditions specified in Article V and such breach, inaccuracy or failure cannot be cured by the Purchaser within thirty (30) days.

** REMAINDER OF PAGE INTENTIONALLY LEFT BLANK **

 

 

 

 

IN WITNESS WHEREOF, the Parties have caused this Agreement to be duly executed as of the date first written above.

	MOMENTUM STRATEGIC HOLDINGS, L.P.
	By:	/s/ Amber Ramsey
		Name:	Amber Ramsey
		Title:	Director of Momentum Strategic GP, Ltd.
			as General Partner of Momentum Strategic Holdings, L.P.

 

 

 

[Signature Page to SPA]

IN WITNESS WHEREOF, the Parties have caused this Agreement to be duly executed as of the date first written above.

 

 

 

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EXHIBIT 3

SUBSCRIPTION AGREEMENT

This Subscription Agreement (this “Agreement”) is made as of September  7, 2016 by and between:

(1)

Ctrip.com International, Ltd., a company incorporated in the Cayman Islands (the “Company”); and

 

(2)

Baidu Holdings Limited (the “Purchaser”),  a company incorporated in the Cayman Islands. The Purchaser and the Company are sometimes each referred to herein as a “Party,” and collectively as the “Parties.”

W I T N E S S E T H:

WHEREAS, the Company has filed a registration statement on Form F-3 (File No. 333-208399, the “Registration Statement”) with the United States Securities and Exchange Commission (the “SEC”), including a related prospectus dated December 9, 2015, allowing for delayed offerings pursuant to Rule 415 of the General Rules and Regulations under the  U.S. Securities Act of 1933, as amended  (the “Securities Act”) by the Company of American Depositary Shares (“ADS”) representing ordinary shares of the Company (“Ordinary Shares”) and the Company proposes to offer certain amount of ADSs as specified in the preliminary prospectus supplement, dated September 6, 2016 (such offering, the “Offering”).

WHEREAS,  the Purchaser wishes to invest in the Company by acquiring Ordinary Shares in the Company in a private transaction with the Company exempt from registration pursuant to Regulation S of the Securities Act (the “Regulation S”);

NOW, THEREFORE, in consideration of the foregoing recitals and the mutual promises hereinafter set forth, the Parties hereto agree as follows:

THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 (AS AMENDED, THE “ACT”) OR UNDER THE SECURITIES LAWS OF ANY STATE. THIS SECURITY MAY NOT BE TRANSFERRED, SOLD, OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF (1) AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT OR (2) AN EXEMPTION OR QUALIFICATION UNDER APPLICABLE SECURITIES LAWS. ANY ATTEMPT TO TRANSFER, SELL, PLEDGE OR HYPOTHECATE THIS SECURITY IN VIOLATION OF THESE RESTRICTIONS SHALL BE VOID.

 

 

imposes any damages or penalties in connection with the transactions contemplated by this Agreement with respect to the Company.

 

 

 

threatened against the Purchaser that questions the validity of this Agreement or the right of the Purchaser to enter into this Agreement or to consummate the transactions contemplated hereby.

 

ARTICLE III

COVENANTS

ARTICLE IV

INDEMNIFICATION

 

 

ARTICLE V

MISCELLANEOUS

The language to be used in the arbitration proceedings shall be English. Each of the Parties irrevocably waives any immunity to jurisdiction to which it may be entitled or become entitled (including without limitation sovereign immunity, immunity to pre-award attachment, immunity to post-award attachment or otherwise) in any arbitration proceedings and/or enforcement proceedings against it arising out of or based on this Agreement or the transactions contemplated hereby.

If to the Purchaser, at:

No. 10 Shangdi 10th Street Haidian District, Beijing

 

People’s Republic of China Attention:  Tony Yip, Vice President Facsimile:  +86 10 5992 0061

If to the Company, at:

Ctrip.com International, Ltd. 99 Fu Quan Road Shanghai 200335 People’s Republic of China Tel: +86 21 3406-4880 Fax: +86 21 5251-0000 Attention: Chief Financial Officer

With copy to (which shall not be constitute a notice):

Skadden, Arps, Slate, Meagher & Flom 42/F, Edinburgh Tower, The Landmark 15 Queen’s Road Central Hong Kong Attention:  Z. Julie Gao, Esq./Haiping Li, Esq. Facsimile:  +852 3740 4727/+852 3910 4835

Any Party may change its address for purposes of this Section 5.6 by giving the other Parties hereto written notice of the new address in the manner set forth above.

 

regulatory organization) to disclose any such non-public information, it shall, to the extent legally permissible, notify the other Party as promptly as practicable under the circumstances so that the other Party may seek a protective order or other appropriate remedy. In the event that no such protective order or other remedy is obtained, the disclosing Party shall furnish only that portion of the non-public information that is legally required.

 

which shall be deemed to be an original, but all of which together shall constitute but one and the same instrument.

[SIGNATURE PAGE FOLLOWS]

 

 

 

 

 

 

IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed as of the day and year first above written.

	Ctrip.com International, Ltd.
	By:	/s/ Xianfan Wang
	Name:	Xianfan Wang
	Title:	Chief Financial Officer

 

 

 

 

[Signature Page to Subscription Agreement]

IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed as of the day and year first above written.