SHARE PURCHASE AGREEMENT
Exhibit 2
EXECUTION COPY
Confidential
Confidential
SHARE PURCHASE AGREEMENT (this “Agreement”) dated as of May 16, 2011 between eLong, Inc., an
exempted limited liability company under the laws of the Cayman Islands (the “Company”) and TCH
Sapphire Limited, a British Virgin Islands company limited by shares (the “Purchaser”).
W I T N E S S E T H:
WHEREAS, on the terms and subject to the conditions set forth herein, the Company desires to
issue and sell to the Purchaser, and the Purchaser desires to purchase from the Company 6,031,500
newly issued Ordinary Shares (as defined below) and 5,038,500 High-Vote Ordinary Shares (as
defined below) (together, the “Shares”).
NOW, THEREFORE, in consideration of the mutual promises and covenants contained herein and
other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
ARTICLE 1
Definitions
Definitions
Section 1.01. Definitions. As used in this Agreement, the following terms shall have the
following meanings:
“Affiliate” means, with respect to any Person, any other Person directly or indirectly
controlling, controlled by, or under common control with such Person; provided that the Company and
its Subsidiaries shall be deemed not to be Affiliates of the Purchaser.
“Business Day” means a day other than Saturday, Sunday or any other day on which commercial
banks in mainland China, Hong Kong or Seattle are authorized or required by applicable law to
close.
“Closing” has the meaning set forth in Section 2.02(a).
“Closing Date” has the meaning set forth in Section 2.02(a).
“Company Material Adverse Effect” means an event, circumstance or effect that has a material
adverse effect on the business, assets, properties, results of operations or condition (financial
or otherwise) of the Company and its Subsidiaries, taken as a whole; provided that the following
(or the effects thereof or resulting therefrom) shall be excluded (A) changes in generally accepted
accounting principles in the United States or changes in the regulatory accounting requirements
applicable to any industry in which the Company and its Subsidiaries operate, (B) changes in the
financial or securities markets or general economic or political conditions in the United States or
the People’s Republic of China, (C) changes (including changes of applicable law) or conditions
generally affecting the industry in which the Company and its Subsidiaries operate and not
specifically relating to or having a materially disproportionate effect on the Company and its
Subsidiaries, taken as a whole, (D) acts of war, sabotage or terrorism or natural disasters
involving the United States of America or the People’s Republic of China, (E) the announcement or
consummation of the transactions contemplated by this Agreement, (F) any failure by the
Company and its Subsidiaries to meet any internal or published budgets, projections, forecasts or
predictions of financial performance for any period and any changes in the trading price or trading
volume of Shares (provided that the underlying causes of such failure or changes shall not be
excluded), or (G) any action taken (or omitted to be taken) at the request of the Purchaser.
“Dispute” has the meaning set forth in Section 5.06(b).
“e-mail” has the meaning set forth in Section 5.01.
“Exchange Act” means the United States Securities Exchange Act of 1934, as amended.
“Expedia” means Expedia Asia Pacific-Alpha Limited, an exempted limited liability company
under the laws of the Cayman Islands.
“Exchange Act Documents” has the meaning set forth in Section 3.01(f).
“Governmental Entity” means any court, administrative agency or commission or other
governmental authority or instrumentality, whether federal, state, local or foreign, and any
applicable industry self-regulatory organization.
“High-Vote Ordinary Shares” has the meaning set forth in Section 3.01(g).
“HKIAC” has the meaning set forth in Section 5.06(b).
“Investor Rights Agreement” means the Investor Rights Agreement dated as of the Closing Date
among the Company, the Purchaser and Expedia in the form attached as Exhibit A hereto.
“Ordinary Shares” means the ordinary shares of the Company that are designated “Ordinary
Shares” with a par value of $0.01 each in the capital of the Company.
“Person” means an individual, corporation, limited liability company, partnership,
association, trust or other entity or organization, including a Government Entity.
“Purchase Price” has the meaning set forth in Section 2.01.
“Purchaser Material Adverse Effect” means an event, circumstance or effect that has a material
adverse effect on the business, assets, properties, results of operations or condition (financial
or otherwise) of Purchaser and its Affiliates, taken as a whole, as applicable; provided that the
following (or the effects thereof or resulting therefrom) shall be excluded (A) changes in
generally accepted accounting principles in the United States or changes in the regulatory
accounting requirements applicable to any industry in which the Purchaser and its Affiliates
operate, (B) changes in the financial or securities markets or general economic or political
conditions in the United States or the People’s Republic of China, (C) changes (including changes
of applicable law) or conditions generally affecting the industry in which the Purchaser and its
Affiliates operate and not specifically relating to or having a materially disproportionate effect
on the Purchaser and its Affiliates, taken as a whole, (D) acts of war, sabotage or terrorism or
natural disasters involving the United
States of America or the People’s Republic of China, (E) the announcement or consummation of
the transactions contemplated by this Agreement, (F) any failure by the Purchaser and its
Affiliates to meet any internal or published budgets, projections, forecasts or predictions of
financial performance for any period and any changes in the trading price or trading volume of
Shares (provided that the underlying causes of such failure or changes shall not be excluded), or
(G) any action taken (or omitted to be taken) at the request of the Company.
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“Regulation S” means Regulation S promulgated under the Securities Act.
“SEC” means the United States Securities and Exchange Commission.
“Securities Act” means the United States Securities Act of 1933, as amended.
“Subsidiary” means, with respect to any Person, any entity of which securities or other
ownership interests having ordinary voting power to elect a majority of the board of directors or
other Persons performing similar functions are at any time directly or indirectly owned by such
Person.
Section 1.02. Other Definitional and Interpretative Provisions. The words “hereof”, “herein”
and “hereunder” and words of like import used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement. The captions herein are included for
convenience of reference only and shall be ignored in the construction or interpretation hereof.
References to Articles, Sections, Exhibits and Schedules are to Articles, Sections, Exhibits and
Schedules of this Agreement unless otherwise specified. Any capitalized terms used in any Exhibit
or Schedule but not otherwise defined therein, shall have the meaning as defined in this Agreement.
Any singular term in this Agreement shall be deemed to include the plural, and any plural term the
singular. Whenever the words “include”, “includes” or “including” are used in this Agreement, they
shall be deemed to be followed by the words “without limitation”, whether or not they are in fact
followed by those words or words of like import. “Writing”, “written” and comparable terms refer
to printing, typing and other means of reproducing words (including electronic media) in a visible
form. References to any agreement or contract are to that agreement or contract as amended,
modified or supplemented from time to time in accordance with the terms hereof and thereof.
References to any law are to that law as amended, modified or supplemented from time to time and
references to any law include all rules and regulations promulgated thereunder. References to any
Person include the successors and permitted assigns of that Person. References from or through any
date mean, unless otherwise specified, from and including or through and including, respectively.
Except as expressly indicated otherwise, all sums of money referred to in this Agreement are
expressed and shall be payable in United States dollars.
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ARTICLE 2
The Stock Purchase
The Stock Purchase
Section 2.01. Agreement to Sell and Purchase.
(a) On the basis of the representations and warranties contained in this Agreement, and
subject to its terms and conditions, the Company hereby agrees to issue
and sell to the Purchaser, and the Purchaser agrees to purchase from the Company, the Shares
for a purchase price (the “Purchase Price”) equal to: (i) the product of 11,070,000 (representing
the aggregate number of Shares being purchased pursuant to this Agreement) and (ii) one-half of the
average closing price of the Company’s American Depositary Shares on the Nasdaq Global Market for
the 20 trading days immediately preceding the date of this Agreement.
(b) The Purchase Price shall be composed of an initial payment and a final payment, as set
forth in Exhibit B hereto. (i) The initial payment shall be US$85,000,000 (eighty-five
million US dollars)(the “Initial Payment”) and shall be paid by Purchaser to the Company at
Closing. (ii) Within 10 Business Days following the date of Closing, the Purchaser shall pay the
Company an amount equal to: the Purchase Price minus the Initial Payment (the “Final Payment”);
provided, however, that, in the event that the Initial Payment exceeds the Purchase Price, within
10 business days following the date of Closing, the Company shall pay the Purchaser an amount equal
to: the Initial Payment minus the Purchase Price.
Section 2.02. Closing.
(a) The closing of the issue and sale to, and purchase by, the Purchaser of the Shares (the
“Closing”) shall occur on the date hereof, or at such other time and place as the Company and the
Purchaser may agree, via electronic exchange of copies of closing deliverables other than the
Initial Payment (which shall be wired at the Closing) as described in Section 2.02(b)
followed by prompt delivery of the originals therefor (the day on which the Closing occurs, the
“Closing Date”).
(b) At the Closing,
(i) the Company shall deliver, or cause to be delivered, to the Purchaser (A) one or
more share certificates evidencing the Shares and a copy of the updated Register of Members
of the Company recording the Purchaser as the registered holder of the Shares certified by
the Company and (B) the Investor Rights Agreement duly executed by the Company and Expedia;
and
(ii) the Purchaser shall deliver to the Company (A) the Initial Payment by wire
transfer of immediately available funds to the account designated by the Company and
communicated in writing to the Purchaser at least three (3) Business Days prior to the
Closing Date and (B) the Investor Rights Agreement, duly executed by the Purchaser.
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ARTICLE 3
Representations and Warranties
Representations and Warranties
Section 3.01. Representations and Warranties of the Company. The Company represents and
warrants to the Purchaser that:
(a) Organization and Qualification. The Company has been duly incorporated, is
validly existing as a company in good standing under the laws of the Cayman Islands, has the
corporate power and authority to own its property and to conduct its business as currently
conducted and is duly qualified to transact business and is in good standing in
each jurisdiction in which the conduct of its business or its ownership or leasing of property
requires such qualification, except to the extent that the failure to be so qualified or be in good
standing would not reasonably be expected to be have a Company Material Adverse Effect. Each
Subsidiary of the Company has been duly incorporated or formed, is validly existing as a company in
good standing under the laws of the jurisdiction in which it was formed, has the corporate power
and authority to own its property and to conduct its business as currently conducted and is duly
qualified to transact business and is in good standing in each jurisdiction in which the conduct of
its business or its ownership or leasing of property requires such qualification, except to the
extent that the failure to be so qualified or be in good standing would not reasonably be expected
to be have a Company Material Adverse Effect.
(b) Authorization; Enforcement; Validity. This Agreement has been duly authorized,
executed and delivered by, and is a valid and binding agreement of, the Company, enforceable in
accordance with its terms, subject to applicable bankruptcy, insolvency or similar laws affecting
creditors’ rights generally and general principles of equity.
(c) No Conflicts. The execution and delivery by the Company of, and the performance by
the Company of its obligations under, this Agreement will not contravene any provision of
applicable law or the memorandum and articles of incorporation of the Company or any agreement or
other instrument binding upon the Company or any of its Subsidiaries that is material to the
Company and its Subsidiaries, taken as a whole, or any judgment, order or decree of any
governmental body, agency or court having jurisdiction over the Company or any Subsidiary, other
than any contravention that would not have, or reasonably be expected to have, a Company Material
Adverse Effect, or a material adverse effect on the ability of the Company to perform its
obligations and consummate the transactions contemplated by this Agreement.
(d) No Consents or Approvals. No consent, approval, authorization or order of, or
filing or qualification with, any governmental body or agency is required for the performance by
the Company of its obligations under this Agreement, other than (i) compliance with any applicable
requirements of any applicable securities laws, and (ii) any consent, approval, actions or filings
the absence of which would not have, or reasonably be expected to have, a Company Material Adverse
Effect, or a material adverse effect on the ability of the Company to perform its obligations and
consummate the transactions contemplated by this Agreement.
(e) Shares Authorized and Fully Paid. The Shares have been duly authorized and, when
issued and delivered to and paid for by the Purchaser in accordance with the terms of this
Agreement, will be validly issued, fully paid and non-assessable, will be sold free and clear of
any pledge, lien, security interest, encumbrance, claim or equitable interest, and the issuance of
such Shares will not be subject to any preemptive or similar rights except for restrictions under
this Agreement and the Investor Rights Agreement.
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(f) Public Filings. The Company has filed with or furnished to, the SEC, as
applicable, all forms, statements, certifications, reports and documents required to be filed or
furnished by it under the Exchange Act during the twelve months preceding the date of this
Agreement (such forms, statements, reports and documents, collectively, the “Exchange Act
Documents”). The Exchange Act Documents complied when filed or furnished in all material respects
with the Exchange Act, and did not, when so filed or
furnished, contain any untrue statement of a material fact or omit to state a material fact
necessary to make the statements therein, in the light of the circumstances under which they were
made, not misleading (provided that the representation and warranty set forth in this sentence
shall not pertain to any statement that has been modified or superseded by a subsequently filed
Exchange Act Document to the extent that such subsequently filed Exchange Act Document shall have
been filed on or prior to the date of this Agreement, in which case, for the avoidance of doubt,
the representation and warranty set forth in this sentence shall apply to such Exchange Act
Document as modified by such subsequently filed Exchange Act Document).
(g) Capitalization. The authorized share capital of the Company consists of
258,205,620 shares, divided into 150,000,000 Ordinary Shares, 50,000,000 ordinary shares of the
Company that are designated “High-Vote Ordinary Shares” with a par value of $0.01 each in the
capital of the Company (“High-Vote Ordinary Shares”) and 58,205,620 preferred shares with a par
value of $0.01 each in the capital of the Company. As of April 30, 2011, there were issued and
outstanding 22,352,152 Ordinary Shares, 28,550,704 High-Vote Ordinary Shares and no preferred
shares of the Company. As of May 15, 2011, (i) a total of 544,035 performance units (the
“Performance Units”), equivalent to an equal number of Ordinary Shares, were unvested and
outstanding; (ii) a total of 5,755,352 share options to purchase Ordinary Shares (the “Share
Options”) were outstanding and unexercised; (iii) a total of 135,536 mirror options, each
equivalent to one Share Option were outstanding and unexercised; and (iv) 121 warrants were
outstanding and unexercised, each equivalent to one Share Option. The Performance Units and the
Share Options were granted to employees, consultants and directors pursuant to the eLong, Inc.
Stock Option Plan, the eLong, Inc. Stock and Annual Incentive Plan and/or the eLong, Inc. Share and
Equity Incentive Plan; the mirror options were granted to Expedia Asia Pacific-Alpha Limited
pursuant to a 2004 option agreement.
(h) No Directed Selling Efforts. Neither the Company nor any of its Affiliates or any
other Person acting on its or their behalf has engaged or will engage in any directed selling
efforts within the meaning of Regulation S under the Securities Act and all such Persons have
complied with the offering requirements of Regulation S under the Securities Act.
(i) Company Material Adverse Effect; Bankruptcy. Since May 18, 2010, no event or
circumstance has occurred that, individually or in the aggregate, has had or would reasonably be
expected to have a Company Material Adverse Effect. Neither the Company nor any of its Subsidiaries
has taken any steps to seek protection pursuant to any bankruptcy law nor does the Company have any
knowledge or reason to believe that its creditors intend to initiate involuntary bankruptcy
proceedings or any fact which would reasonably lead a creditor to do so.
(j) Litigation. There are no claims, suits, investigation, actions or proceedings
pending or, to the Company’s knowledge, threatened against the Company or any of its Subsidiaries
or, to the best of the knowledge of the Company, any of their respective directors, officers or
properties before any court, governmental department, commission, agency, instrumentality or
authority, or any arbitrator that seeks to restrain or enjoin the consummation of the transactions
contemplated by this Agreement or which would reasonably be expected, to have, individually or in
the aggregate, a Company Material Adverse Effect.
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(k) Compliance with Applicable Laws. To the Company’s best knowledge, the Company and
each of its Subsidiaries have conducted their businesses in compliance with all applicable laws,
regulations and applicable stock exchange requirements, except where the failure to be in
compliance would not reasonably be expected to have, individually or in the aggregate, a Company
Material Adverse Effect. The Company and each of its Subsidiaries have all permits, licenses,
authorizations, orders and approvals of, and have made all filings, applications and registrations
with, any Governmental Entities that are required in order to carry on their business as presently
conducted, except where the failure to have such permits, licenses, authorizations, orders and
approvals or the failure to make such filings, applications and registrations, individually or in
the aggregate, would not reasonably be expected to have a Company Material Adverse Effect; and all
such permits, licenses, certificates of authority, orders and approvals are in full force and
effect and, to the knowledge of the Company, no suspension or cancellation of any of them is
threatened, and all such filings, applications and registrations are current, except where such
failure to be in full force and effect, suspension or cancellation, individually or in the
aggregate, would not reasonably be expected to have a Company Material Adverse Effect.
(l) Ownership of Assets. The Company and its Subsidiaries have rights to all
properties and to all assets necessary to conduct the business now operated by them in each case
free from restrictions that would materially affect the value thereof or materially interfere with
the use made or to be made thereof by them and any real property or building held under lease by
the Company or any of its Subsidiaries are held by it under valid, existing and enforceable leases,
in each case, except to the extent where such failure would not reasonably be expected to have a
Company Material Adverse Effect.
(m) Intellectual Property. To the Company’s knowledge, the Company owns or possesses
sufficient legal rights including but not limited to trade secrets, licenses, trade xxxx,
confidential information and proprietary rights, all copyrights and all patents and patent rights,
as are necessary to the conduct of the business as now conducted or presently proposed to be
conducted by the Company and its Subsidiaries, without any known conflict with, or known
infringement of, the rights of others, in each case, except to the extent where such failure would
not reasonably be expected to have a Company Material Adverse Effect.
(n) No Commission. There is no investment banker, broker, finder or other
intermediary that has been retained by or is authorized to act on behalf of the Company or any of
its Subsidiaries who might be entitled to any fee or commission in connection with the transactions
contemplated by this Agreement.
Section 3.02. Representation and Warranties of the Purchaser. The Purchaser represents and
warrants to the Company that:
(a) Organization and Qualification. The Purchaser has been duly incorporated, is
validly existing as a company in good standing under the laws of the Cayman Islands, has the
corporate power and authority to own its property and to conduct its business as currently
conducted and is duly qualified to transact business and is in good standing in each jurisdiction
in which the conduct of its business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so qualified or be in good standing
would not reasonably be expected to be have a Purchaser Material Adverse Effect.
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(b) Authorization; Enforcement; Validity. This Agreement has been duly authorized,
executed and delivered by, and is a valid and binding agreement of the Purchaser, enforceable in
accordance with its terms, subject to applicable bankruptcy, insolvency or similar laws affecting
creditors’ rights generally and general principles of equity.
(c) No Conflicts. The execution and delivery by the Purchaser of, and the performance
by the Purchaser of its obligations under, this Agreement will not contravene any provision of
applicable law, the organizational documents of the Purchaser, other instrument binding upon the
Purchaser or any of its Subsidiaries, or any judgment, order or decree of any governmental body,
agency or court having jurisdiction over the Purchaser or any Subsidiary, other than any
contravention that would not have, or reasonably be expected to have, a Purchaser Material Adverse
Effect, or a material adverse effect on the ability of the Purchaser to perform its obligations and
consummate the transactions contemplated by this Agreement.
(d) No Consents or Approvals. No consent, approval, authorization or order of, or
filing or qualification with, any governmental body or agency is required for the performance by
the Purchaser of its obligations under this Agreement, other than (i) compliance with any
applicable requirements of any applicable securities laws, and (ii) any consent, approval, actions
or filings the absence of which would not have, or reasonably be expected to have, a Purchaser
Material Adverse Effect, or a material adverse effect on the ability of the Purchaser to perform
its obligations and consummate the transactions contemplated by this Agreement.
(e) Investment for Own Account. The Purchaser is acquiring the Shares in the ordinary
course of its business and for its own account for investment only and with no present intention of
distributing any of such Shares or any arrangement or understanding with any other persons
regarding the distribution of such Shares. The Purchaser (i) is able to fend for itself in the
transactions contemplated by this Agreement, (ii) has such knowledge and experience in financial
and business matters as to be capable of evaluating the merits and risks of its prospective
investment in the Shares, and (iii) has the ability to bear the economic risks of its prospective
investment and can afford the complete loss of such investment.
(f) Not U.S. Person. The Purchaser is not a “U.S. Person” within the meaning of
Regulation S and is not acquiring the Shares for the account or benefit of any “U.S. Person”. The
Purchaser is aware and agrees (i) that the sale to it is being made in an “off -shore transaction”
(as defined in Regulation S) in reliance on an exemption from registration under the Securities
Act, (ii) that the Shares are being offered in transactions not involving any public offering
within the meaning of the Securities Act, and (iii) that the Shares have not been and will not be
registered under the Securities Act. The Purchaser is not acquiring the Shares as a result of or
in connection with any activity that would constitute “directed selling efforts” (within the
meaning given to that term in Regulation S) or any general solicitation or advertising in the
United States and agrees to resell the Shares only in accordance with the provisions of Regulation
S or pursuant to an effective registration statement under the Securities Act or an available
exemption therefrom. The authorized representatives of the Purchaser were outside the United
States at the time (i) the purchase and the sale of the Shares was made and (ii) the authorized
representatives of the Purchaser executed the Agreement.
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(g) No Registration. The Purchaser understands that the Shares may not be sold,
transferred or otherwise disposed of without registration under the Securities Act or an exemption
therefrom, and that in the absence of an effective registration statement covering the Shares or an
available exemption from registration under the Securities Act, the Shares must be held
indefinitely. In furtherance and not in limitation of the foregoing, the Purchaser is aware that
the Shares may not be sold pursuant to Rule 144 promulgated under the Securities Act unless all of
the applicable conditions of such rule are met.
(h) No Commission. There is no investment banker, broker, finder or other intermediary
which has been retained by or is authorized to act on behalf of the Purchaser or any of its
Subsidiaries who might be entitled to any fee or commission in connection with the transactions
contemplated by this Agreement.
ARTICLE 4
Covenants
Covenants
Section 4.01. Covenants of the Purchaser. The Purchaser agrees that all certificates or
other instruments representing the Shares will bear a legend substantially to the following effect:
“THE SHARES REPRESENTED BY THIS INSTRUMENT HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED, OR SECURITIES LAWS OF ANY JURISDICTION AND MAY NOT BE TRANSFERRED,
SOLD OR OTHERWISE DISPOSED OF IN THE UNITED STATES EXCEPT PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT OR AN EXEMPTION FROM REGISTRATION UNDER SUCH ACT OR SUCH LAWS. THIS
INSTRUMENT IS ISSUED PURSUANT TO AND SUBJECT TO THE RESTRICTIONS ON TRANSFER AND OTHER
PROVISIONS OF A SHARE PURCHASE AGREEMENT, DATED AS OF MAY 16, 2011, BETWEEN THE ISSUER OF
THESE SECURITIES AND THE PURCHASER REFERRED TO THEREIN AND AN INVESTOR RIGHTS AGREEMENT,
DATED AS OF MAY 16, 2011, AMONG THE ISSUER OF THESE SECURITIES, THE INVESTOR REFERRED TO
THEREIN AND CERTAIN OTHER PARTIES, A COPY OF EACH OF WHICH IS ON FILE WITH THE ISSUER. THE
SHARES REPRESENTED BY THIS INSTRUMENT MAY NOT BE SOLD OR OTHERWISE TRANSFERRED EXCEPT IN
COMPLIANCE WITH SAID AGREEMENTS. ANY SALE OR OTHER TRANSFER NOT IN COMPLIANCE WITH SAID
AGREEMENT WILL BE VOID.”
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Section 4.02. Press Release; Public Announcements. On the date hereof or promptly
thereafter, the Company may issue a press release in a form to be agreed with Purchaser and furnish
a current report on Form 6-K to the SEC which exhibits such press release. The Company shall also
be entitled to file a copy of this Agreement and the Investor Rights Agreement as an exhibit to its
annual report on Form 20-F. The Purchaser shall be entitled to file a copy of this Agreement and
the Investor Rights Agreement as an exhibit to its statement on Schedule 13D filed with the SEC or
any other securities filings
required by any applicable law in Hong Kong or any rule or regulation of the Hong Kong Stock
Exchange with respect to the transactions contemplated hereunder. No other written public release
or announcement concerning the transactions contemplated hereby shall be issued by the Company or
the Purchaser without the prior written consent of the other party, except as such release or
announcement may be required by law or the rules or regulations of any securities exchange, in
which case the Company or the Purchaser, as applicable, shall allow the other party reasonable time
to comment on such release or announcement in advance of such issuance (and make reasonable efforts
to reflect such comments).
Section 4.03. Further Assurances. Each of the Purchaser and the Company shall use
commercially reasonable efforts to take all actions necessary or appropriate to consummate the
transactions contemplated by this Agreement.
ARTICLE 5
Miscellaneous
Miscellaneous
Section 5.01 Notices. All notices, requests and other communications to any party hereunder
shall be in writing (including facsimile transmission and electronic mail (“e-mail”) transmission,
so long as a receipt of such e-mail is requested and received) and shall be given,
if to the Company, to:
eLong, Inc.
Xxxxxx Xxxxx, Xxxxx X, Xxxxx Xxxxx
10 Middle Jiuxianqiao Road, Chaoyang District
Beijing 100015, People’s Republic of China
Attention: Xxxx Xxxxxx, General Counsel
Facsimile No.: x00-00-0000-0000
E-mail: xxxx.xxxxxx@xxxx.xXxxx.xxx
Xxxxxx Xxxxx, Xxxxx X, Xxxxx Xxxxx
10 Middle Jiuxianqiao Road, Chaoyang District
Beijing 100015, People’s Republic of China
Attention: Xxxx Xxxxxx, General Counsel
Facsimile No.: x00-00-0000-0000
E-mail: xxxx.xxxxxx@xxxx.xXxxx.xxx
With a copy (which shall not constitute notice) to:
Xxxxx Xxxx & Xxxxxxxx
The Hong Kong Club Building
0X Xxxxxx Xxxx
Xxxx Xxxx
Attention: Xxxxx X. Xxx
Facsimile No.: x000-0000-0000
E-mail: xxxxx.xxx@xxxxxxxxx.xxx
The Hong Kong Club Building
0X Xxxxxx Xxxx
Xxxx Xxxx
Attention: Xxxxx X. Xxx
Facsimile No.: x000-0000-0000
E-mail: xxxxx.xxx@xxxxxxxxx.xxx
if to the Purchaser, to:
TCH Sapphire Limited
c/o Tencent Holdings Limited
Tencent Building, 38th Floor
Kejizhongyi Avenue, Hi-tech Park
Nanshan District, Shenzhen 5180057, People’s Republic of China
Attention: Xxxxx Xxxxx, General Counsel
c/o Tencent Holdings Limited
Tencent Building, 38th Floor
Kejizhongyi Avenue, Hi-tech Park
Nanshan District, Shenzhen 5180057, People’s Republic of China
Attention: Xxxxx Xxxxx, General Counsel
Xxxxxxx Xxxx, Vice President of Mergers & Acquisitions
Facsimile No.: x00-000-0000-0000
E-mail: xxxxxxxxxx@xxxxxxx.xxx; xxxxxxxxxxx@xxxxxxx.xxx
E-mail: xxxxxxxxxx@xxxxxxx.xxx; xxxxxxxxxxx@xxxxxxx.xxx
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With a copy (which shall not constitute notice) to:
Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, P.C.
000 Xxxx Xxxx Xxxx
Xxxx Xxxx, XX 00000 XXX
Attention: Xxxxx Xxxxxxx, Esq.
Facsimile: x0-000-000-0000
E-mail: xxxxxxxx@xxxx.xxx
000 Xxxx Xxxx Xxxx
Xxxx Xxxx, XX 00000 XXX
Attention: Xxxxx Xxxxxxx, Esq.
Facsimile: x0-000-000-0000
E-mail: xxxxxxxx@xxxx.xxx
or such other address, facsimile number or e-mail address as such party may hereafter specify for
the purpose by notice to the other parties hereto. All such notices, requests and other
communications shall be deemed received on the date of receipt by the recipient thereof if received
prior to 5 p.m. in the place of receipt and such day is a business day in the place of receipt.
Otherwise, any such notice, request or communication shall be deemed not to have been received
until the next succeeding business day in the place of receipt.
Section 5.02. Severability. If any term, provision, covenant or restriction of this
Agreement is held to be invalid, illegal, void or unenforceable, the remainder of the terms,
provisions, covenants and restrictions set forth herein shall remain in full force and effect and
shall in no way be affected, impaired or invalidated thereby, and the parties hereto shall use
their best efforts to find and employ an alternative means to achieve the same or substantially the
same result as that contemplated by such term, provision, covenant or restriction, it being
intended that all of the rights and privileges of the parties shall be enforceable to the fullest
extent permitted by law.
Section 5.03. Modification; Amendment. The provisions of this Agreement, including the
provisions of this sentence, may not be amended, modified or supplemented unless pursuant to an
instrument in writing signed by the party against whom enforcement is sought.
Section 5.04. Entire Agreement. This Agreement and the Investor Rights Agreement are
intended by the parties as a final expression of their agreement and are intended to be a complete
and exclusive statement of the agreement and understanding of the parties hereto with respect to
the subject matter contained herein and therein. Except as provided in this Agreement, there are
no restrictions, promises, warranties or undertakings, other than those set forth or referred to
herein, with respect to such matters. This Agreement supersedes all prior agreements and
undertakings among the parties with respect to such matters. No party hereto shall have any
rights, duties or obligations other than those specifically set forth in this Agreement.
Section 5.05. Counterparts. This Agreement may be signed in any number of counterparts, each
of which shall be an original, with the same effect as if the signatures thereto and hereto were
upon the same instrument. The parties agree that execution of this Agreement by facsimile
transmission or e-mail of signatures in portable document format shall be legally valid and
binding.
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Section 5.06. Governing Law; Arbitration.
(a) This Agreement will be governed by and construed in accordance with the laws of Hong Kong
applicable to contracts made and to be performed within Hong Kong.
(b) Any dispute, controversy or claim arising out of or relating to this Agreement, or the
breach, termination or invalidity thereof (a “Dispute”), shall be settled by arbitration in
accordance with the UNCITRAL Arbitration Rules as at present in force and as may be amended by the
rest of this provision. The appointing authority shall be Hong Kong International Arbitration
Center (“HKIAC”). The place of arbitration shall be in Hong Kong at HKIAC. There shall be three
(3) arbitrators. The language to be used in the arbitral proceedings shall be English. Any such
arbitration shall be administered by HKIAC in accordance with HKIAC Procedures for Arbitration in
force at the date of this Agreement including such additions to the UNCITRAL Arbitration Rules as
are therein contained.
(c) Nothing herein contained shall be construed as preventing any party from instituting legal
action in any court in any jurisdiction against any other party for any interim, provisional or
injunctive relief to the full extent permitted under applicable law, pending final resolution of
any Dispute under this Section. Any such interim, provisional or injunctive relief and the right
thereto shall fully and finally expire no later than upon judicial confirmation of the final
arbitration award, unless such relief is continued by the final arbitration award. The institution
and maintenance of any judicial action or proceeding for such provisional relief shall not
constitute a waiver of the right or obligation of any party to submit any Dispute to arbitration,
including any Dispute arising from the exercise of any such interim, provisional or injunctive
relief.
(d) Each party hereby consents to process being served by any party to this Agreement in any
suit, action or proceeding by delivery of a copy thereof in accordance with the provisions of
Section 5.01.
Section 5.07. Survival. The representations and warranties and covenants of the parties set
forth in this Agreement shall survive the Closing Date until the expiration of the statute of
limitations therefor.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year
first above written.
ELONG, INC. |
||||
By: | /s/ Guangfu Cui | |||
Name: | Guangfu Cui | |||
Title: | Chief Executive Officer | |||
TCH SAPPHIRE LIMITED |
||||
By: | /s/ Xx Xxxxxxx | |||
Name: | Xx Xxxxxxx | |||
Title: | Director |
SIGNATURE PAGE TO SHARE PURCHASE AGREEMENT
EXHIBIT A
INVESTOR RIGHTS AGREEMENT
EXHIBIT B
PURCHASE PRICE CALCULATION
Total number of Shares acquired |
11,070,000 | |||
One half the average closing price of ordinary shares of
the Company on the Nasdaq Global Market for the preceding
20 trading days |
US$ | 7.62325 | ||
Purchase Price |
US$ | 84,389,377.50 | ||
Initial Payment |
US$ | 85,000,000.00 | ||
Final Payment from Company to Purchaser |
US$ | 610,622.50 |