Registration
No. 333-
UNITED STATES SECURITIES AND
EXCHANGE COMMISSION
Washington, D.C.
20549
Form F-3
REGISTRATION
STATEMENT
UNDER
THE SECURITIES ACT OF
1933
Ctrip.com International,
Ltd.
(Exact name of Registrant as
specified in its charter)
Not Applicable
(Translation of
Registrants name into English)
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Cayman Islands
(State or other jurisdiction
of
incorporation or organization)
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Not Applicable
(I.R.S. Employer
Identification Number)
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99 Fu
Quan Road
Shanghai 200335, Peoples Republic of China
(86
21) 3406-4880
(Address and telephone number of
Registrants principal executive offices)
CT
Corporation System
111 Eighth Avenue
New York, New York 10011
(212) 664-1666
(Name, address, and telephone
number of agent for service)
Copies to:
Z. Julie
Gao, Esq.
Skadden, Arps, Slate, Meagher & Flom LLP
c/o 42/F,
Edinburgh Tower, The Landmark
15 Queens Road, Central
Hong Kong
(852) 3740-4850
Approximate date of commencement of proposed sale to the
public:
From time to time after the effective
date of this registration statement.
If only securities being registered on this Form are being
offered pursuant to dividend or interest reinvestment plans,
please check the following
box.
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If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to
Rule 415 under the Securities Act of 1933, check the
following
box.
þ
If this Form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act,
please check the following box and list the Securities Act
registration statement number of the earlier effective
registration statement for the same
offering.
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If this Form is a post-effective amendment filed pursuant to
Rule 462(c) under the Securities Act, check the following
box and list the Securities Act registration statement number of
the earlier effective registration statement for the same
offering.
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If this Form is a registration statement pursuant to General
Instruction I.C. or a post-effective amendment thereto that
shall become effective upon filing with the Commission pursuant
to Rule 462(e) under the Securities Act, check the
following
box.
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If this Form is a post-effective amendment to a registration
statement filed pursuant to General Instruction I.C. filed
to register additional securities or additional classes of
securities pursuant to Rule 413(b) under the Securities
Act, check the following
box.
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CALCULATION OF REGISTRATION FEE
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Proposed Maximum
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Proposed Maximum
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Amount of
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Title of Each Class of
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Amount to be
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Offering
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Aggregate
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Registration
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Securities to be Registered(1)
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Registered(2)
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Price per Share(2)
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Offering Price(2)
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Fee(2)
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Ordinary shares, par value $0.01 per share
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(1)
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These ordinary shares are represented by American depositary
shares, each of which represents 0.25 of an ordinary share. The
Registrants ADSs issuable on deposit of the ordinary
shares registered hereby have been registered under separate
registration statements on
Form F-6.
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(2)
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An indeterminate aggregate number of securities is being
registered as may from time to time be sold at indeterminate
prices. In accordance with Rules 456(b) and 457(r), the
Registrant is deferring payment of all of the registration fee.
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PROSPECTUS
Ctrip.com
International, Ltd.
American
Depositary Shares
(each representing 0.25 of an ordinary share, par value $0.01
per ordinary share)
This prospectus relates to the proposed sale from time to time
by us or any selling shareholder of American depositary shares,
or ADSs, of Ctrip.com International, Ltd., or Ctrip. Each ADS
represents 0.25 of an ordinary share, par value $0.01 per
ordinary share, of Ctrip. We will not receive any proceeds from
the ADSs sold by any selling shareholder.
This prospectus may not be used to consummate any sales of
securities unless accompanied by a prospectus supplement which
will describe the method and terms of the offering. We will
provide the specific terms of any offering and the offered
securities as well as information about the selling
shareholders, if any, in one or more supplements to this
prospectus. Any prospectus supplement may also add, update or
change information contained in this prospectus.
Investing in our ADSs involves a high degree of risk. You
should carefully consider the Risk Factors which may
be included in any prospectus supplement or which are
incorporated by reference into this prospectus.
We or any selling shareholder may sell the securities to or
through underwriters, to other purchasers, through agents, or
through a combination of these methods. The names of any
underwriters will be stated in the applicable prospectus
supplement.
Neither the Securities and Exchange Commission nor any state
securities commission has approved or disapproved of these
securities or determined if this prospectus is truthful or
complete. Any representation to the contrary is a criminal
offense.
The date of this prospectus is March 2, 2010.
ABOUT
THIS PROSPECTUS
You should read this prospectus and any prospectus supplement
together with the additional information described under the
heading Where You Can Find More Information About Us
and Incorporation of Documents by Reference.
In this prospectus, unless otherwise indicated or unless the
context otherwise requires:
(1) the terms we, us, our
company, our and Ctrip refer to
Ctrip.com International, Ltd., its predecessor entities and
subsidiaries and, in the context of describing our operations
and consolidated financial information, also include its
affiliated Chinese entities;
(2) shares and ordinary shares
refer to our ordinary shares, par value of US$0.01 per ordinary
share;
(3) ADSs refers to our American depositary
shares, each of which represents 0.25 of an ordinary share;
(4) China and PRC refer to the
Peoples Republic of China and, solely for the purpose of
this prospectus, exclude Taiwan, Hong Kong and Macau, and
Greater China refers to the Peoples Republic
of China, Taiwan, Hong Kong and Macau; and
(5) all references to RMB and
Renminbi are to the legal currency of China and all
references to U.S. dollars, US$,
dollars and $ are to the legal currency
of the United States.
This prospectus is part of a registration statement that we
filed with the Securities and Exchange Commission, or the SEC,
utilizing a shelf registration process. Under this
shelf process, we or any selling shareholder may sell the
securities described in this prospectus in one or more
offerings. This prospectus provides you with a general
description of the securities we may offer. Each time we or any
selling shareholder sell securities pursuant to the registration
statement, we will provide a prospectus supplement that will
contain specific information about the terms of that offering.
The prospectus supplement may also add, update or change
information contained or incorporated by reference in this
prospectus.
FORWARD-LOOKING
STATEMENTS
This prospectus and the documents incorporated by reference
contain forward-looking statements that reflect our current
expectations and views of future events. These statements are
made under the safe harbor provisions of the
U.S. Private Securities Litigation Reform Act of 1995. You
can identify these forward-looking statements by terminology
such as may, will, expect,
anticipate, future, intend,
plan, believe, estimate,
is/are likely to or other similar expressions. We
have based these forward-looking statements largely on our
current expectations and projections about future events and
financial trends that we believe may affect our financial
condition, results of operations, business strategy and
financial needs. These forward-looking statements include, among
other things:
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our anticipated growth strategies;
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our future business development, results of operations and
financial condition;
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our ability to continue to control costs and maintain
profitability; and
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the expected growth of and change in the travel and online
commerce industries in China.
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The forward-looking statements included in this prospectus and
the documents incorporated by reference are subject to risks,
uncertainties and assumptions about our company. Our actual
results of operations may differ materially from the
forward-looking statements as a result of the risk factors
disclosed in the documents incorporated by reference herein or
in any accompanying prospectus supplement, including the
following risks:
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the slow-down of economic growth in China and the global
economic downturn have adversely affected our business, and may
materially and adversely affect our business growth and
profitability;
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general declines or disruptions in the travel industry due to
outbreak of a serious contagious disease or any other reasons
may materially and adversely affect our business and results of
operations;
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the trading price of our ADSs has been volatile historically and
may continue to be volatile regardless of our operating
performance;
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if we are unable to maintain existing relationships with travel
suppliers and strategic alliances, or establish new arrangements
with travel suppliers and strategic alliances similar to those
we currently have, our business may suffer;
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if we fail to further increase our brand recognition, we may
face difficulty in obtaining new business partners and
consumers, and our business may be harmed;
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if we do not compete successfully against new and existing
competitors, we may lose our market share, and our profitability
may be adversely affected;
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our business could suffer if we do not successfully manage
current growth and potential future growth;
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our strategy to acquire or invest in complementary businesses
and assets involves significant risks and uncertainty that may
prevent us from achieving our objectives and harm our financial
condition and results of operations;
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our quarterly results are likely to fluctuate because of
seasonality in the travel industry in Greater China;
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our business may be harmed if our infrastructure and technology
are damaged or otherwise fail or become obsolete;
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our business may be severely disrupted if we lose the services
of our key executives;
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inflation in China and in other countries may disrupt our
business and have an adverse effect on our financial condition
and results of operations; and
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if the ownership structure of our affiliated Chinese entities
and the contractual arrangements among us, our consolidated
affiliated Chinese entities and their shareholders are found to
be in violation of any PRC laws or regulations, we
and/or
our
affiliated Chinese entities may be subject to fines and other
penalties, which may adversely affect our business and results
of operations.
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We would like to caution you not to place undue reliance on
these forward-looking statements and you should read these
statements in conjunction with the risk factors disclosed in the
documents incorporated by reference herein or in any
accompanying prospectus supplement for a more complete
discussion of the risks of an investment in our securities and
other risks outlined in our other filings with the SEC. The
forward-looking statements included in this prospectus or
incorporated by reference into this prospectus are made only as
of the date of this prospectus or the date of the incorporated
document, and we do not undertake any obligation to update the
forward-looking statements except as required under applicable
law.
OUR
COMPANY
We are a leading travel service provider for hotel
accommodations, airline tickets and packaged tours in China. We
aggregate information on hotels and flights and enable our
customers to make informed and cost-effective hotel and flight
bookings. We also sell packaged tours that include
transportation and accommodations, as well as guided tours in
some instances. Since commencing operations in 1999, we have
become one of the best-known travel brands in China. We
pioneered the development of a reservation and fulfillment
infrastructure that enables our customers to:
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choose and reserve hotel rooms in cities throughout China and
selected cities abroad;
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book and purchase air tickets for domestic flights and
international flights originating in China; and
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choose and reserve packaged tours that include transportation
and accommodations, as well as guided tours in some instances.
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We target our services primarily at business and leisure
travelers in China who do not travel in groups. These types of
travelers, who are referred to in the travel industry as FITs
(frequent independent travelers) and whom we
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refer to as independent travelers in this prospectus, form a
traditionally under-served yet fast-growing segment of the China
travel market. We act as an agent in substantially all of our
transactions and generally do not take inventory risks with
respect to the hotel rooms and airline tickets booked through
us. We derive our hotel reservation, air-ticketing and
packaged-tour revenues mainly through commissions from our
travel suppliers, primarily based on the transaction value of
the rooms, airline tickets and packaged-tour products,
respectively, booked through our services.
We believe that we are the largest consolidator of hotel
accommodations in China in terms of the number of room nights
booked. As of December 31, 2009, we had secured room supply
relationships with approximately 9,800 hotels in China and
approximately 19,000 hotels abroad, which cover a broad range of
hotels in terms of price and geographical location. As of
December 31, 2009, we had guaranteed room allotments, which
allow us to sell hotel rooms to our customers even during peak
seasons and provide instant confirmation, with approximately 70%
of the hotels in China with whom we have a supply relationship.
Rooms booked in hotels with guaranteed allotment arrangement
accounted for approximately 80% of our hotel transactions for
the year ended December 31, 2009. The quality and depth of
our hotel supplier network enable us to offer our customers a
wide selection of hotel accommodations. We believe our ability
to offer reservations at highly rated hotels is particularly
appealing to our customers. Revenues from our bookings for
three-, four- and five-star hotels comprised approximately 80%
of our revenues from our hotel reservation business in 2009.
We believe that we are the largest consolidator of airline
tickets in China in terms of the total number of airline tickets
booked and sold. Our airline ticket suppliers include all major
Chinese airlines and many international airlines that operate
flights originating in China. We are among the few airline
ticket consolidators in China that maintain a centralized
reservation system and ticket fulfillment infrastructure
covering substantially all of the economically prosperous
regions of China. Our customers can make flight reservations on
their chosen routes and arrange ticket payment and delivery
through our ticketing offices and third-party agencies located
in over 50 major cities in China.
We also offer independent leisure travelers bundled
packaged-tour products, which include transportation and
accommodation, as well as guided tours in some instances. Our
packaged-tour products cover a variety of domestic and
international destinations.
We offer our services to customers through an advanced
transaction and service platform consisting of our centralized
toll-free,
24-hour
customer service centers and bilingual websites. In 2009,
transactions effected through our customer service centers
accounted for approximately two-thirds of our transaction
volume, while our websites accounted for the balance.
We have experienced significant growth since we commenced
operations in 1999. Our revenues grew from RMB 559 million
in 2005 to RMB 2.1 billion (US$311 million) in 2009,
which represented a compound annual growth rate, or CAGR, of 40%
and our net income grew from RMB 225 million in 2005 to RMB
667 million (US$98 million) in 2009, which represented
a CAGR of 31%.
We commenced our business in June 1999. In March 2000, we
established a new holding company, Ctrip.com International,
Ltd., in the Cayman Islands as an exempt company with limited
liability under the Companies Law of the Cayman Islands. Since
our inception, we have conducted the majority of our operations
in China and in 2009, expanded our operations in Greater China.
Our principal executive offices are located at 99 Fu Quan Road,
Shanghai 200335, Peoples Republic of China. Our telephone
number is
(86-21)
3406-4880
and our principal website address is www.ctrip.com. The contents
of our websites should not be deemed to be part of this
prospectus. Our agent for service of process in the United
States is CT Corporation System, 111 Eighth Avenue, New York,
New York 10011.
RISK
FACTORS
Please see the factors set forth under the heading Risk
Factors in our annual report on
Form 20-F
for the year ended December 31, 2009, which is incorporated
in this prospectus by reference, and any accompanying prospectus
supplement before investing in any securities that may be
offered pursuant to this prospectus.
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USE OF
PROCEEDS
Except as may be described otherwise in an accompanying
prospectus supplement, (i) we intend to use the net
proceeds from the sale of securities by us to fund capital
expenditures and for other general corporate purposes and
(ii) we will not receive any of the proceeds from the sale
of our securities by any selling shareholder.
DESCRIPTION
OF SHARE CAPITAL
As of the date of this prospectus, our authorized share capital
consists of 100,000,000 ordinary shares, par value US$0.01 each,
34,074,835 of which are issued and outstanding (excluding the
1,465,281 ordinary shares that we reserved for issuance upon the
exercise of our outstanding options). As of the same date, there
are 4,392,619 options issued and outstanding under our share
incentive plans, which, once vested, are exercisable for the
equivalent amount of our ordinary shares. We are a Cayman
Islands company and our affairs are governed by our memorandum
and articles of association and the Companies Law (2009
Revision) of the Cayman Islands, which is referred to as the
Companies Law below.
On August 15, 2007, Rakuten, Inc., a then shareholder of
our company completed a public offering and sale of 13,290,000
ADSs, each then representing one-half of an ordinary share, par
value US$0.01 per ordinary share.
On April 11, 2006, we effected a change of the ratio of our
ADSs to ordinary shares from one ADS representing two ordinary
shares to one ADS representing one ordinary share. On
July 31, 2007, we effected a further change of the ratio of
our ADSs to ordinary shares from one ADS representing one
ordinary share to two ADSs representing one ordinary share. On
January 21, 2010, we effected a further change of the ratio
of our ADSs to ordinary shares from two ADSs representing one
ordinary share to four ADSs representing one ordinary share.
Unless otherwise indicated, ADSs and per ADS amount in this
prospectus have been retroactively adjusted to reflect the
changes in ratio for all periods presented.
Ordinary
Shares
General.
All of our outstanding ordinary
shares are fully paid and non-assessable. Certificates
representing the ordinary shares are issued in registered form.
Our shareholders who are nonresidents of the Cayman Islands may
freely hold and vote their shares.
Dividends.
The holders of our ordinary shares
are entitled to such dividends as may be declared by our board
of directors subject to the Companies Law.
Voting Rights.
Each ordinary share is entitled
to one vote on all matters upon which the ordinary shares are
entitled to vote. Voting at any meeting of shareholders is by
show of hands unless a poll is demanded. A poll may be demanded
by the chairman of our board of directors or any other
shareholder present in person or by proxy and holding at least
ten percent of the shares giving a right to vote at the meeting.
A quorum required for a meeting of shareholders consists of at
least two shareholders holding at least one-third of the
outstanding voting shares in our company, present or by proxy
or, if a corporation or other non-natural person, by its duly
authorized representative. Shareholders meetings are held
annually and may be convened by our board of directors on its
own initiative or upon a request to the directors by
shareholders holding in the aggregate ten percent or more of our
voting share capital. Advance notice of at least seven days is
required for the convening of our annual general
shareholders meeting and other shareholders meetings.
An ordinary resolution to be passed by the shareholders requires
the affirmative vote of a simple majority of the votes attaching
to the ordinary shares cast in a general meeting, while a
special resolution requires the affirmative vote of no less than
two-thirds of the votes cast attaching to the ordinary shares. A
special resolution is required for matters such as a change of
name or amending the memorandum and articles of association.
Holders of the ordinary shares may by ordinary resolution, among
other things, make changes in the amount of our authorized share
capital and consolidate and divide all or any of our share
capital into shares of larger amount than our existing share
capital and cancel any shares.
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Liquidation.
On a return of capital on winding
up or otherwise (other than on conversion, redemption or
purchase of shares), assets available for distribution among the
holders of ordinary shares shall be distributed among the
holders of our ordinary shares on a pro rata basis. If our
assets available for distribution are insufficient to repay all
of the
paid-up
capital, the assets will be distributed so that the losses are
borne by our shareholders proportionately.
Calls on Shares and Forfeiture of Shares.
Our
board of directors may from time to time make calls upon
shareholders for any amounts unpaid on their shares in a notice
served to such shareholders at least 14 days prior to the
specified time and place of payment. The shares that have been
called upon and remain unpaid are subject to forfeiture.
Redemption of Shares.
Subject to the
provisions of the Companies Law, we may issue shares on the
terms that they are, or at our option or at the option of the
holders are, subject to redemption on such terms and in such
manner as may be determined by special resolution.
Variations of Rights of Shares.
All or any of
the special rights attached to any class of shares may, subject
to the provisions of the Companies Law, be varied either with
the consent in writing of the holders of three-fourths of the
issued shares of that class or with the sanction of a special
resolution passed at a general meeting of the holders of the
shares of that class.
Shareholder
Rights Plan
On November 23, 2007, our board of directors declared a
dividend of one ordinary share purchase right, or a Right, for
each of our ordinary shares outstanding at the close of business
on December 3, 2007. As long as the Rights are attached to
the ordinary shares, we will issue one Right (subject to
adjustment) with each new ordinary share so that all such
ordinary shares will have attached Rights. When exercisable,
each Right will entitle the registered holder to purchase from
us one ordinary share at a price of $700 per ordinary share,
subject to adjustment.
The Rights will expire on November 23, 2017, subject to our
right to extend such date, and are exercisable upon the earlier
of (i) 10 days following a public announcement that a
person or group of affiliated or associated persons has
acquired, or obtained the right to acquire, beneficial ownership
of 20% or more of the voting securities of our company, or
(ii) 10 business days following the commencement or
announcement of an intention to make a tender offer or exchange
offer, the consummation of which would result in the beneficial
ownership by a person or group of 20% or more of the voting
securities of our company. Upon exercise, all Rights holders
except for the potential acquirer will be entitled to acquire
our ordinary shares at a discount. We are entitled to redeem the
Rights in whole at any time on or before the tenth day following
acquisition by a person or group of 20% or more of our voting
securities (which for these purposes include ADSs representing
ordinary shares).
The Rights were not distributed in response to any specific
effort to acquire control of our company.
Differences
in Corporate Law
The Companies Law is modeled after that of the United Kingdom
but does not follow recent United Kingdom statutory enactments.
In addition, the Companies Law differs from laws applicable to
United States corporations and their shareholders. Set forth
below is a summary of the significant differences between the
provisions of the Companies Law applicable to us and the laws
applicable to companies incorporated in the United States and
their shareholders.
Mergers and Similar Arrangements.
The
Companies Law permits mergers and consolidations between Cayman
Islands companies and between Cayman Islands companies and
non-Cayman Islands companies.
For these purposes, (a) merger means the
merging of two or more constituent companies and the vesting of
their undertaking, property and liabilities in one of such
companies as the surviving company and (b) a
consolidation means the combination of two or more
constituent companies into a consolidated company and the
vesting of the undertaking, property and liabilities of such
companies to the consolidated company. In order to effect such a
merger or consolidation, the directors of each constituent
company must approve a written plan of merger or consolidation
(a Plan), which must then be authorized by either
(a) a special resolution of the shareholders of each
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constituent company voting together as one class if the shares
to be issued to each shareholder in the consolidated or
surviving company will have the same rights and economic value
as the shares held in the relevant constituent company or
(b) a shareholder resolution of each constituent company
passed by a majority in number representing seventy-five percent
in value of the shareholders voting together as one class.
The Plan must be filed with the Registrar of Companies together
with a declaration as to the solvency of the consolidated or
surviving company, a list of the assets and liabilities of each
constituent company and an undertaking that a copy of the
certificate of merger or consolidation will be given to the
members and creditors of each constituent company and published
in the Cayman Islands Gazette. Dissenting shareholders have the
right to be paid the fair value of their shares (which, if not
agreed between the parties, will be determined by the Cayman
Islands court) if they follow the required procedures, subject
to certain exceptions. Court approval is not required for a
merger or consolidation which is effected in compliance with
these statutory procedures.
In addition, there are statutory provisions that facilitate the
reconstruction and amalgamation of companies, provided that the
arrangement in question is approved by a majority in number of
each class of shareholders and creditors with whom the
arrangement is to be made, and who must in addition represent
three-fourths in value of each such class of shareholders or
creditors, as the case may be, that are present and voting
either in person or by proxy at a meeting, or meetings convened
for that purpose. The convening of the meetings and subsequently
the arrangement must be sanctioned by the Grand Court of the
Cayman Islands. While a dissenting shareholder would have the
right to express to the court the view that the transaction
should not be approved, the court can be expected to approve the
arrangement if it satisfies itself that:
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the statutory provisions as to majority vote have been complied
with;
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the shareholders have been fairly represented at the meeting in
question;
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the arrangement is such as a businessman would reasonably
approve; and
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the arrangement is not one that would more properly be
sanctioned under some other provision of the Companies Law.
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When a take-over offer is made and accepted by holders of ninety
percent of the ordinary shares within four months, the offerer
may, within a two-month period, require the holders of the
remaining ordinary shares to transfer such ordinary shares on
the terms of the offer. An objection may be made to the Grand
Court of the Cayman Islands but is unlikely to succeed unless
there is evidence of fraud, bad faith or collusion.
If the arrangement and reconstruction are thus approved, any
dissenting shareholders would have no rights comparable to
appraisal rights, which would otherwise ordinarily be available
to dissenting shareholders of United States corporations,
providing rights to receive payment in cash for the judicially
determined value of the ordinary shares.
Shareholders Suits.
The Cayman Islands
courts can be expected to follow English case law precedents.
The common law principles (namely the rule in Foss v.
Harbottle and the exceptions thereto) which permit a minority
shareholder to commence a class action against or derivative
actions in the name of the company to challenge (a) an act
which is ultra vires the company or illegal, (b) an act
which constitutes a fraud against the minority where the
wrongdoers are themselves in control of the company, and
(c) an action which requires a resolution with a qualified
(or special) majority which has not been obtained) have been
applied and followed by the courts in the Cayman Islands.
Inspection
of Books and Records
Holders of our ordinary shares will have no general right under
Cayman Islands law to inspect or obtain copies of our list of
shareholders or our corporate records. However, we will provide
our shareholders with our annual audited financial statements.
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Indemnification
Cayman Islands law does not limit the extent to which a
companys articles of association may provide for
indemnification of officers and directors, except to the extent
any such provision may be held by the Cayman Islands courts to
be contrary to public policy, such as to provide indemnification
against civil fraud or the consequences of committing a crime.
Our articles of association provide for indemnification of
officers and directors for losses, damages, costs and expenses
incurred in their capacities as such, except through their own
willful neglect or default.
Insofar as indemnification for liabilities arising under the
U.S. Securities Act of 1933, as amended, or the Securities
Act, may be permitted to directors, officers or persons
controlling us pursuant to the foregoing provisions, we have
been advised that, in the opinion of the SEC, such
indemnification is against public policy as expressed in the
Securities Act and therefore is unenforceable.
DESCRIPTION
OF AMERICAN DEPOSITARY SHARES
The Bank of New York Mellon is acting as the depositary for our
ADSs. The depositarys corporate trust office is at 101
Barclay Street, New York, New York 10286. Each ADS represents
0.25 of an ordinary share (or a right to receive 0.25 of an
ordinary share) or other securities, cash or other property
deposited with The Bank of New York Mellon but not distributed
to ADS holders. ADSs may be represented by certificates that are
commonly known as American depositary receipts, or
ADRs. The depositary appointed the Hong Kong office
of The Hongkong and Shanghai Banking Corporation Limited as the
custodian to safekeep the securities on deposit.
As an owner of ADSs, you may hold your ADSs either by means of
an ADR registered in your name, through a brokerage or
safekeeping account, or through an account established by the
depositary in your name reflecting the registration of
uncertificated ADSs directly on the books of the depositary
(commonly referred to as the direct registration
system, or DRS). The DRS reflects the uncertificated
(book-entry) registration of ownership of ADSs by the
depositary. Under the DRS, ownership of ADSs is evidenced by
periodic statements issued by the depositary to the holders of
the ADSs. The DRS includes automated transfers between the
depositary and The Depository Trust Company, or DTC, the
central book-entry clearing and settlement system for equity
securities in the United States. If you decide to hold your
ADSs through your brokerage or safekeeping account, you must
rely on the procedures of your broker or bank to assert your
rights as an ADS owner. Banks and brokers typically hold
securities such as the ADSs through clearing and settlement
systems such as DTC. The procedures of such clearing and
settlement systems may limit your ability to exercise your
rights as an owner of ADSs. Please consult with your broker or
bank if you have any questions concerning these limitations and
procedures. All ADSs held through DTC will be registered in the
name of a nominee of DTC. This summary description assumes you
have opted to own the ADSs directly by means of an ADS
registered in your name and, as such, we will refer to you as
the ADS holder. When we refer to you, we
assume the reader owns ADSs and will own ADSs at the relevant
time.
As an ADS holder, we will not treat you as one of our
shareholders and you will not have shareholder rights. The
depositary will be the holder of the ordinary shares underlying
your ADSs. However, as a holder of ADSs, you will have ADS
holder rights. A deposit agreement among us, the depositary and
you, as an ADS holder and the beneficial owners of ADSs set out
ADS holder rights as well as the rights and obligations of the
depositary. New York law governs the deposit agreement and
the ADSs.
We are providing you with a summary of the deposit agreement.
You should read this summary together with the deposit agreement
and the form of ADR attached thereto. A copy of the deposit
agreement is on file with the SEC as Exhibit 2.4 of our
annual report on
Form 20-F
(file
no. 001-33853)
filed with the SEC on April 29, 2008. You may obtain a copy
of the deposit agreement from the SECs Public Reference
Room at 100 F Street, N.W., Washington, D.C.
20549. You can also inspect a copy of the deposit agreement at
the corporate trust office of the depositary, currently located
at 101 Barclay Street, New York, New York 10286, and at the
principal offices of the custodian under the deposit agreement,
currently located at 1 Queens Road, Central, Hong Kong. We
urge you to review the deposit agreement in its entirety as well
as the form of ADR attached to the deposit agreement.
8
Dividends
and Other Distributions
The Bank of New York Mellon has agreed to pay to you the cash
dividends or other distributions it or the custodian receives on
ordinary shares or other deposited securities after deducting
its fees and expenses. You will receive these distributions in
proportion to the number of ordinary shares your ADSs represent.
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Cash.
The Bank of New York Mellon will convert
any cash dividend or other cash distribution we pay on the
ordinary shares into U.S. dollars, if it can do so on a
reasonable basis and can transfer the U.S. dollars to the
United States. If that is not possible or if any approval from
any government is needed and cannot be obtained without
excessively burdensome or otherwise unreasonable efforts, or
there are foreign exchange controls in place that prohibit such
transfer, the deposit agreement allows The Bank of New York
Mellon to distribute RMB only to those ADS holders to whom it is
possible to do so. It will hold RMB it cannot convert for the
account of the ADS holders who have not been paid. It will not
invest RMB and it will not be liable for interest.
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Before making a distribution, any withholding taxes that must be
paid will be deducted. See Taxation Certain
U.S. Federal Income Tax Consideration
Information Reporting and Backup Withholding and
Taxation PRC Taxation. The Bank of New
York Mellon will distribute only whole U.S. dollars and
cents and will round fractional cents to the nearest whole cent.
If the exchange rates fluctuate during a time when The Bank
of New York Mellon cannot convert RMB, you may lose some or all
of the value of the distribution.
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Shares.
The Bank of New York Mellon may
distribute additional ADSs representing any ordinary shares we
may distribute as a dividend or free distribution, if we furnish
it promptly with satisfactory evidence that it is legal to do
so. The Bank of New York Mellon will only distribute whole ADSs.
It will sell ordinary shares which would require it to issue a
fractional ADS and distribute the net proceeds in the same way
as it does with cash. If The Bank of New York Mellon does not
distribute additional ADSs, each ADS will also represent the new
ordinary shares.
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Rights to Purchase Additional Shares.
If we
offer holders of our ordinary shares any rights to subscribe for
additional ordinary shares or any other rights, The Bank of New
York Mellon may make these rights available to you. We must
first instruct The Bank of New York Mellon to do so and furnish
it with satisfactory evidence that it is legal to do so. If we
do not furnish this evidence
and/or
give
these instructions, and The Bank of New York Mellon decides it
is practical to sell the rights, The Bank of New York Mellon
will sell the rights and distribute the proceeds, in the same
way as it does with cash. The Bank of New York Mellon may allow
rights that are not distributed or sold to lapse. In that case,
you will receive no value for them.
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If The Bank of New York Mellon makes rights available to you, it
will exercise the rights and purchase the ordinary shares on
your behalf. The depositary will then deposit the ordinary
shares and deliver the ADSs to you. It will only exercise rights
if you pay it the exercise price and any other charges the
rights require you to pay.
U.S. securities laws may restrict the sale, deposit,
cancellation and transfer of the ADSs issued after exercise of
rights. Under the deposit agreement, The Bank of New York Mellon
will not distribute rights to holders of ADSs unless the
distribution and sale of rights and the securities to which
these rights relate are either exempt from registration under
the Securities Act with respect to all holders of ADSs, or are
registered under the provisions of the Securities Act. We can
give no assurance that we can establish an exemption from
registration under the Securities Act and we are under no
obligation to file a registration statement with respect to
these rights or underlying securities or to endeavor to have a
registration statement declared effective. In this case, The
Bank of New York Mellon may deliver the ADSs under a separate
restricted deposit agreement which will contain the same
provisions as the deposit agreement, except for changes needed
to put the restrictions in place.
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Other Distributions.
The Bank of New York
Mellon will send to you anything else we distribute on deposited
securities by means it thinks are legal, fair and practical. If
it cannot make the distribution in that way, The Bank of New
York Mellon has a choice. It may decide to sell what we
distributed and distribute the net proceeds in the same way as
it does with cash or it may decide to hold what we distributed,
in which case ADSs will also represent the newly distributed
property.
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The Bank of New York Mellon is not responsible if it decides
that it is unlawful or impractical to make a distribution
available to any ADS holders. We have no obligation to register
ADSs, ordinary shares, rights or other securities under the
Securities Act. We also have no obligation to take any other
action to permit the distribution of ADSs, ordinary shares,
rights or anything else to ADS holders. This means that you may
not receive the distribution we make on our ordinary shares or
any value for them if it is illegal or impractical for us to
make them available to you.
Deposit,
Withdrawal and Cancellation
The Bank of New York Mellon will deliver ADSs if you or your
broker deposit ordinary shares or evidence of rights to receive
ordinary shares with the custodian. Upon payment of its fees and
expenses and of any taxes or charges, such as stamp taxes or
stock transfer taxes or fees, The Bank of New York Mellon will
register the appropriate number of ADSs in the names you request
and will deliver the ADSs at its corporate trust office to the
persons you request.
You may turn in your ADSs at The Bank of New York Mellons
office. Upon payment of its fees and expenses and of any taxes
or charges, such as stamp taxes or stock transfer taxes or fees,
The Bank of New York Mellon will deliver:
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the deliverable portion of the underlying ordinary shares to an
account designated by you; and
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the deliverable portion of any other deposited securities
underlying the ADSs at the office of the custodian. Or, at your
request, risk and expense, The Bank of New York Mellon will
deliver the deliverable portion of the deposited securities at
its corporate trust office.
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Voting
Rights
You may instruct The Bank of New York Mellon to vote the
ordinary shares underlying your ADSs but only if we ask The Bank
of New York Mellon to ask for your instructions. Otherwise, you
will not be able to exercise your right to vote unless you
withdraw the ordinary shares. However, you may not know about
the meeting enough in advance to withdraw the ordinary shares.
If we ask for your instructions, The Bank of New York Mellon
will notify you of the upcoming vote and arrange to deliver our
voting materials to you. The materials will:
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describe the matters to be voted on; and
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explain how you, on a specified date, may instruct The Bank of
New York Mellon to vote the ordinary shares or other deposited
securities underlying your ADSs as you direct. For instructions
to be valid, The Bank of New York Mellon must receive them on or
before the date specified. The Bank of New York Mellon will try,
in compliance with Cayman Islands law and the provisions of our
memorandum and articles of association, to vote or to have its
agents vote the ordinary shares or other deposited securities as
you instruct or as described below.
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We cannot assure you that you will receive the voting materials
in time to ensure that you can instruct The Bank of New York
Mellon to vote the ordinary shares underlying your ADSs. In
addition, The Bank of New York Mellon and its agents are not
responsible for failing to carry out voting instructions or for
the manner of carrying out voting instructions. This means that
you may not be able to exercise your right to vote and there may
be nothing you can do if the ordinary shares underlying your
ADSs are not voted as you requested.
If we timely ask The Bank of New York Mellon to solicit your
instructions and The Bank of New York Mellon does not receive
voting instructions from you by the specified date, it will
consider you to have authorized and directed it to give a
discretionary proxy to a person designated by us to vote the
number of deposited securities represented by your ADSs. The
Bank of New York Mellon will give a discretionary proxy to such
person in those circumstances to vote on all questions to be
voted upon unless we notify The Bank of New York Mellon that:
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we do not wish to receive a discretionary proxy;
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there is substantial shareholder opposition to the particular
question; or
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the particular question would have a material and adverse impact
on our shareholders.
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Notices
and Reports
Upon receipt of notice of any meeting of holders of ordinary
shares or other deposited securities, if requested in writing by
our company, The Bank of New York Mellon will, as soon as
practicable thereafter, mail to the owners of ADSs a notice
which contains (a) such information as is contained in such
notice of meeting received by The Bank of New York Mellon from
our company, (b) a statement that the owners of ADSs as of
the close of business on a specified record date will be
entitled, subject to any applicable provisions of Cayman Islands
law and of the memorandum and articles of association of our
company, to instruct The Bank of New York Mellon as to the
exercise of the voting rights, if any, pertaining to the amount
of ordinary shares or other deposited securities represented by
their respective ADSs and (c) a statement as to the manner
in which instructions may be given.
The Bank of New York Mellon will make available for inspection
by registered holders at its Corporate Trust Office any
reports and communications, including any proxy soliciting
material, received from our company, which are both
(a) received by The Bank of New York Mellon as the holder
of the deposited securities, and (b) made generally
available to the holders of such deposited securities by our
company. The Bank of New York Mellon will also, upon our written
request, send to the registered holders copies of such reports
when furnished by our company pursuant to the deposit agreement.
Any such reports and communications, including any proxy
soliciting material, furnished to The Bank of New York Mellon by
our company will be furnished in English.
Fees and
Expenses
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Persons depositing shares or ADR holders must pay:
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For:
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US$5.00 (or less) per 100 ADSs (or portion thereof)
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Issuance of ADSs, including issuances
resulting from a distribution of shares or rights or other
property
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Cancellation of ADSs for the purpose of
withdrawal, including if the deposit agreement terminates
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US$0.02 (or less) per ADS
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Any cash distribution to ADS registered
holders
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A fee equivalent to the fee that would be payable if securities
distributed to you had been shares and the shares had been
deposited for issuance of ADSs
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Distribution of securities distributed
to holders of deposited securities which are distributed by the
depositary to ADS registered holders
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US$0.02 (or less) per ADSs per calendar year
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Depositary services
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Registration or transfer fees
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Transfer and registration of shares on
our share register to or from the name of the depositary or its
agent when you deposit or withdraw shares
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Expenses of the depositary
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Converting foreign currency to U.S.
dollars
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Cable, telex, and facsimile transmission
expenses (when expressly provided in the deposit agreement)
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Taxes and other governmental charges the depositary or the
custodian have to pay on any ADS or share underlying an ADS, for
example, stock transfer taxes, stamp duty or withholding taxes
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As necessary
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Any charges incurred by the depositary or its agents for
servicing the deposited securities
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As necessary
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Payment
of Taxes
You will be responsible for any taxes or other governmental
charges payable on your ADSs or on the deposited securities
underlying your ADSs. The Bank of New York Mellon may refuse to
transfer your ADSs or allow you to withdraw the deposited
securities underlying your ADSs until such taxes or other
charges are paid. It may apply
11
payments owed to you or sell deposited securities underlying
your ADSs to pay any taxes owed and you will remain liable for
any deficiency. If it sells deposited securities, it will, if
appropriate, reduce the number of ADSs to reflect the sale and
pay to you any proceeds, or send to you any property remaining
after it has paid the taxes.
Reclassifications,
Recapitalizations and Mergers
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If we:
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Then:
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Change the nominal or par value of our shares
Reclassify, split up or consolidate any of the deposited securities
Distribute securities on the shares that are not distributed to you
Recapitalize, reorganize, merge, liquidate, sell all or substantially all of our assets, or take any similar action
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The cash, shares or other securities received by the depositary will become deposited securities. Each ADS will automatically represent its equal share of the new deposited securities.
The depositary may, and will if we ask it to, distribute some or all of the cash, shares or other securities it received. It may also deliver new ADSs or ask you to surrender your outstanding ADRs in exchange for new ADRs identifying the new deposited securities.
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Amendment
and Termination
We may agree with The Bank of New York Mellon to amend the
deposit agreement and the ADRs without your consent for any
reason. If the amendment will cause any of the following
results, the amendment will become effective 30 days after
The Bank of New York Mellon notifies you of the amendment:
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adds or increases fees or charges, except for:
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taxes and other governmental charges;
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registration fees;
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cable, telex or facsimile transmission costs;
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delivery costs or other such expenses; or
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prejudices any important right of ADS holders.
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At the time an amendment becomes effective, you are considered,
by continuing to hold your ADSs, to agree to the amendment and
to be bound by the ADRs and the deposit agreement as amended.
The Bank of New York Mellon will terminate the deposit agreement
if we ask it to do so. In such case, The Bank of New York Mellon
must notify you at least 90 days before termination. The
Bank of New York Mellon may also terminate the deposit agreement
if The Bank of New York Mellon has told us that it would like to
resign and we have not appointed a new depositary bank within
90 days.
After termination, The Bank of New York Mellon and its agents
will be required to do only the following under the deposit
agreement:
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collect distributions on the deposited securities;
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sell rights and other property; and
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deliver shares and other deposited securities upon cancellation
of ADSs.
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One year after termination, The Bank of New York Mellon may sell
any remaining deposited securities by public or private sale.
After that, The Bank of New York Mellon will hold the proceeds
of the sale, as well as any other cash it is holding under the
deposit agreement for the pro rata benefit of the ADS holders
that have not surrendered their ADSs. It will not invest the
money and will have no liability for interest. The Bank of New
York
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Mellons only obligations will be an indemnification
obligation and an obligation to account for the proceeds of the
sale and other cash. After termination, our only obligations
will be an indemnification obligation and our obligation to pay
specified amounts to The Bank of New York Mellon.
Limitations
On Obligations and Liability to ADS Holders
The deposit agreement expressly limits our obligations and the
obligations of The Bank of New York Mellon, and it limits our
liability and the liability of The Bank of New York Mellon. We
and The Bank of New York Mellon:
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are only obligated to take the actions specifically provided for
in the deposit agreement without negligence or bad faith;
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are not liable if either is prevented or delayed by law or
circumstances beyond their control from performing our
obligations under the deposit agreement;
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are not liable if either exercises discretion permitted under
the deposit agreement;
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have no obligation to become involved in a lawsuit or other
proceeding related to the ADRs or the deposit agreement on your
behalf or on behalf of any other party; and
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may rely upon any documents they believe in good faith to be
genuine and to have been signed or presented by the proper party.
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In the deposit agreement, we and The Bank of New York Mellon
have agreed to indemnify each other under designated
circumstances.
Requirements
for Depositary Actions
The ADSs are transferable on the books of The Bank of New York
Mellon, provided that The Bank of New York Mellon may close
the transfer books at any time or from time to time when it
deems expedient in connection with the performance of its
duties. Before The Bank of New York Mellon will deliver or
register transfer of ADS, make a distribution on ADSs, or
process a withdrawal of shares, The Bank of New York Mellon may
require:
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payment of stock transfer or other taxes or other governmental
charges and transfer or registration fees charged by third
parties for the transfer of any shares or other deposited
securities;
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production of satisfactory proof of the identity and genuineness
of any signature or other information it deems
necessary; and
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compliance with regulations it may establish, from time to time,
consistent with the deposit agreement, including presentation of
transfer documents.
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The Bank of New York Mellon may refuse to deliver, transfer or
register transfers of ADSs generally when our books or the books
of The Bank of New York Mellon are closed, or at any time if The
Bank of New York Mellon or we think it advisable to do so.
Right to
Receive the Ordinary Shares Underlying the ADSs
You have the right to surrender your ADSs and withdraw the
underlying ordinary shares at any time except:
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when temporary delays arise because: (1) The Bank of New
York Mellon or we have closed its or our transfer books;
(2) the transfer of ordinary shares is blocked to permit
voting at a shareholders meeting or (3) we are paying
a dividend on the ordinary shares;
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when you or other ADS holders seeking to withdraw ordinary
shares owe money to pay fees, taxes and similar charges; or
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when it is necessary to prohibit withdrawals in order to comply
with any laws or governmental regulations that apply to ADSs or
to the withdrawal of ordinary shares or other deposited
securities.
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The right of withdrawal may not be limited by any other
provision of the deposit agreement.
Pre-Release
of ADSs
In compliance with the provisions of the deposit agreement, The
Bank of New York Mellon may deliver ADSs before deposit of the
underlying ordinary shares. This is called a pre-release of the
ADSs. The Bank of New York Mellon may also deliver ordinary
shares upon cancellation of pre-released ADSs, even if the ADSs
are cancelled before the pre-release transaction has been closed
out. A pre-release is closed out as soon as the underlying
ordinary shares are delivered to The Bank of New York Mellon.
The Bank of New York Mellon may receive ADSs instead of ordinary
shares to close out a pre-release. The Bank of New York Mellon
may pre-release ADSs only under the following conditions:
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before or at the time of the pre-release, the person to whom the
pre-release is being made must represent to The Bank of New York
Mellon in writing that it or its customer owns the ordinary
shares or ADSs to be deposited;
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the pre-release must be fully collateralized with cash or other
collateral that The Bank of New York Mellon considers
appropriate; and
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The Bank of New York Mellon must be able to close out the
pre-release on not more than five business days notice.
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In addition, The Bank of New York Mellon will limit the number
of ADSs that may be outstanding at any time as a result of
pre-release to 30.0% of the total shares deposited, although The
Bank of New York Mellon may disregard the limit from time to
time, if it thinks it is appropriate to do so.
ENFORCEABILITY
OF CIVIL LIABILITIES
We are incorporated in the Cayman Islands because of the
following benefits found there:
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political and economic stability;
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an effective judicial system;
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a favorable tax system;
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the absence of exchange control or currency
restrictions; and
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the availability of professional and support services.
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However, certain disadvantages accompany incorporation in the
Cayman Islands. These disadvantages include:
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the Cayman Islands has a less developed body of securities laws
as compared to the United States and these securities laws
provide significantly less protection to investors; and
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Cayman Islands companies may not have standing to sue before the
federal courts of the United States.
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Our constituent documents do not contain provisions requiring
that disputes, including those arising under the securities laws
of the United States, between us, our officers, directors and
shareholders, be arbitrated.
A substantial portion of our current operations is conducted in
China, and the majority of our assets are located in China. We
also conduct part of our operations in Taiwan and Hong Kong. We
have appointed CT Corporation System, 111 Eighth Avenue, New
York, NY 10011, as our agent upon whom process may be served in
any action brought against us under the securities laws of the
United States. A majority of our directors and officers are
nationals or residents of jurisdictions other than the United
States and a substantial portion of their assets are located
outside the United States. As a result, it may be difficult for
a shareholder to effect service of process within the United
States upon these persons, or to enforce against us or them
judgments obtained in United States courts, including judgments
predicated upon the civil liability provisions of the securities
laws of the United States or any state in the United States.
14
Maples and Calder, our counsel as to Cayman Islands law and
Commerce & Finance Law Offices, our counsel as to
Chinese law, have advised us, respectively, that there is
uncertainty as to whether the courts of the Cayman Islands and
China, respectively, would:
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recognize or enforce judgments of United States courts obtained
against us or our directors or officers predicated upon the
civil liability provisions of the securities laws of the United
States or any state in the United States; or
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entertain original actions brought in each respective
jurisdiction against us or our directors or officers predicated
upon the securities laws of the United States or any state in
the United States.
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Maples and Calder has further advised us that a final and
conclusive judgment in the federal or state courts of the United
States under which a sum of money is payable, other than a sum
payable in respect of taxes, fines, penalties or similar charges
which was neither obtained in a manner nor is of a kind, the
enforcement of which is contrary to natural justice or the
public policy of the Cayman Islands, may be subject to
enforcement proceedings as a debt in the courts of the Cayman
Islands under the common law doctrine of obligation without any
re-examination of the merits of the underlying disputes. The
Cayman Islands courts are unlikely to enforce a punitive
judgment of a United States court predicated upon the
liabilities provision of the federal securities law in the
United States without a retrial on the merits if such judgment
gives rise to obligations to make payments that may be regarded
as fines, penalties or similar charges.
Commerce & Finance Law Offices has advised us further
that the recognition and enforcement of foreign judgments are
provided for under Chinese Civil Procedures Law. Chinese courts
may recognize and enforce foreign judgments in accordance with
the requirements of Chinese Civil Procedures Law based either on
treaties between China and the country where the judgment is
made or on reciprocity between jurisdictions.
TAXATION
The following summary of the material Cayman Islands and
U.S. federal income tax consequences of an investment in
our ADSs or ordinary shares is based upon laws and relevant
interpretations thereof in effect as of the date of this
prospectus, all of which are subject to change. This summary
does not deal with all possible tax consequences relating to an
investment in our ADSs or ordinary shares, such as the tax
consequences under state, local and other tax laws. To the
extent that the discussion relates to matters of Cayman Islands
tax law, it represents the opinion of Maples and Calder, our
Cayman Islands counsel.
Cayman
Islands Taxation
The Cayman Islands currently levies no taxes on individuals or
corporations based upon profits, income, gains or appreciation
and there is no taxation in the nature of inheritance tax or
estate duty. There are no other taxes likely to be material to
us levied by the government of the Cayman Islands except for
stamp duties which may be applicable on instruments executed in,
or brought within the jurisdiction of the Cayman Islands. The
Cayman Islands is not party to any double tax treaties. There
are no exchange control regulations or currency restrictions in
the Cayman Islands.
PRC
Taxation
If the PRC tax authorities determine that our Cayman Islands
holding company is a resident enterprise for PRC
enterprise income tax purposes, a withholding tax of 10% for our
foreign ADS holders may be imposed on dividends they receive
from us and on gains realized on their sale or other disposition
of ADSs. See Risk Factors Risks Related to Our
Corporate Structure Our subsidiaries and affiliated
Chinese entities in China are subject to restrictions on paying
dividends or making other payments to us, which may restrict our
ability to satisfy our liquidity requirements included in
our annual report on
Form 20-F
for the fiscal year ended December 31, 2009, which is
incorporated by reference in this prospectus.
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Certain
U.S. Federal Income Tax Consequences
The following description generally summarizes certain
U.S. federal income tax consequences generally applicable
to U.S. Holders (as defined below) under present law of
ownership in and disposition of the ADSs or ordinary shares.
This description is based on the U.S. Treasury regulations
issued under the Internal Revenue Code of 1986, as amended, as
well as judicial and administrative interpretations available on
the date hereof, all of which are subject to change, possibly
with retroactive effect. You should note that no rulings have
been or are expected to be sought from the U.S. Internal
Revenue Service, or the IRS, with respect to any
U.S. federal income tax consequences described below, and
we cannot assure you that the IRS or a court will not taken
contrary positions.
The following discussion does not address all U.S. federal
income tax consequences applicable to any particular investor or
to certain investors who may be subject to special terms
(regardless of whether or not such persons constitute
U.S. Holders as defined below) such as banks, insurance
companies, broker dealers, dealers or traders in securities or
commodities, tax-exempt entities, persons liable for alternative
minimum tax, U.S. expatriates, regulated investment
companies or real estate investment trusts, partnerships
(including certain entities treated as partnerships for
U.S. federal income tax purposes) or persons holding ADSs
or ordinary shares through partnerships (including entities
treated as partnerships for U.S. federal income tax
purposes), S-corporations, estates and trusts, persons holding
an ADS or ordinary share as part of a straddle, hedging,
conversion or integrated transaction, investors whose
functional currency is not the U.S. dollars,
holders that actually or constructively own 10% or more (by
voting power or value) of all classes of our outstanding capital
stock, or persons who acquired ADSs or ordinary shares pursuant
to the exercise of any employee share option or otherwise as
compensation. Please note this description does not address
(i) alternative minimum tax consequence or (ii) the
indirect effects on persons who hold equity interests as a
holder.
PROSPECTIVE PURCHASERS ARE URGED TO CONSULT THEIR TAX
ADVISORS REGARDING THE APPLICATION OF THE U.S. FEDERAL TAX
RULES TO THEIR PARTICULAR CIRCUMSTANCES AS WELL AS THE
STATE AND LOCAL AND FOREIGN TAX CONSEQUENCES TO THEM OF THE
PURCHASE, OWNERSHIP AND DISPOSITION OF ADSs OR ORDINARY
SHARES.
As used in this section, U.S. Holder means a
beneficial owner of ADSs or ordinary shares that for
U.S. federal income tax purposes is,
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an individual who is a citizen or resident of the United States;
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a corporation (or other entity subject to tax as a corporation
for U.S. federal income tax purposes) organized under the
laws of the United States, any state or the District of Columbia;
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an estate, the income of which is subject to U.S. federal
income taxation regardless of its source; or
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a trust that (1) is subject to the primary supervision of a
court within the United States and the control of one or more
U.S. persons for all substantial trust decisions or
(2) has a valid election in effect under applicable
U.S. Treasury regulations to be treated as a
U.S. person.
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If you are a partner in a partnership or other entity taxable as
a partnership that holds ADSs or ordinary shares, your tax
treatment will generally depend on your status and the
activities of the partnership. Partnerships holding the ADSs or
ordinary shares, and partners in such partnerships, should
consult their tax advisors regarding the tax consequences of an
investment in the ADSs or ordinary shares.
The discussion below assumes that the representations contained
in the deposit agreement are true and that the obligations in
the deposit agreement and any related agreement have been and
will be complied with in accordance with the terms. If you hold
ADSs, you should be treated as the holder of the underlying
ordinary shares represented by those ADSs for U.S. federal
income tax purposes.
Taxation
of Dividends and Other Distributions on the ADSs or Ordinary
Shares
Subject to the description below under Passive
Foreign Investment Company, the amount of any distribution
to you with respect to the ADSs or ordinary shares, before
deduction for any taxes imposed by the PRC, will be included in
your gross income as dividend income on the date of receipt by
the depositary, in the case
16
of ADSs, or by you, in the case of ordinary shares, but only to
the extent that the distribution is paid out of our current or
accumulated earnings and profits (as determined under
U.S. federal income tax principles). To the extent that the
amount of the distribution exceeds our current and accumulated
earnings and profits, such excess amount will be treated first
as a tax-free return of your tax basis in your ADSs or ordinary
shares, and then, to the extent such excess amount exceeds your
tax basis, as capital gain. We do not intend to calculate our
earnings and profits under U.S. federal income tax
principles. Therefore, a U.S. Holder should expect that a
distribution will generally be reported as a dividend even if
that distribution would otherwise be treated as a non-taxable
return of capital or as capital gain under the rules described
above. Any dividends we pay will not be eligible for the
dividends-received deduction allowed to corporations in respect
of dividends received from other U.S. corporations.
With respect to non-corporate U.S. Holders (including
individual U.S. Holders), for taxable years beginning
before January 1, 2011, dividends may be taxed at the lower
capital gains rate applicable to qualified dividend
income, provided that (1) the ADSs or ordinary shares
are readily tradable on an established securities market in the
United States or we are eligible for the benefits of an income
tax treaty with the United States that the U.S. Treasury
has determined satisfactory for purposes of the rules applicable
to qualified dividends and that includes an exchange of
information program, (2) we are neither a passive foreign
investment company, or PFIC, nor treated as such with respect to
you (as discussed below) for our taxable year in which the
dividend was paid or the preceding taxable year, and
(3) certain holding period requirements are met.
U.S. Treasury guidance indicates that common or ordinary
shares, or ADSs representing such shares, are considered for the
purpose of clause (1) above to be readily tradable on an
established securities market in the United States if they are
listed on the Nasdaq Global Select Market, as are our ADSs (but
not our ordinary shares). If we are treated as a resident
enterprise for PRC tax purposes under its Enterprise
Income Tax Law, or EIT Law, we may be eligible for the benefits
of the income tax treaty between the United States and the PRC.
You should consult your tax advisors regarding the availability
of the lower capital gains rate applicable to qualified dividend
income for dividends paid with respect to our ADSs or ordinary
shares and any possible change in law relating to the
availability of such lower rate for dividends paid by us.
Dividends will constitute foreign source income for foreign tax
credit limitation purposes. If the dividends are qualified
dividend income (as discussed above), the amount of the dividend
taken into account for purposes of calculating the foreign tax
credit limitation will in general be limited to the gross amount
of the dividend, multiplied by the reduced tax rate applicable
to qualified dividend income and divided by the highest tax rate
normally applicable to dividends. The limitation on foreign
taxes eligible for credit is calculated separately with respect
to specific classes of income. For this purpose, dividends
distributed by us with respect to the ADSs or ordinary shares
will be passive category income or, in the case of
certain U.S. Holders, general category income.
If PRC withholding taxes apply to dividends paid to you with
respect to our ADSs or ordinary shares, subject to certain
conditions and limitations, such PRC withholding taxes may be
treated as foreign taxes eligible for credit against your
U.S. federal income tax liability. The rules relating to
the determination of the foreign tax credit are complex and you
should consult your tax advisors regarding the availability of a
foreign tax credit in your particular circumstances.
Taxation
of a Disposition of ADSs or Ordinary Shares
Subject to description below under Passive
Foreign Investment Company, you will recognize capital
gain or loss on any sale, exchange or other taxable disposition
of an ADS or ordinary share equal to the difference between the
amount realized for the ADS or ordinary share and your tax basis
in the ADS or ordinary share. Your tax basis in an ADS or
ordinary share will generally be equal to the cost of such ADS
or ordinary share. The gain or loss will generally be capital
gain or loss. If you are a non-corporate U.S. Holder,
including an individual U.S. Holder, who has held the ADS
or ordinary share for more than one year, you generally will be
eligible for reduced tax rates. The deductibility of capital
losses is subject to limitations. Any such gain or loss that you
recognize will generally be treated as U.S. source income
or loss for foreign tax credit limitation purposes, which will
generally limit the availability of foreign tax credits.
However, if we are treated as a resident enterprise
for PRC tax purposes, we may be eligible for the benefits of the
income tax treaty between the United States and the PRC. In such
event, if PRC tax were to be imposed on any gain from the
disposition of the ADSs or ordinary shares, a U.S. Holder
that is eligible for the benefits of the income tax treaty
between the United States and the PRC may elect to treat the
gain as
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PRC source income. You should consult your tax advisors
regarding the proper treatment of gain or loss recognized on a
sale, exchange or other taxable disposition of the ADSs or
ordinary shares in your particular circumstances.
Passive
Foreign Investment Company
Based on the market price of our ADSs, the value of our assets,
and the composition of our assets and income, we do not believe
that we were a PFIC for U.S. federal income tax purposes
for the taxable year ended December 31, 2009. A
non-U.S. corporation
will be a PFIC for any taxable year if either:
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at least 75% of its gross income is passive income; or
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at least 50% of the value of its assets (based on an average of
the quarterly values of the assets) during such year is
attributable to assets that produce passive income or are held
for the production of passive income (the asset
test).
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We will be treated as owning our proportionate share of the
assets and earning our proportionate share of the income of any
other corporation in which we own, directly or indirectly, at
least 25% (by value) of the stock. In applying this rule,
however, it is not clear whether the contractual arrangements
between us and our affiliated Chinese entities will be treated
as ownership of stock.
We must make a separate determination after the close of each
year as to whether we were a PFIC for that year. Accordingly, we
cannot assure you that we will not be a PFIC for our current
taxable year ending December 31, 2010 or any future taxable
year. Because the value of our assets for purposes of the asset
test will generally be determined by reference to the market
price of our ADSs and ordinary shares, fluctuations in the
market price of our ADSs or ordinary shares may cause us to
become a PFIC. If we are a PFIC for any year during which you
hold ADSs or ordinary shares, we will generally continue to be
treated as a PFIC with respect to you for all succeeding years
during which you hold ADSs or ordinary shares, unless we cease
to be a PFIC and you make a deemed sale election with respect to
the ADSs or ordinary shares, as applicable. If such election is
made, you will be deemed to have sold the ADSs or ordinary
shares you hold at their fair market value and any gain from
such deemed sale would be subject to the consequences described
below. After the deemed sale election, your ADSs or ordinary
shares with respect to which such election was made will not be
treated as shares in a PFIC unless we subsequently become a PFIC.
For each taxable year that we are treated as a PFIC with respect
to you, you will be subject to special tax rules with respect to
any excess distribution that you receive and any
gain you realize from a sale or other disposition (including a
pledge) of the ADSs or ordinary shares, unless you make a
mark-to-market
election as discussed below. Under these special tax rules:
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the excess distribution or gain will be allocated ratably over
your holding period for the ADSs or ordinary shares;
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the amount allocated to the current taxable year, and any
taxable years in your holding period prior to the first taxable
year in which we became a PFIC, will be treated as ordinary
income; and
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the amount allocated to each other year will be subject to the
highest tax rate in effect for individuals or corporations, as
applicable, for each such year and the interest charge generally
applicable to underpayments of tax will be imposed on the
resulting tax attributable to each such year.
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A U.S. Holder of marketable stock (as defined
below) in a PFIC may make a
mark-to-market
election for such stock to elect out of the tax treatment
discussed in the preceding paragraph. If you make a valid
mark-to-market
election for our ADSs or ordinary shares, you will include in
income for each year that we are treated as a PFIC with respect
to you an amount equal to the excess, if any, of the fair market
value of the ADSs or ordinary shares you hold as of the close of
the year over your adjusted basis in such ADSs or ordinary
shares. You will be allowed a deduction for the excess, if any,
of the adjusted basis of the ADSs or ordinary shares over their
fair market value as of the close of the year. However,
deductions will be allowable only to the extent of any net
mark-to-market
gains on the ADSs or ordinary shares included in your income for
prior taxable years. Amounts included in your income under a
mark-to-market
election, as well as any gain on the actual sale or other
disposition of the ADSs or ordinary shares, will be treated as
ordinary income. The
mark-to-market
election is available only for marketable stock,
which is
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stock that is traded in other than
de minimis
quantities
on at least 15 days during each calendar quarter
(regularly traded) on a qualified exchange or other
market, as defined in applicable U.S. Treasury regulations.
Our ADSs are listed on the Nasdaq Global Select Market, which is
a qualified exchange or other market for these purposes.
Consequently, if the ADSs continue to be listed on the Nasdaq
Global Select Market and are regularly traded, and you are a
holder of ADSs, we expect that the
mark-to-market
election would be available to you were we to be or become a
PFIC. You should consult your tax advisors as to the
availability and desirability of a
mark-to-market
election.
Alternatively, if a
non-U.S. corporation
is a PFIC, a U.S. holder of shares in that corporation may
avoid taxation under the rules described above by making a
qualified electing fund election to include in
income its share of the corporations income on a current
basis. However, you can make a qualified electing fund election
with respect to your ADSs or ordinary shares only if we agree to
furnish you annually with certain tax information, and we
currently do not intend to prepare or provide such information.
Therefore, U.S. Holders should assume that they will not
receive such information from us and would not be able to make a
qualified electing fund election.
You are urged to consult your tax advisor regarding the
application of the PFIC rules to your investment in ADSs or
ordinary shares.
Information
Reporting and Backup Withholding
Dividend payments with respect to ADSs or ordinary shares and
proceeds from the sale, exchange or redemption of ADSs or
ordinary shares may be subject to information reporting to the
Internal Revenue Service and possible U.S. backup
withholding at a current rate of 28%. Backup withholding will
not apply, however, to a U.S. Holder that furnishes a
correct taxpayer identification number and makes any other
required certification or that is otherwise exempt from backup
withholding. U.S. Holders that are required to establish
their exempt status generally must provide such certification on
Internal Revenue Service
Form W-9.
U.S. Holders should consult their tax advisors regarding
the application of the U.S. information reporting and
backup withholding rules.
Backup withholding is not an additional tax. Amounts withheld as
backup withholding can be credited against your
U.S. federal income tax liability, and you may obtain a
refund of any excess amounts withheld under the backup
withholding rules by timely filing the appropriate claim for
refund with the Internal Revenue Service and furnishing any
required information in a timely manner.
PLAN OF
DISTRIBUTION
We or any selling shareholder may sell our ordinary shares,
represented by ADSs, from time to time, in one or more
offerings, as follows:
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through agents;
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to dealers or underwriters for resale;
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directly to purchasers; or
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through a combination of any of these methods of sale.
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In addition, we may issue the securities as a dividend or
distribution or in a subscription rights offering to our
existing security holders. In some cases, we or dealers acting
for us or on our behalf may also repurchase securities and
reoffer them to the public by one or more of the methods
described above. This prospectus may be used in connection with
any offering of our securities through any of these methods or
other methods described in the applicable prospectus supplement.
Our securities distributed by any of these methods may be sold
to the public, in one or more transactions, either:
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at a fixed price or prices, which may be changed;
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at market prices prevailing at the time of sale;
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at prices related to prevailing market prices; or
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at negotiated prices.
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We may solicit offers to purchase the securities directly from
the public from time to time. We may also designate agents from
time to time to solicit offers to purchase securities from the
public on our or their behalf. The prospectus supplement
relating to any particular offering of securities will name any
agents designated to solicit offers, and will include
information about any commissions we may pay the agents, in that
offering. Agents may be deemed to be underwriters as
that term is defined in the Securities Act.
From time to time, we may sell securities to one or more dealers
as principals. The dealers, who may be deemed to be
underwriters as that term is defined in the
Securities Act, may then resell those securities to the public.
We may sell securities from time to time to one or more
underwriters, who would purchase the securities as principal for
resale to the public, either on a firm-commitment or
best-efforts basis. If we sell securities to underwriters, we
will execute an underwriting agreement with them at the time of
sale and will name them in the applicable prospectus supplement.
In connection with those sales, underwriters may be deemed to
have received compensation from us in the form of underwriting
discounts or commissions and may also receive commissions from
purchasers of the securities for whom they may act as agents.
Underwriters may resell the securities to or through dealers,
and those dealers may receive compensation in the form of
discounts, concessions or commissions from the underwriters
and/or
commissions from purchasers for whom they may act as agents. The
applicable prospectus supplement will include information about
any underwriting compensation we pay to underwriters, and any
discounts, concessions or commissions underwriters allow to
participating dealers, in connection with an offering of
securities.
Underwriters, dealers, agents and other persons may be entitled,
under agreements that they may enter into with us, to
indemnification by us against civil liabilities, including
liabilities under the Securities Act, or to contribution with
respect to payments which they may be required to make.
In connection with an offering, the underwriters, including any
affiliate of ours that is acting as an underwriter or
prospective underwriter, may engage in transactions that
stabilize, maintain or otherwise affect the price of the
securities offered. These transactions may include overalloting
the offering, creating a syndicate short position, and engaging
in stabilizing transactions and purchases to cover positions
created by short sales. Overallotment involves sales of the
securities in excess of the principal amount or number of the
securities to be purchased by the underwriters in the applicable
offering, which creates a short position for the underwriters.
Short sales involve the sale by the underwriters of a greater
number of securities than they are required to purchase in an
offering. Stabilizing transactions consist of certain bids or
purchases made for the purpose of preventing or retarding a
decline in the market price of the securities in connection with
an offering.
The underwriters may also impose a penalty bid. This occurs when
a particular underwriter repays to the underwriters a portion of
the underwriting discount it received because the underwriters
have repurchased securities sold by or for the account of that
underwriter in stabilizing or short-covering transactions.
As a result, the price of the securities may be higher than the
price that otherwise might exist in the open market. If these
activities are commenced, they may be discontinued by the
underwriters at any time. These transactions may be effected on
an exchange or automated quotation system, if the securities are
listed on that exchange or admitted for trading on that
automated quotation system, or in the
over-the-counter
market or otherwise.
The underwriters, dealers and agents, as well as their
associates, may be customers of or lenders to, and may engage in
transactions with and perform services for, Ctrip and its
subsidiaries.
In addition, we expect to offer securities to or through our
affiliates, as underwriters, dealers or agents. Our affiliates
may also offer the securities in other markets through one or
more selling agents, including one another.
If so indicated in an applicable prospectus supplement, we will
authorize dealers or other persons acting as our agent to
solicit offers by some institutions to purchase securities from
us pursuant to contracts providing for
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payment and delivery on a future date. Institutions with which
these contracts may be made include commercial and savings
banks, insurance companies, pension funds, investment companies,
educational and charitable institutions and others.
Unless otherwise indicated in an applicable prospectus
supplement or confirmation of sale, the purchase price of the
securities will be required to be paid in immediately available
funds in New York City.
LEGAL
MATTERS
We are being represented by Skadden, Arps, Slate,
Meagher & Flom LLP with respect to legal matters of
United States federal securities and New York State law. Certain
legal matters in connection with this offering will be passed
upon for the underwriters by a law firm named in the applicable
prospectus supplement. The validity of the ordinary shares
represented by the ADSs offered in this offering and legal
matters as to Cayman Islands law will be passed upon for us by
Maples and Calder. Legal matters as to PRC law will be passed
upon for us by Commerce & Finance Law Offices and for
the underwriters by a law firm named in the applicable
prospectus supplement. Skadden, Arps, Slate, Meagher &
Flom LLP may rely upon Maples and Calder with respect to matters
governed by Cayman Islands law and Commerce & Finance
Law Offices with respect to matters governed by PRC law.
EXPERTS
The consolidated financial statements and managements
assessment of the effectiveness of internal control over
financial reporting (which is included in Managements
Report on Internal Control over Financial Reporting)
incorporated in this prospectus by reference to the annual
report on
Form 20-F
for the year ended December 31, 2009 have been so
incorporated in reliance on the report of PricewaterhouseCoopers
Zhong Tian CPAs Limited Company, an independent registered
public accounting firm, given on the authority of said firm as
experts in auditing and accounting.
The offices of PricewaterhouseCoopers Zhong Tian CPAs Limited
Company are located at
11
th
Floor, PricewaterhouseCoopers Centre, 202 Hu Bin Road, Shanghai
200021, Peoples Republic of China.
WHERE YOU
CAN FIND MORE INFORMATION ABOUT US
We will furnish to you, through the depositary, English language
versions of any reports, notices and other communications that
we generally transmit to holders of our ordinary shares.
We are subject to the reporting requirements of the Securities
Exchange Act of 1934, as amended, or the Exchange Act, and, in
accordance with the Exchange Act, we file annual reports and
other information with the SEC. You may read and copy any of
this information in the SECs Public Reference Room,
100 F Street, NE Washington, D.C. 20549. You may
also obtain copies of this information by mail from the Public
Reference Section of the SEC, 100 F Street, NE
Washington, D.C. 20549, at prescribed rates. You can obtain
information on the operation of the SECs Public Reference
Room in Washington, D.C. by calling the SEC at
1-800-SEC-0330.
The SEC also maintains an Internet website that contains
reports, proxy and information statements, and other information
about issuers, like us, that file electronically with the SEC.
The address of that website is
http://www.sec.gov.
INCORPORATION
OF DOCUMENTS BY REFERENCE
The SEC allows us to incorporate by reference the
information we file with them. This means that we can disclose
important information to you by referring you to those
documents. Each document incorporated by reference is current
only as of the date of such document, and the incorporation by
reference of such documents shall not create any implication
that there has been no change in our affairs since the date
thereof or that the information contained therein is current as
of any time subsequent to its date. The information incorporated
by reference is considered to be a part of this prospectus and
should be read with the same care. When we update the
information contained in documents that have been incorporated
by reference by making future filings with the
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SEC, the information incorporated by reference in this
prospectus is considered to be automatically updated and
superseded. In other words, in the case of a conflict or
inconsistency between information contained in this prospectus
and information incorporated by reference into this prospectus,
you should rely on the information contained in the document
that was filed later.
We incorporate by reference the documents listed below:
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Our annual report on
Form 20-F
for the fiscal year ended December 31, 2009 filed on
February 3, 2010;
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The description of the securities contained in our registration
statement on
Form 8-A
filed on November 25, 2003 pursuant to Section 12 of the
Exchange Act, together with all amendments and reports filed for
the purpose of updating that description; and
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With respect to each offering of securities under this
prospectus, all reports on
Form 20-F
and any report on
Form 6-K
that so indicates it is being incorporated by reference, in each
case, that we file with the SEC on or after the date on which
the registration statement is first filed with the SEC and until
the termination or completion of that offering under this
prospectus.
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Our annual report on
Form 20-F
for the fiscal year ended December 31, 2009 filed on
February 3, 2010, contains a description of our business
and audited consolidated financial statements with a report by
an independent registered public accounting firm. These
financial statements are prepared in accordance with
U.S. GAAP.
Copies of all documents incorporated by reference in this
prospectus, other than exhibits to those documents unless such
exhibits are specially incorporated by reference in this
prospectus, will be provided at no cost to each person,
including any beneficial owner, who receives a copy of this
prospectus on the written or oral request of that person made to:
Ctrip.com International, Ltd.
99 Fu Quan Road
Shanghai 200335, Peoples Republic of China
Tel: (86
21) 3406-4880
Attention: Investor Relationship Manager
You should rely only on the information that we incorporate by
reference or provide in this prospectus. We have not authorized
anyone to provide you with different information. We are not
making any offer of these securities in any jurisdiction where
the offer is not permitted. You should not assume that the
information in this prospectus is accurate as of any date other
than the date on the front of those documents.
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PART II
INFORMATION
NOT REQUIRED IN PROSPECTUS
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ITEM 8.
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INDEMNIFICATION
OF DIRECTORS AND OFFICERS
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Cayman Islands law does not limit the extent to which a
companys articles of association may provide for
indemnification of officers and directors, except to the extent
any such provision may be held by the Cayman Islands courts to
be contrary to public policy, such as to provide indemnification
against civil fraud or the consequences of committing a crime.
Our articles of association provide for indemnification of
officers and directors for losses, damages, costs and expenses
incurred in their capacities as such, except through their own
willful neglect or default.
The underwriting agreement between us and the underwriters, a
form of which will be filed as Exhibit 1.1 to this
registration statement, provides for indemnification and
contribution by the underwriters with respect to certain
liabilities of our directors, officers and other controlling
persons.
Pursuant to the indemnification agreements between us and our
directors and officers, the form of which was filed as
Exhibit 10.2 to our registration statement on
Form F-1
(file
no. 333-110455)
that was filed with the SEC on November 12, 2003, we agreed
to indemnify our directors and officers against certain
liabilities and expenses incurred by such persons in connection
with claims made by reason of their being such a director or
officer.
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Exhibit
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Number
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Description of Document
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1
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.1
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Form of Underwriting Agreement.
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3
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.1
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Amended and Restated Memorandum and Articles of Association of
the Registrant (incorporated by reference to Exhibit 3.2 from
our Registration Statement on Form F-1 (file no. 333-110455)
originally filed with the SEC on November 25, 2003).
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3
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.2
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Amendment to the Amended and Restated Memorandum and Articles of
Association of the Registrant (incorporated by reference to
Exhibit 99.2 to our Report of Foreign Private Issuer on Form 6-K
filed with the SEC on October 17, 2006).
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4
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.1
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Specimen American Depositary Receipt of Ctrip.com International,
Ltd. (incorporated by reference to the prospectus dated January
25, 2010 as part of the Registration Statement on Form F-6 (file
no.333-145167) filed with the Securities and Exchange Commission
of August 6, 2007).
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4
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.2
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Specimen Stock Certificate of Ctrip.com International, Ltd.
(incorporated by reference to Exhibit 4.2 from our Registration
Statement on Form F-1 (file no. 333-110455) originally filed
with the SEC on November 13, 2003).
|
|
4
|
.3
|
|
Amended and Restated Deposit Agreement among the Registrant, The
Bank of New York Mellon and the Owners and Beneficial Owners of
the American Depositary Shares (incorporated by reference to
Exhibit 2.4 from our Annual Report on Form 20-F (file
no.001-33853) filed with Securities and Exchange Commission on
April 29, 2008).
|
|
5
|
.1
|
|
Opinion of Maples and Calder regarding the validity of the
ordinary shares.
|
|
8
|
.1
|
|
Opinion of Skadden, Arps, Slate, Meagher & Flom LLP
regarding certain U.S. tax matters.
|
|
8
|
.2
|
|
Opinion of Commerce & Finance Law Offices regarding certain
PRC tax matters.
|
|
10
|
.1
|
|
Sale and Purchase Agreement dated February 3, 2010 among Wing On
Travel (Holdings) Limited, C-Travel International Limited and
Ctrip.com International, Ltd.
|
|
23
|
.1
|
|
Consent of PricewaterhouseCoopers Zhong Tian CPAs Limited
Company.
|
|
23
|
.2
|
|
Consent of Maples and Calder (included in Exhibit 5.1).
|
|
23
|
.3
|
|
Consent of Skadden, Arps, Slate, Meagher & Flom LLP
(included in Exhibit 8.1).
|
|
23
|
.4
|
|
Consent of Commerce & Finance Law Offices.
|
|
24
|
.1
|
|
Powers of Attorney (included as part of signature page).
|
II-1
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration
statement;
(i) To include any prospectus required by
Section 10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the registration statement
(or the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental change
in the information set forth in the registration statement.
Notwithstanding the foregoing, any increase or any decrease in
volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered)
and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of
prospectus filed with the SEC pursuant to Rule 424(b) if,
in the aggregate, the changes in volume and price represent no
more than a 20% change in the maximum aggregate offering price
set forth in the Calculation of Registration Fee
table in the effective registration statement; and
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in the
registration statement or any material change to such
information in the registration statement;
provided, however, that paragraphs (a)(1)(i), (a)(1)(ii) and
(a)(1)(iii) of this section do not apply if the registration
statement is on
Form F-3
and the information required to be included in a post-effective
amendment by those paragraphs is contained in reports filed with
or furnished to the SEC by the Registrant pursuant to
Section 13 or Section 15(d) of the Exchange Act that
are incorporated by reference in the registration statement, or
is contained in a form of prospectus filed pursuant to
Rule 424(b) that is part of the registration statement.
(2) That, for the purpose of determining any liability
under the Securities Act of 1933, each such post-effective
amendment shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of
such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(3) To remove from registration by means of a
post-effective amendment any of the securities being registered
which remain unsold at the termination of the offering.
(4) To file a post-effective amendment to the registration
statement to include any financial statements required by
Item 8.A of
Form 20-F
at the start of any delayed offering or throughout a continuous
offering. Financial statements and information otherwise
required by Section 10(a)(3) of the Act need not be
furnished, provided that the Registrant includes in the
prospectus, by means of a post-effective amendment, financial
statements required pursuant to this paragraph (a)(4) and other
information necessary to ensure that all other information in
the prospectus is at least as current as the date of those
financial statements. Notwithstanding the foregoing, with
respect to registration statements on
Form F-3,
a post-effective amendment need not be filed to include
financial statements and information required by
Section 10(a)(3) of the Act or
Rule 3-19
of
Regulation S-K
if such financial statements and information are contained in
periodic reports filed with or furnished to the SEC by the
Registrant pursuant to Section 13 or Section 15(d) of
the Securities Act of 1934 that are incorporated by reference in
this
Form F-3.
(5) That, for the purpose of determining liability under
the Securities Act of 1933 to any purchaser:
(i) Each prospectus filed by the Registrant pursuant to
Rule 424(b)(3) shall be deemed to be part of the registration
statement as of the date the filed prospectus was deemed part of
and included in the registration statement; and
(ii) Each prospectus required to be filed pursuant to Rule
424(b)(2), (b)(5) or (b)(7) as part of a registration statement
in reliance on Rule 430B relating to an offering made
pursuant to Rule 415(a)(1)(i), (vii) or (x) for the
purpose of providing the information required by
section 10(a) of the Securities Act of
II-2
1933 shall be deemed to be part of and included in the
registration statement as of the earlier of the date such form
of prospectus is first used after effectiveness or the date of
the first contract of sale of 314 securities in the offering
described in the prospectus. As provided in Rule 430B, for
liability purposes of the issuer and any person that is at that
date an underwriter, such date shall be deemed to be a new
effective date of the registration statement relating to the
securities in the registration statement to which that
prospectus relates, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering
thereof. Provided, however, that no statement made in a
registration statement or prospectus that is part of the
registration statement or made in a document incorporated or
deemed incorporated by reference into the registration statement
or prospectus that is part of the registration statement will,
as to a purchaser with a time of contract of sale prior to such
effective date, supersede or modify any statement that was made
in the registration statement or prospectus that was part of the
registration statement or made in any such document immediately
prior to such effective date.
(6) That, for the purpose of determining liability of the
Registrant under the Securities Act of 1933 to any purchaser in
the initial distribution of the securities:
The undersigned Registrant undertakes that in a primary offering
of securities of the undersigned Registrant pursuant to this
registration statement, regardless of the underwriting method
used to sell the securities to the purchaser, if the securities
are offered or sold to such purchaser by means of any of the
following communications, the undersigned Registrant will be a
seller to the purchaser and will be considered to offer or sell
such securities to such purchaser:
(i) Any preliminary prospectus or prospectus of the
undersigned Registrant relating to the offering required to be
filed pursuant to Rule 424;
(ii) Any free writing prospectus relating to the offering
prepared by or on behalf of the undersigned Registrant or used
or referred to by the undersigned Registrant;
(iii) The portion of any other free writing prospectus
relating to the offering containing material information about
the undersigned Registrant or its securities provided by or on
behalf of the undersigned Registrant; and
(iv) Any other communication that is an offer in the
offering made by the undersigned Registrant to the purchaser.
(b) The undersigned Registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act
of 1933, each filing of the Registrants annual report
pursuant to Section 13(a) or Section 15(d) of the
Exchange Act that is incorporated by reference in the
registration statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising
under the Securities Act of 1933 may be permitted to
directors, officers and controlling persons of the Registrant
pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is
against public policy as expressed in the Securities Act of 1933
and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment
by the Registrant of expenses incurred or paid by a director,
officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is
asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant
will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in
the Securities Act of 1933, as amended, and will be governed by
the final adjudication of such issue.
II-3
SIGNATURES
Pursuant to the requirements of the Securities Act, the
registrant certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing on
Form F-3
and has duly caused this registration statement to be signed on
its behalf by the undersigned, thereunto duly authorized, in
Shanghai, Peoples Republic of China, on March 2, 2010.
CTRIP.COM INTERNATIONAL, LTD.
Name: Min Fan
|
|
|
|
Title:
|
President, Chief Executive Officer and Director
|
POWER OF
ATTORNEY
Each person whose signature appears below constitutes and
appoints each of Min Fan and Jane Jie Sun as his or her true and
lawful attorney-in-fact and agent, with full power of
substitution and resubstitution, for him or her and in his or
her name, place and stead, in any and all capacities, to sign
any or all amendments (including post-effective amendments) to
this registration statement and any and all related registration
statements pursuant to Rule 462(b) of the Securities Act,
and to file the same, with all exhibits thereto, and other
documents in connection therewith, with the SEC, hereby
ratifying and confirming all that said attorney-in-fact and
agent, or its substitute or substitutes, may lawfully do or
cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this
registration statement has been signed by the following persons
in the capacities set forth below on March 2, 2010.
|
|
|
|
|
Signature
|
|
Title
|
|
|
|
|
/s/ Min
Fan
Name:
Min Fan
|
|
President, Chief Executive Officer and Director
(principal executive officer)
|
|
|
|
/s/ Jane
Jie Sun
Name:
Jane Jie Sun
|
|
Chief Financial Officer
(principal financial and accounting officer)
|
|
|
|
/s/ James
Jianzhang Liang
Name:
James Jianzhang Liang
|
|
Chairman of the Board
|
|
|
|
/s/ Gabriel
Li
Name:
Gabriel Li
|
|
Deputy Chairman of the Board
|
|
|
|
/s/ Neil
Nanpeng Shen
Name:
Neil Nanpeng Shen
|
|
Director
|
|
|
|
/s/ Qi
Ji
Name:
Qi Ji
|
|
Director
|
|
|
|
/s/ JP
Gan
Name:
JP Gan
|
|
Director
|
|
|
|
/s/ Suyang
Zhang
Name:
Suyang Zhang
|
|
Director
|
II-4
SIGNATURE
OF AUTHORIZED REPRESENTATIVE OF THE REGISTRANT
Under the Securities Act, the undersigned, the duly authorized
representative in the United States of Ctrip.com International,
Ltd., has signed this registration statement in Newark,
Delaware, on March 2, 2010.
Authorized U.S. Representative
|
|
|
|
By:
|
/s/ Donald
J. Puglisi
|
Name: Donald J. Puglisi
|
|
|
|
Title:
|
Managing Director,
|
Puglisi & Associates
II-5
INDEX TO
EXHIBITS
|
|
|
|
|
Exhibit
|
|
|
Number
|
|
Description of Document
|
|
|
1
|
.1*
|
|
Form of Underwriting Agreement.
|
|
3
|
.1
|
|
Amended and Restated Memorandum and Articles of Association of
the Registrant (incorporated by reference to Exhibit 3.2 from
our Registration Statement on Form F-1 (file no. 333-110455)
originally filed with the SEC on November 25, 2003).
|
|
3
|
.2
|
|
Amendment to the Amended and Restated Memorandum and Articles of
Association of the Registrant (incorporated by reference to
Exhibit 99.2 from our Report of Foreign Private Issuer on Form
6-K filed with the SEC on October 17, 2006).
|
|
4
|
.1
|
|
Specimen American Depositary Receipt of Ctrip.com International,
Ltd. (incorporated by reference to the prospectus dated January
25, 2010 as part of the Registration Statement on Form F-6 (file
no.333-145167) filled with the Securities and Exchange
Commission on August 6, 2007).
|
|
4
|
.2
|
|
Specimen Stock Certificate of Ctrip.com International, Ltd.
(incorporated by reference to Exhibit 4.2 from our Registration
Statement on Form F-1 (file no. 333-110455) originally filed
with the SEC on November 13, 2003).
|
|
4
|
.3
|
|
Amended and Restated Deposit Agreement among the Registrant, The
Bank of New York Mellon and the Owners and Beneficial Owners of
the American Depositary Receipts (incorporated by reference to
Exhibit 2.4 from our Annual Report on Form 20-F (file no.
001-33853) filed with the Securities and Exchange Commission on
April 29, 2008).
|
|
5
|
.1**
|
|
Opinion of Maples and Calder regarding the validity of the
ordinary shares.
|
|
8
|
.1**
|
|
Opinion of Skadden, Arps, Slate, Meagher & Flom LLP
regarding certain U.S. tax matters.
|
|
8
|
.2**
|
|
Opinion of Commerce & Finance Law Offices regarding certain
PRC tax matters.
|
|
10
|
.1**
|
|
Sale and Purchase Agreement dated February 3, 2010 among Wing On
Travel (Holdings) Limited,
C-Travel
International Limited and Ctrip.com International, Ltd.
|
|
23
|
.1**
|
|
Consent of PricewaterhouseCoopers Zhong Tian CPAs Limited
Company.
|
|
23
|
.2**
|
|
Consent of Maples and Calder (included in Exhibit 5.1).
|
|
23
|
.3**
|
|
Consent of Skadden, Arps, Slate, Meagher & Flom LLP
(included in Exhibit 8.1).
|
|
23
|
.4**
|
|
Consent of Commerce & Finance Law Offices.
|
|
24
|
.1**
|
|
Powers of Attorney (included as part of signature page).
|
|
|
|
*
|
|
To be filed as an exhibit to a post-effective amendment to this
registration statement or as an exhibit to a report filed under
the Exchange Act and incorporated by reference.
|
|
**
|
|
Filed with this registration statement on
Form F-3.
|
II-6
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