Exhibit 10.12
OPTION
AGREEMENT
This Option Agreement
(the “ Option Agreement ”) is entered into on
March 27, 2009, by and between Suzhou EZTripMart Business Services
Co., Ltd., a wholly foreign-owned enterprise established in the
People’s Republic of China (“ China ” or
“ PRC ”) with its registered office at Suite
201, 1 Venture House, Modern Industrial Square Phase II, 333 Xing
Pu Road, Suzhou Industrial Park, Suzhou (“ EZT
”); Shanghai EZTripMart Travel Agency Co., Ltd., a limited
liability company incorporated in the PRC with its registered
office at 13/F, 200 Taicang Road, Shanghai, China (the “
Company ”); and Shanghai Junli Air Service Co., Ltd.,
a limited liability company incorporated in China with its
registered office at Suite 503, 394-8 Yan’an Road West,
Shanghai, China and the sole shareholder of the Company (“
Junli ”). (Each of EZT, the Company and Junli is
herein referred to as a “ Party ” and collective
as the “ Parties ”).
RECITALS
A.
EZT engages, among other things, in
the research and development of computer software and hardware
technologies and the provision of related consulting services as
well as the provision of management consulting services as set
forth in more detail in its business license.
B.
The Company engages, among other
things, in the business of travel products and services as set
forth in more detail in its business license, including the
operation of websites for providing travel products and services
(the “ Business ”), and holds a travel agency
license and a Value-Added Telecommunication Services License
(collectively, “ Licenses ”).
C.
Junli is the registered shareholder
of the Company, owning 100% equity interest in the
Company.
D.
EZT currently provides the Company
with certain technical and management consulting and other related
services with respect to the latter’s conduct of its
Business.
E.
The Parties desire that at an
appropriate future time, EZT or its designee become an equity
investor in the Company, and in furtherance thereof, Junli wishes
to grant to EZT, and EZT wishes to accept from Junli, an
irrevocable option, pursuant to which EZT or its designee has the
right (but not an obligation) to acquire from Junli or the Company,
as the case may be, all or part of the equity interest in or the
asset of the Company at any future time, in its sole discretion, in
accordance with the terms and conditions hereof and the then
applicable PRC laws and regulations.
NOW, THEREFORE, in
consideration of the Parties’ mutual promises set forth
herein, and for good and valuable consideration, the adequacy of
which is hereby acknowledged, the Parties hereby agree as
follows:
1.
Definitions . In this Option
Agreement:
“Agreements and
Instruments” has the meaning given to such term
in Section 6(a)(vi).
“ Business
” has the meaning given to such term in Recital B.
“ Business
Day ” means any day when commercial banks are generally
open for business in Shanghai, China.
“ CIETAC
” has the meaning given to such term in Section
19(b).
“ Company
” has the meaning given to such term in the
preamble.
“ Dispute
” has the meaning given to such term in Section
19.
“ Dispute
Notice ” has the meaning given to such term in Section
19(a).
“ Exercise
” has the meaning given to such term in Section
4(a).
“ Exercise
Date ” has the meaning given to such term in Section
4(a).
“ Exercise
Price ” has the meaning given to such term in Section
3.
“ EZT
” has the meaning given to such term in the
preamble.
“ Governmental
Authority ” means any domestic or foreign court or other
governmental or regulatory authority, agency or other body with
jurisdiction over any of the assets or properties of any of the
Parties.
“ Interests
” has the meaning given to such term in Section 2.
“ Junli
” has the meaning given to such term in the
preamble.
“ Licenses
” has the meaning given to such term in Recital B.
“ Notice
” has the meaning given to such term in Section
4(a).
“ Option
” has the meaning given to such term in Section 2.
“ Option
Agreement ” has the meaning given to such term in the
preamble.
“ Optionee
” has the meaning given to such term in Section 2.
“ Party
” or “ Parties ” has the meaning given to
such term in the preamble.
“ 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.
“ PRC
” or “ China ” has the meaning given to
such term in the preamble. For the purpose of this Agreement, it
shall not include the Hong Kong Special Administrative Region of
the PRC, the Macau Special Administrative Region of the PRC and
Taiwan.
“ Transfer
” has the meaning given to such term in Section 2.
2.
Grant of Option
. On the terms
and subject to the conditions of this Option Agreement, Junli or
the Company (as the case may be) hereby irrevocably and
unconditionally grants EZT an exclusive option (the “
Option ”), under which EZT shall have the right (but
not an obligation) and in it sole discretion to purchase, or
designate any other Person to purchase or to purchase jointly with
such Person (together with EZT, “ Optionee ”),
up to 100% of the equity interest in the Company or all or part of
the Company’s assets (such equity interest and assets are
collectively referred to as the “ Interests ”)
on the terms and conditions set forth herein and subject to the
then applicable PRC laws and regulations. Such transfer of
the Interests pursuant to the exercise of the Option is referred to
as the “ Transfer .”
3.
Exercise Price.
Subject to any
mandatory valuation and compulsory requirement on the pricing for
the Transfer of the Interests as may be required by the then
applicable PRC laws and regulations, the price for the purchase of
the Interests covered by this Option (the “ Exercise
Price ”) shall be (A) if the Exercise is for the purchase
of the equity interest in the Company, the lesser of (i) the amount
of the registered capital of the Company as of the Exercise Date
and (ii) the book value of the Company as of the Exercise Date; or
(B) if the Exercise is for the purchase of the Company’s
assets, the book value of the Interests as of the Exercise Date
(after giving effect to depreciation and amortization, if any).
In the event of a partial exercise, the Exercise Price shall
be proportionately adjusted based on the amount of Interests
subject to the exercise.
2
4.
Exercise of Option
.
(a)
If and when EZT elects to exercise
the Option (the “ Exercise ”), EZT shall deliver
a notice substantially in the form of Exhibit A hereto (the
“ Notice ”) to Junli and the Board of Directors
of the Company stating, among other things, the type and amount of
the Interests to be purchased and the name of Optionee to purchase
the Interests subject to the exercise of the Option. Junli and the
Company shall, within 10 Business Days of the date of the Notice
(the “ Exercise Date ”), execute and submit to
the relevant PRC Governmental Authorities all necessary documents
as may be required by the Governmental Authorities to effect the
Transfer.
(b)
Each of Junli and the Company
further agrees to execute such documents and other papers and take
all necessary or appropriate action to approve and effect the
Transfer, including, without limitation, the registration of the
Transfer and the obtaining of an amended business license of the
Company, and to use all commercially reasonable efforts to ensure
that the Company obtain and maintain all licenses, certificates,
permits, authorizations, concessions, approvals, franchises and
other rights from all applicable PRC Governmental Authorities
necessary to engage in the Business conducted by the Company,
including, but not limited to, the Licenses, with any necessary
amendments thereto.
(c)
Subject to the terms and conditions
of the equity transfer agreement or asset purchase agreement to be
entered into by the Parties in connection with the Transfer, the
payment of the Exercise Price (as adjusted to reflect partial
Exercise) shall be made within 5 Business Day after the Company has
delivered to EZT all necessary and applicable approvals to effect
the Transfer and an authentic copy of the amended business license
of the Company giving effect to the Transfer.
(d)
The Option under this Option
Agreement is exercisable once or in multiple times, in whole or in
part by Optionee.
5.
Representations and
Warranties .
(a)
Each Party hereby represents,
warrants and undertakes to the other Parties that:
(i)
It is a limited liability
company duly organized and validly existing under PRC laws and is
qualified to do business and is in good standing in all
jurisdictions in which the nature of the business currently
conducted or proposed to be conducted by it or its ownership of
property makes such qualification necessary.
(ii)
It has all requisite corporate and
other power and authority to execute, deliver, and perform all of
its obligations under, this Option Agreement and to consummate the
transactions contemplated by this Option Agreement subject to
applicable regulatory restrictions and requirement
