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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM 20-F
(Mark One)
☐ REGISTRATION STATEMENT PURSUANT TO SECTION 12(b) OR 12(g) OF THE SECURITIES
EXCHANGE ACT OF 1934
OR
☒ ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
For the fiscal year ended December 31, 2021
OR
☐ TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF
1934
For the transition period from to __________
OR
☐ SHELL COMPANY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE
ACT OF 1934
Date of event requiring this shell company report ________
Commission file number: 001-33853
TRIP.COM GROUP LIMITED
(Exact name of Registrant as specified in its charter)
N/A
(Translation of Registrant’s name into English)
Cayman Islands
(Jurisdiction of incorporation or organization)
968 Jin Zhong Road
Shanghai 200335
People’s Republic of China
(Address of principal executive offices)
Jane Jie Sun, Chief Executive Officer
Telephone: +86 (21) 3406-4880
Facsimile: +86 (21) 5251-0000
968 Jin Zhong Road
Shanghai 200335
People’s Republic of China
(Name, Telephone, Email and/or Facsimile number and Address of Company Contact Person)
Securities registered or to be registered pursuant to Section 12(b) of the Act:
Title of each class
American depositary shares (each representing
one ordinary share, par value US$0.00125 per
share)
Trading
Symbol
TCOM
Name of each exchange
on which registered
Nasdaq Stock Market LLC
(Nasdaq Global Select Market)
Ordinary shares, par value US$0.00125 per
share
9961
The Stock Exchange of Hong Kong Limited
Securities registered or to be registered pursuant to Section 12(g) of the Act:
None
(Title of Class)
Securities for which there is a reporting obligation pursuant to Section 15(d) of the Act:
None
(Title of Class)
Indicate the number of outstanding shares of each of the issuer’s classes of capital or common stock as of the close of the period covered by the annual
report: 641,329,557 ordinary shares, par value US$0.00125 per share, as of December 31, 2021.
Indicate by check mark if the registrant is a well-known seasoned issuer, as defined in Rule 405 of the Securities Act. ☒ Yes ☐ No
If this report is an annual or transition report, indicate by check mark if the registrant is not required to file reports pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934. ☐ Yes ☒ No
Note — Checking the box above will not relieve any registrant required to file reports pursuant to Section 13 or 15(d) of the Securities Exchange Act of
1934 from their obligations under those Sections.
Indicate by check mark whether the registrant: (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934
during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing
requirements for the past 90 days. ☒ Yes ☐ No
Indicate by check mark whether the registrant has submitted electronically every Interactive Data File required to be submitted pursuant to Rule 405 of
Regulation S-T (§232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit such
files). ☒ Yes ☐ No
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or an emerging growth company.
See the definitions of “large accelerated filer,” “accelerated filer,” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
Large accelerated filer
☒
Accelerated filer ☐
Non-accelerated filer
Emerging growth company
☐
☐
If an emerging growth company that prepares its financial statements in accordance with U.S. GAAP, indicate by check mark if the registrant has elected
not to use the extended transition period for complying with any new or revised financial accounting standards† provided pursuant to Section 13(a) of
the Exchange Act. ☐
†
The term “new or revised financial accounting standard” refers to any update issued by the Financial Accounting Standards Board to its Accounting Standards Codification after
April 5, 2012.
Indicate by check mark whether the registrant has filed a report on and attestation to its management’s assessment of the effectiveness of its internal
control over financial reporting under Section 404(b) of the Sarbanes-Oxley Act (15 U.S.C. 7262(b)) by the registered public accounting firm that
prepared or issued its audit report. ☒
Indicate by check mark which basis of accounting the registrant has used to prepare the financial statements included in this filing:
U.S. GAAP ☒
International Financial Reporting Standards as issued
by the International Accounting Standards Board ☐
Other ☐
If “Other” has been checked in response to the previous question, indicate by check mark which financial statement item the registrant has elected to
follow. ☐ Item 17 ☐ Item 18
If this is an annual report, indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange
Act). ☐ Yes ☒ No
(APPLICABLE ONLY TO ISSUERS INVOLVED IN BANKRUPTCY PROCEEDINGS DURING THE PAST FIVE YEARS.)
Indicate by check mark whether the registrant has filed all documents and reports required to be filed by Sections 12, 13 or 15(d) of the Securities
Exchange Act of 1934 subsequent to the distribution of securities under a plan confirmed by a court. ☐ Yes ☐ No
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INTRODUCTION
FORWARD-LOOKING STATEMENT
PART I.
TABLE OF CONTENTS
IDENTITY OF DIRECTORS, SENIOR MANAGEMENT AND ADVISERS
ITEM 1.
OFFER STATISTICS AND EXPECTED TIMETABLE
ITEM 2.
KEY INFORMATION
ITEM 3.
ITEM 4.
INFORMATION ON THE COMPANY
ITEM 4.A. UNRESOLVED STAFF COMMENTS
ITEM 5.
ITEM 6.
ITEM 7.
ITEM 8.
ITEM 9.
ITEM 10.
ITEM 11.
ITEM 12.
OPERATING AND FINANCIAL REVIEW AND PROSPECTS
DIRECTORS, SENIOR MANAGEMENT AND EMPLOYEES
MAJOR SHAREHOLDERS AND RELATED PARTY TRANSACTIONS
FINANCIAL INFORMATION
THE OFFER AND LISTING
ADDITIONAL INFORMATION
QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
DESCRIPTION OF SECURITIES OTHER THAN EQUITY SECURITIES
PART II.
DEFAULTS, DIVIDEND ARREARAGES AND DELINQUENCIES
ITEM 13.
MATERIAL MODIFICATIONS TO THE RIGHTS OF SECURITY HOLDERS AND USE OF PROCEEDS
ITEM 14.
ITEM 15.
CONTROLS AND PROCEDURES
ITEM 16A. AUDIT COMMITTEE FINANCIAL EXPERT
ITEM 16B. CODE OF ETHICS
ITEM 16C. PRINCIPAL ACCOUNTANT FEES AND SERVICES
ITEM 16D. EXEMPTIONS FROM THE LISTING STANDARDS FOR AUDIT COMMITTEES
ITEM 16E. PURCHASE OF EQUITY SECURITIES BY THE ISSUER AND AFFILIATED PURCHASERS
ITEM 16F. CHANGE IN REGISTRANT’S CERTIFYING ACCOUNTANT
ITEM 16G. CORPORATE GOVERNANCE
ITEM 16H. MINE SAFETY DISCLOSURE
ITEM 16I. DISCLOSURE REGARDING FOREIGN JURISDICTIONS THAT PREVENT INSPECTIONS
PART III.
ITEM 17.
ITEM 18.
ITEM 19.
FINANCIAL STATEMENTS
FINANCIAL STATEMENTS
EXHIBITS
SIGNATURES
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In this annual report, unless otherwise indicated or unless the context otherwise requires:
INTRODUCTION
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“ADSs” refers to American depositary shares, each of which represents one ordinary share;
“CCASS” refers to the Central Clearing and Settlement System established and operated by Hong Kong Securities Clearing Company
Limited, a wholly-owned subsidiary of Hong Kong Exchange and Clearing Limited;
“China” or “PRC” refers to the People’s Republic of China and, solely for the purpose of this annual report, excludes Taiwan, Hong Kong,
and Macau, and “Greater China” refers to the People’s Republic of China, Taiwan, Hong Kong, and Macau;
“consolidated affiliated Chinese entities” or “VIEs” refers to variable interest entities, which are companies incorporated in China that have
entered into a series of contractual arrangements with their respective shareholders and our PRC subsidiaries. Our company controls, and
thereby consolidates, each of these entities through these contractual arrangements;
“CSRC” refers to the China Securities Regulatory Commission;
“GMV” refers to gross merchandise volume, the total value of merchandise sold through our platform during a given period;
“HK$” or “Hong Kong dollars” or “HK dollars” refers to Hong Kong dollars, the lawful currency of Hong Kong;
“Hong Kong” or “HK” or “Hong Kong S.A.R.” refers to the Hong Kong Special Administrative Region of the PRC;
“Hong Kong Listing Rules” refers to the Rules Governing the Listing of Securities on The Stock Exchange of Hong Kong Limited, as
amended or supplemented from time to time;
“Hong Kong Share Registrar” refers to Computershare Hong Kong Investor Services Limited;
“Hong Kong Stock Exchange” refers to The Stock Exchange of Hong Kong Limited;
“Main Board” refers to the stock market (excluding the option market) operated by the Hong Kong Stock Exchange which is independent
from and operated in parallel with the Growth Enterprise Market of the Hong Kong Stock Exchange;
“Qunar” refers to Qunar Cayman Islands Limited, a Cayman Islands exempted company, and unless the context requires otherwise,
includes its predecessor entities and consolidated subsidiaries and consolidated affiliated Chinese entities;
“Renminbi” or “RMB” refers to the legal currency of China; “U.S. dollars” or “US$” refers to the legal currency of the United States; and
“€” refers to the legal currency of Eurozone;
“SFC” refers to the Securities and Futures Commission of Hong Kong;
“SFO” refers to the Securities and Futures Ordinance (Chapter 571 of the Laws of Hong Kong), as amended or supplemented from time to
time;
“shares” or “ordinary shares” refers to our ordinary shares, par value of US$0.00125 per share; and
“we,” “us,” “our company” or “Trip.com Group” refers to Trip.com Group Limited (formerly known as Ctrip.com International, Ltd.), its
predecessor entities and subsidiaries, and, in the context of describing our operations and consolidated financial information, its
consolidated affiliated Chinese entities, unless otherwise indicated herein. We consolidate the financial results of Qunar starting from
December 31, 2015. In calculating the number of hotels with which we have room supply relationships, downloads of and transactions
through our mobile channel, and other operational data, where applicable, as well as in describing our marketing, branding, and intellectual
properties, we have not taken into account the comparable operating data or other information of Qunar.
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Any discrepancies in any table between the amounts identified as total amounts and the sum of the amounts listed therein are due to rounding.
This annual report on Form 20-F includes our audited consolidated financial statements for the years ended December 31, 2019, 2020 and 2021.
On March 18, 2021, we effected a change to our authorized share capital by one (1)-to-eight (8) subdivision of shares, or the Share Subdivision.
Concurrently, we effected a proportionate change in ADS to ordinary share ratio from eight (8) ADSs representing one (1) ordinary share to one (1) ADS
representing one (1) ordinary share. Such changes have been reflected retrospectively throughout this document.
Our reporting currency is Renminbi. This annual report contains translations from Renminbi to U.S. dollars solely for the convenience of the
reader. Unless otherwise stated, all translations from Renminbi to U.S. dollars were made at a rate of RMB6.3726 to US$1.00, which was the exchange
rate in effect as of December 30, 2021 as set forth in the H.10 statistical release of The Board of Governors of the Federal Reserve System. The
exchange rate in effect as of April 22, 2022 was RMB6.5010 to US$1.00. We make no representation that any Renminbi amounts referred to in this
annual report could have been, or could be, converted to U.S. dollars at any particular rate, or at all.
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FORWARD-LOOKING STATEMENT
This annual report on Form 20-F contains 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;
our future business development, results of operations and financial condition;
our ability to continue to control costs and maintain profitability; and
the expected growth in the overall economy and demand for travel services in China.
The forward-looking statements included in this annual report on Form 20-F 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 described under “Item
3. Key Information — D. Risk Factors,” included elsewhere in this annual report on Form 20-F, including the following risks:
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slow-down of economic growth in China and the global economic downturn may have a material and adverse effect on our business, and
may materially and adversely affect our growth and profitability;
public health crisis, such as COVID-19 outbreak, may have a material and adverse effect on our business and results of operations;
general declines or disruptions in the travel industry may materially and adversely affect our business and results of operations;
the trading price of our listed securities has been volatile historically and may continue to be volatile regardless of our operating
performance;
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;
if we fail to further increase our brand recognition, we may face difficulty in retaining existing and acquiring new business partners and
customers, and our business may be harmed;
if we do not compete successfully against new and existing competitors, we may lose our market share, and our business and results of
operations may be materially and adversely affected;
our business could suffer if we do not successfully manage current growth and potential future growth;
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;
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;
our business depends substantially on the continuing efforts of our key executives, and our business may be severely disrupted if we lose
their services;
inflation in China may disrupt our business and have an adverse effect on our financial condition and results of operations; and
if the ownership structure of our consolidated 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 consolidated
affiliated Chinese entities may be subject to fines and other penalties, which may adversely affect our business and results of operations.
These risks are not exhaustive. Other sections of this annual report include additional factors that could adversely impact our business and
financial performance. You should read these statements in conjunction with the risk factors disclosed in “Item 3. Key Information — D. Risk Factors”
of this annual report and other risks outlined in our other filings with the Securities and Exchange Commission, or SEC. Moreover, we operate in an
emerging and evolving environment. New risk factors may emerge from time to time, and it is not possible for our management to predict all risk
factors, nor can we assess the impact of all factors on our business or the extent to which any factor, or combination of factors, may cause actual results
to differ materially from those contained in any forward-looking statements.
You should not rely upon forward-looking statements as predictions of future events. We undertake no obligation to update or revise any forward-
looking statements, whether as a result of new information, future events or otherwise.
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ITEM 1.
IDENTITY OF DIRECTORS, SENIOR MANAGEMENT AND ADVISERS
Not applicable.
PART I.
ITEM 2.
OFFER STATISTICS AND EXPECTED TIMETABLE
Not applicable.
ITEM 3.
KEY INFORMATION
Our Holding Company Structure and Contractual Arrangements with Our Consolidated Affiliated Chinese Entities
Trip.com Group Limited is not a Chinese operating company but a Cayman Islands holding company with no equity ownership in its consolidated
affiliated Chinese entities. We conduct our operations in China through (i) our PRC subsidiaries and (ii) our consolidated affiliated Chinese entities with
which we have maintained contractual arrangements and their PRC subsidiaries. PRC laws and regulations prohibit foreign investment in internet and
other-related businesses. Accordingly, we operate these businesses in China through our consolidated affiliated Chinese entities, and rely on contractual
arrangements among our PRC subsidiaries, our consolidated affiliated Chinese entities, and their shareholders to control the business operations of our
consolidated affiliated Chinese entities. Net revenues contributed by our consolidated affiliated Chinese entities accounted for 27%, 36%, and 30% of
our total net revenues for the year ended December 31, 2019, 2020, and 2021, respectively. As used in this annual report, “we,” “us,” “our company” or
“our” refers to Trip.com Group Limited, its subsidiaries, and, in the context of describing our operations and consolidated financial information, also
referring to our consolidated affiliated Chinese entities in China, primarily including Shanghai Ctrip Commerce Co., Ltd., Shanghai Huacheng
Southwest International Travel Agency Co., Ltd., Chengdu Ctrip Travel Agency Co., Ltd., and Beijing Qu Na Information Technology Co., Ltd.
Investors in our ADSs are not purchasing equity interest in our consolidated affiliated Chinese entities in China but instead are purchasing equity interest
in a holding company incorporated in the Cayman Islands.
A series of contractual agreements, including powers of attorney, technical consulting and services agreement, equity pledge agreements,
exclusive option agreements, and loan agreements, have been entered into by and among our PRC subsidiaries, our consolidated affiliated Chinese
entities, and their respective shareholders. Terms contained in each set of contractual arrangements with our consolidated affiliated Chinese entities and
their respective shareholders are substantially similar. As a result of the contractual arrangements, we have effective control over and are considered the
primary beneficiary of these companies, and we have consolidated the financial results of these companies in our consolidated financial statements. For
more details of these contractual arrangements, see “Item 7. Major Shareholders and Related Party Transactions—B. Related Party Transactions—
Arrangements with Consolidated Affiliated Chinese Entities.”
However, the contractual arrangements may not be as effective as direct ownership in providing us with control over our consolidated affiliated
Chinese entities and we may incur substantial costs to enforce the terms of the arrangements. See “Item 3. Key Information—D. Risk Factors—Risks
Relating to Our Corporate Structure—If our consolidated affiliated Chinese entities violate our contractual arrangements with them, our business could
be disrupted, our reputation may be harmed and we may have to resort to litigation to enforce our rights, which may be time-consuming and expensive”
and “Item 3. Key Information—D. Risk Factors—Risks Relating to Our Corporate Structure—The principal shareholders of our consolidated affiliated
Chinese entities have potential conflict of interest with us, which may adversely affect our business.”
Our corporate structure is subject to risks associated with our contractual arrangements with our consolidated affiliated Chinese entities and our
investors may never directly hold equity interests in our consolidated affiliated Chinese entities. If the PRC government deems that our contractual
arrangements with our consolidated affiliated Chinese entities do not comply with PRC regulatory restrictions on foreign investment in the relevant
industries, or if these regulations or the interpretation of existing regulations change or are interpreted differently in the future, we could be subject to
severe penalties or be forced to relinquish our interests in those operations. Our holding company, our subsidiaries, and consolidated affiliated Chinese
entities, and investors of our company face uncertainty about potential future actions by the PRC government that could affect the enforceability of the
contractual arrangements with our consolidated affiliated Chinese entities and, consequently, significantly affect the financial performance of our
consolidated affiliated Chinese entities and our company as a whole. For a detailed description of the risks associated with our corporate structure, see
“Item 3. Key Information—D. Risk Factors—Risks Relating to Our Corporate Structure.”
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There are also substantial uncertainties regarding the interpretation and application of current and future PRC laws, regulations and rules regarding
the status of the rights of our Cayman Islands holding company with respect to its contractual arrangements with our consolidated affiliated Chinese
entities and their shareholders. It is uncertain whether any new PRC laws or regulations relating to consolidated affiliated Chinese entity structures will
be adopted or if adopted, what they would provide. If we or any of our consolidated affiliated Chinese entities is found to be in violation of any existing
or future PRC laws or regulations, or fail to obtain or maintain any of the required permits or approvals, the relevant PRC regulatory authorities would
have broad discretion to take action in dealing with such violations or failures. See “Item 3. Key Information—D. Risk Factors—Risks Relating to Our
Corporate Structure—PRC laws and regulations restrict foreign investment in the travel agency and value-added telecommunications businesses, and
substantial uncertainties exist with respect to the application and implementation of PRC laws and regulations.” and “Item 3. Key Information—D. Risk
Factors—Risks Relating to Our Corporate Structure—Our business may be significantly affected by the PRC Foreign Investment Law.”
We face various risks and uncertainties relating to doing business in China. Our business operations are primarily conducted in China, and we are
subject to complex and evolving PRC laws and regulations. For example, we face risks associated with regulatory approvals on overseas offerings by
and foreign investment in China-based issuers, the use of our consolidated affiliated Chinese entities, anti-monopoly regulatory actions, and oversight on
cybersecurity and data privacy, as well as the lack of inspection on our auditors by the Public Company Accounting Oversight Board, or the PCAOB,
which may impact our ability to conduct certain businesses, accept foreign investments, or list on a United States or other exchange outside China.
These risks could result in a material adverse change in our operations and the value of our ADSs, significantly limit or completely hinder our ability to
continue to offer securities to investors, or cause the value of such securities to significantly decline. For a detailed description of risks relating to doing
business in China, please refer to risks disclosed under “Item 3. Key Information—D. Risk Factors—Risks Relating to Doing Business in China.”
The PRC government’s significant authority in regulating our operations and its oversight and control over offerings conducted overseas by, and
foreign investment in, China-based issuers could significantly limit or completely hinder our ability to offer or continue to offer securities to investors.
Implementation of industry-wide regulations in this nature, such as data security or anti-monopoly related regulations, may cause the value of such
securities to significantly decline. For more details, see “Item 3. Key Information—D. Risk Factors—Risks Relating to Doing Business in China—The
PRC government’s significant oversight and discretion over our business operation could result in a material adverse change in our operations and the
value of our ADSs and ordinary shares.”
Risks and uncertainties arising from the legal system in China, including risks and uncertainties regarding the enforcement of laws and quickly
evolving rules and regulations in China, could result in a material adverse change in our operations and the value of our ADSs. For more details, see
“Item 3. Key Information—D. Risk Factors—Risks Relating to Doing Business in China—Uncertainties with respect to the PRC legal system could
adversely affect us.”
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Permissions Required from the PRC Authorities for Our Operations
We conduct our business primarily through our PRC subsidiaries and consolidated affiliated Chinese entities in China. Our operations in China are
governed by PRC laws and regulations. As of the date of this annual report, our PRC subsidiaries and consolidated affiliated Chinese entities have
obtained the requisite licenses and permits from the PRC government authorities that are material for their business operations in China, including,
among others, value added telecommunications operating license and travel agency operation license. Given the uncertainties of interpretation and
implementation of relevant laws and regulations and the enforcement practice by relevant government authorities, we may be required to obtain
additional licenses, permits, registrations, filings, or approvals for our business operations in the future. For more detailed information, see “Item 3. Key
Information—D. Risk Factors—Risks Relating to Doing Business in China— We have attempted to comply with the PRC regulations regarding
licensing requirements. If the PRC laws and regulations change, our business in China may be adversely affected. Any lack of requisite approvals,
licenses, or permits applicable to our business or any failure to comply with applicable laws or regulations may materially and adversely affect our
business, financial condition, and results of operations.”
Furthermore, in connection with our historical issuance of securities to foreign investors, under current PRC laws, regulations, and rules, as of the
date of this annual report, we, our PRC subsidiaries, and our consolidated affiliated Chinese entities, (i) are not required to obtain permissions from the
China Securities Regulatory Commission, or the CSRC, (ii) are not required to go through cybersecurity review by the Cyberspace Administration of
China, or the CAC, and (iii) have not received or were not denied such requisite permissions by any PRC authority.
However, the PRC government has recently indicated an intent to exert more oversight and control over offerings that are conducted overseas by
and/or foreign investment in China-based issuers. For more detailed information, see “Item 3. Key Information—D. Risk Factors—Risks Relating to
Doing Business in China—The approval of and the filing with the CSRC or other PRC government authorities may be required in connection with our
offshore offerings in the future under PRC law, and, if required, we cannot predict whether or for how long we will be able to obtain such approval or
complete such filing.”
Cash and Asset Flows Through Our Organization
Trip.com Group Limited is a holding company with no material operations of its own. We conduct our operations in China primarily through our
PRC subsidiaries, our consolidated affiliated Chinese entities, and their PRC subsidiaries. As a result, Trip.com Group Limited’s ability to pay dividends
and to service any debt that it may incur depends upon dividends paid by our PRC subsidiaries and service fees paid by our consolidated affiliated
Chinese entities. If our existing PRC subsidiaries, our consolidated affiliated Chinese entities or any newly formed ones incur debt on their own behalf
in the future, the instruments governing their debt may restrict their ability to pay dividends or make other payments to Trip.com Group Limited. In
addition, our PRC subsidiaries are permitted to pay dividends to us only out of its retained earnings, if any, as determined in accordance with PRC
accounting standards and regulations. Under PRC law, each of our PRC subsidiaries and our consolidated affiliated Chinese entities in China is required
to make appropriations to certain statutory reserve funds or may make appropriations to certain discretionary funds, which are not distributable as cash
dividends except in the event of a solvent liquidation of the companies. For more details, see “Item 5. Operating and Financial Review and Prospects—
B. Liquidity and Capital Resources—Holding Company Structure.” and “Item 3. Key Information—D. Risk Factors—Risks Relating to Our Corporate
Structure—Our PRC subsidiaries are subject to restrictions on paying dividends or making other payments to us while our consolidated affiliated
Chinese entities can only make payments to us in accordance with the contractual arrangements, which may restrict our ability to satisfy our liquidity
requirements.”
The ability to transfer cash and other assets within our organization may be subject to conditions and restrictions pursuant to the applicable laws
and regulations. For example, under the PRC laws and regulations, Trip.com Group Limited may provide funding to our PRC subsidiaries only through
capital contributions or loans, and to our consolidated affiliated Chinese entities only through loans, subject to satisfaction of applicable government
registration and approval requirements. Additionally, under the PRC laws and regulations, our PRC subsidiaries and consolidated affiliated Chinese
entities are subject to certain restrictions with respect to payment of dividends or otherwise transfers of any of their net assets to us. Remittance of
dividends by a wholly foreign-owned enterprise out of China is also subject to examination by the banks designated by the PRC State Administration of
Foreign Exchange, or SAFE. These restrictions are benchmarked against the paid-up capital and the statutory reserve funds of our PRC subsidiaries and
the net assets of our consolidated affiliated Chinese entities in which we have no legal ownership. As of December 31, 2019, 2020, and 2021, the total
amount of such restriction to which our PRC subsidiaries and consolidated affiliated Chinese entities are subject was RMB6.8 billion, RMB7.8 billion,
and RMB6.5 billion (US$1.0 billion), respectively. For details, see “Item 3. Key Information—D. Risk Factors—Risks Relating to Our Corporate
Structure—Our PRC subsidiaries are subject to restrictions on paying dividends or making other payments to us while our consolidated affiliated
Chinese entities can only make payments to us in accordance with the contractual arrangements, which may restrict our ability to satisfy our liquidity
requirements.”
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For the years ended December 31, 2019, 2020 and 2021, Trip.com Group Limited provided capital contributions of RMB29 million, RMB903
million and nil, respectively, to its subsidiaries.
For the years ended December 31, 2019, 2020 and 2021, Trip.com Group Limited’s cash flows of loan funding provided to our subsidiaries, net of
repayments received, were net cash inflows of RMB6.5 billion, net cash outflows of RMB358 million and net cash inflows of RMB1.1 billion,
respectively.
For the years ended December 31, 2019, 2020 and 2021, our subsidiaries did not extend any loan funding to Trip.com Group Limited.
For the years ended December 31, 2019, 2020 and 2021, our consolidated affiliated Chinese entities’ cash flows of loan funding provided to our
subsidiaries, net of repayments received, were net cash inflows of RMB2.0 billion, net cash inflows of RMB817 million and net cash outflows of
RMB434 million, respectively.
For the years ended December 31, 2019, 2020 and 2021, our consolidated affiliated Chinese entities’ cash flows of loan funding received from our
subsidiaries, net of repayments made, were net cash outflows of RMB1.0 billion, net cash outflows of RMB2.2 billion and net cash outflows of RMB3.8
billion, respectively.
For the years ended December 31, 2019, 2020, and 2021, no assets other than cash were transferred between our Cayman Islands holding
company and a subsidiary, a consolidated affiliated Chinese entity, or its subsidiary, and no subsidiary paid dividends or made other distributions to our
Cayman Islands holding company. For details of the financial position, cash flows, and results of operations of our consolidated affiliated Chinese
entities, see “—Financial Information Related to Our Consolidated Affiliated Chinese Entities” and pages F-16 and F-17 of this annual report on Form
20-F.
Trip.com Group Limited has not declared or paid any cash dividends for the years ended December 31, 2019, 2020 and 2021, nor does it have any
present plan to pay any cash dividends on its ordinary shares in the foreseeable future. We currently intend to retain most, if not all, of our available
funds and any future earnings to fund the development and growth of our business. See “Item 8. Financial Information—A. Consolidated Statements
and Other Financial Information—Dividend Policy.” For the material Cayman Islands, PRC and U.S. federal income tax consequences of an investment
in our ADSs or ordinary shares, see “Item 10. Additional Information—E. Taxation.”
8
Table of Contents
Selected Consolidated Financial Data
The following table presents the selected consolidated financial information for our business. You should read the following information in
conjunction with “Item 5. Operating and Financial Review and Prospects” below. The selected consolidated statements of income/(loss) data for the
years ended December 31, 2019, 2020 and 2021 and the selected consolidated balance sheets data as of December 31, 2020 and 2021 have been derived
from our audited consolidated financial statements and should be read in conjunction with those statements, which are included in this annual report
beginning on page F-1. The selected consolidated statements of income/(loss) data for the years ended December 31, 2017 and 2018 and the selected
consolidated balance sheets data as of December 31, 2017, 2018 and 2019 have been derived from our audited consolidated financial statements for
these periods, which are not included in this annual report.
Our historical results do not necessarily indicate results expected for any future periods.
Selected Consolidated Statements of
Income/(Loss) Data
Net revenues
Cost of revenues
Gross profit
Operating expenses
—Product development(2)
—Sales and marketing(2)
—General and administrative(2)
Total operating expenses
Income/ (loss) from operations
Net interest income/(expense) and other income
/(expense) (3)
Income /(loss) before income tax expense and
equity in (loss)/income of affiliates
Income tax expense
Equity in (loss)/income of affiliates
Net income /(loss)
Net (loss) /income attributable to non-controlling
interests
Accretion to redemption value of redeemable
non-controlling interests(6)
Net income /(loss) attributable to Trip.com Group
Limited
Earnings/(losses) per ordinary share data:
Earnings/(losses) per ordinary share(4)(5),
basic
Earnings/(losses) per ordinary share(4)(5), diluted
Weighted average ordinary shares outstanding(5),
2017(1)
RMB
2018(1)
RMB
2019
RMB
2020
RMB
2021
RMB
US$
(in millions, except for share and per share data)
For the Year Ended December 31,
26,796
(4,678)
22,118
(8,259)
(8,294)
(2,622)
(19,175)
2,943
30,965
(6,324)
24,641
(9,620)
(9,596)
(2,820)
(22,036)
2,605
35,666
(7,372)
28,294
(10,670)
(9,295)
(3,289)
(23,254)
5,040
18,316
(4,031)
14,285
(7,667)
(4,405)
(3,636)
(15,708)
(1,423)
20,023
(4,598)
15,425
(8,992)
(4,922)
(2,922)
(16,836)
(1,411)
3,142
(721)
2,421
(1,411)
(772)
(459)
(2,642)
(221)
581
(684)
4,047
198
940
147
3,524
(1,285)
(65)
2,174
(19)
—
1,921
(793)
(32)
1,096
16
—
9,087
(1,742)
(347)
6,998
(1,225)
(355)
(1,689)
(3,269)
57
62
(44)
(40)
(471)
(270)
96
(645)
95
—
(74)
(42)
15
(101)
15
—
2,155
1,112
7,011
(3,247)
(550)
(86)
4.06
3.84
2.03
1.96
12.35
11.50
(5.40)
(5.40)
(0.87)
(0.87)
(0.14)
(0.14)
basic
530,406,464 547,227,408 567,871,968 600,888,208 634,109,233 634,109,233
Weighted average ordinary shares outstanding(5),
diluted
574,207,144 567,396,984 641,952,112 600,888,208 634,109,233 634,109,233
9
Table of Contents
Selected Consolidated Balance Sheets Data
Cash and cash equivalents
Restricted cash
Short-term investments
Current assets
Investments(3)
Total assets
Current liabilities
Long-term debt
Total liabilities
Redeemable non-controlling interests(7)
Share capital
Total Trip.com Group Limited shareholders’ equity
Non-controlling interests
Total shareholders’ equity
2017(1)
2018(1)
As of December 31,
2020
2019(6)
2021
RMB RMB RMB RMB RMB US$
(in millions)
1,319
4,244
1,824
1,378
1,749
18,243 21,530 19,923 18,096 19,818 3,110
216
28,130 36,753 23,058 24,820 29,566 4,640
59,418 79,394 67,955 58,011 66,108 10,374
25,574 26,874 51,278 47,943 44,961 7,055
162,240 185,830 200,169 187,249 191,859 30,107
42,162 68,784 69,182 58,369 66,218 10,391
29,220 24,146 19,537 22,718 11,093 1,741
75,625 97,097 93,324 85,682 81,403 12,774
— —
1,142
1
6
84,836 86,715 103,442 100,354 109,677 17,211
122
86,615 88,733 105,703 101,567 110,456 17,333
—
5
—
5
—
6
1,779
2,261
2,018
1,213
779
6
Notes:
(1)
Effective from January 1, 2018, we adopted ASC Topic 606, a new accounting standard on the recognition of revenue issued by FASB in 2014, and have applied this accounting
standard retrospectively to the year ended December 31, 2017.
(2)
Share-based compensation was included in the related operating expense categories as follows:
Product development
Sales and marketing
General and administrative
For the Year Ended December 31,
2021
2017 2018 2019 2020
RMB RMB RMB RMB RMB US$
(in millions)
1,013 934 919 964 802 126
186 156 144 159 149 23
635 617 651 750 730 115
(3)
In 2017 and 2018, we disposed certain long-term investments and recognized a gain of RMB1.4 billion and RMB1.2 billion, respectively. In January 2018, we adopted a new financial
instruments accounting standard ASU No. 2016-01, which requires equity investments to be measured at fair value with subsequent changes recognized in net income, except for those
accounted for under the equity method or requiring consideration. Fair value changes for such equity investments and exchangeable notes were a fair value gain of RMB2.3 billion, a
fair value loss of RMB612 million and a fair value loss of RMB170 million for the year ended December 31, 2019, 2020 and 2021, respectively. The new standard also changes the
accounting for investments without a readily determinable fair value and that do not qualify for the practical expedient to estimate fair value. A policy election can be made for these
investments whereby investment will be carried at cost and adjusted in subsequent periods for any impairment or changes in observable prices of identical or similar investments.
10
Table of Contents
(4)
(5)
(6)
(7)
Each ADS represents one ordinary share.
On March 18, 2021, we effected a change to our authorized share capital by one (1)-to-eight (8) subdivision of shares. Concurrently, we effected a proportionate change in ADS to
ordinary share ratio from eight (8) ADSs representing one (1) ordinary share to one (1) ADS representing one (1) ordinary share. Such changes have been reflected retrospectively
throughout this document.
Effective from January 1, 2019, we adopted ASC No. 2018-11, a new accounting standard on the recognition of right-of-use assets and lease liabilities issued by FASB in 2018, and
have applied this accounting standard on a modified retrospective basis and have elected not to restate comparative periods. See Notes 2 and 11 to our audited consolidated financial
statements included elsewhere in this annual report for further information.
One of our subsidiaries issued redeemable preferred shares to certain third-party investors in 2019. These preferred shares are redeemable at a holder’s option when that subsidiary
fails to complete a qualified IPO in a pre-agreed period of time since its issuance with a redemption price measured by 10% interest per annum. These preferred shares are therefore
accounted for as redeemable non-controlling interests in mezzanine equity and are accreted to the redemption value over the period starting from the issuance date. In 2020, we lost the
control in this subsidiary, and therefore financial position and results of operations of this subsidiary was deconsolidated.
Financial Information Related to Our Consolidated Affiliated Chinese Entities
The following tables present the condensed consolidating schedules of financial information of Trip.com Group Limited, our subsidiaries that are
the primary beneficiaries of our consolidated affiliated Chinese entities, our other subsidiaries and our consolidated affiliated Chinese entities and their
subsidiaries for the years and as of the dates indicated.
11
Table of Contents
Condensed Consolidated Results of Operations Data
Third-party net revenues
Inter-company net revenues(1)
Third-party cost of revenues and operating expenses
Inter-company cost of revenues and operating expenses(1)
(Loss)/income from operations
Share of income from subsidiaries and Consolidated Affiliated Chinese
Entities(2)
Net interest (expense)/income and other (expense)/income
(Loss)/income before income tax expense and equity in income/(loss)
of affiliates
Income tax (expense)/benefit
Equity in income/(loss) of affiliates
Net (loss)/income
Net income/(loss) attributable to non-controlling interests
Net (loss)/income attributable to Trip.com Group Limited
For the Year Ended December 31, 2021
Trip.com
Group
Limited
Other
Subsidiaries
Primary
Beneficiaries
of
Consolidated
Affiliated
Chinese
Entities
Consolidated
Affiliated
Chinese
Entities and
their
Subsidiaries
(RMB in millions)
Eliminating
Adjustments
Consolidated
Totals
—
—
(13)
—
(13)
12,226
122
(12,095)
(1,217)
(964)
2,055
2,578
(4,115)
—
518
5,742
293
(5,211)
(1,776)
(952)
—
(2,993)
—
2,993
—
20,023
—
(21,434)
—
(1,411)
742
(1,289)
614
1,181
1,043
216
—
832
(2,399)
—
(560)
—
10
(550)
—
(550)
12
831
(257)
66
640
102
742
1,777
(86)
85
1,776
—
1,776
(120)
73
(65)
(112)
(7)
(119)
(2,399)
—
—
(2,399)
—
(2,399)
—
940
(471)
(270)
96
(645)
95
(550)
Table of Contents
Third-party net revenues
Inter-company net revenues(1)
Third-party cost of revenues and operating expenses
Inter-company cost of revenues and operating expenses(1)
(Loss)/income from operations
Share of income/(loss) from subsidiaries and Consolidated Affiliated
Chinese Entities(2)
Net interest (expense)/income and other (expense)/income
(Loss)/income before income tax expense and equity in loss of
affiliates
Income tax (expense)/benefit
Equity in loss of affiliates
Net (loss)/income
Net income/(loss) attributable to non-controlling interests
Accretion to redemption value of redeemable non-controlling interests
Net (loss)/income attributable to Trip.com Group Limited
For the Year Ended December 31, 2020
Trip.com
Group
Limited
Other
Subsidiaries
Primary
Beneficiaries
of
Consolidated
Affiliated
Chinese
Entities
Consolidated
Affiliated
Chinese
Entities and
their
Subsidiaries
(RMB in millions)
Eliminating
Adjustments
Consolidated
Totals
—
—
(201)
—
(201)
9,763
—
(9,918)
(778)
(933)
2,349
2,207
(4,105)
—
451
6,204
309
(5,515)
(1,738)
(740)
—
(2,516)
—
2,516
—
18,316
—
(19,739)
—
(1,423)
68
(1,922)
126
1,396
(2,055)
—
(1,192)
(3,247)
—
—
(3,247)
13
589
(144)
(407)
38
70
(40)
68
(601)
262
112
(284)
(49)
(221)
—
—
(221)
—
462
(278)
73
(41)
(246)
(8)
—
(254)
407
—
407
—
—
407
—
—
407
—
198
(1,225)
(355)
(1,689)
(3,269)
62
(40)
(3,247)
Table of Contents
Third-party net revenues
Inter-company revenues(1)
Third-party cost of revenues and operating expenses
Inter-company cost of revenues and operating expenses(1)
(Loss)/income from operations
Share of income from subsidiaries and Consolidated Affiliated
Chinese Entities(2)
Net interest income and other income
Income before income tax expense and equity in
(loss)/income of affiliates
Income tax expense
Equity in (loss)/income of affiliates
Net income
Net income attributable to non-controlling interests
Accretion to redemption value of redeemable non-controlling
interests
Net income attributable to Trip.com Group Limited
For the Year Ended December 31, 2019
Trip.com
Group
Limited
—
—
(36)
—
(36)
5,434
1,648
7,046
—
(35)
7,011
—
—
7,011
Other
Subsidiaries
21,490
—
(17,933)
(1,424)
2,133
3,305
1,451
6,889
(1,068)
(394)
5,427
51
(44)
5,434
Primary
Beneficiaries
of
Consolidated
Affiliated
Chinese
Entities
Consolidated
Affiliated
Chinese
Entities and
their
Subsidiaries
(RMB in millions)
5,136
2,457
(4,518)
—
3,075
913
472
4,460
(437)
106
4,129
—
—
4,129
9,040
532
(8,139)
(1,565)
(132)
—
476
344
(237)
(24)
83
6
—
89
Eliminating
Adjustments
Consolidated
Totals
—
(2,989)
—
2,989
—
(9,652)
—
(9,652)
—
—
(9,652)
—
—
(9,652)
35,666
—
(30,626)
—
5,040
—
4,047
9,087
(1,742)
(347)
6,998
57
(44)
7,011
Notes:
(1)
(2)
It represents the elimination of the intercompany service charge at the consolidation level. For the year ended December 31, 2019, 2020 and 2021, the service fees of consolidated
affiliated Chinese entities and their subsidiaries charged by the primary beneficiaries of consolidated affiliated Chinese entities were RMB1.6 billion, RMB1.7 billion and RMB1.7
billion, respectively.
It represents the elimination of the investment among Trip.com Group Limited, other subsidiaries, primary beneficiaries of consolidated affiliated Chinese entities, and consolidated
affiliated Chinese entities and their subsidiaries.
14
Table of Contents
Condensed Consolidated Balance Sheets Data
ASSETS
Cash and cash equivalents
Restricted cash
Short-term investments
Accounts receivable
Due from related parties
Prepayments and other current assets
Amount due from Group companies(1)
Long-term deposits and prepayments
Long-term receivables due from related parties
Land use rights
Property, equipment and software
Investments
Investment in subsidiaries and consolidated affiliated Chinese entities(2)
Goodwill
Intangible assets
Right-of-use assets
Deferred tax assets
Total assets
LIABILITIES
Short-term debt and current portion of long-term debt
Accounts payable
Due to related parties
Salary and welfare payable
Taxes payable
Advances from customers
Accrued liability for rewards program
Other payables and accruals
Amount due to Group companies(1)
Deferred tax liabilities
Long-term debt
Long-term lease liability
Other long-term liabilities
Total liabilities
Total shareholders’ equity
Total liabilities and shareholders’ equity
As of December 31, 2021
Primary
Beneficiaries
of
Consolidated
Affiliated
Chinese
Entities
Consolidated
Affiliated
Chinese
Entities and
their
Subsidiaries Eliminations
(RMB in millions)
Consolidated
Totals
Trip.com
Group
Limited
Other
Subsidiaries
11
—
—
—
—
45
18,251
—
—
—
—
11,574
101,989
—
—
—
—
11,580
859
20,677
2,002
1,336
6,597
13,889
152
—
40
4,944
22,426
12,891
58,966
12,627
649
1,149
131,870 170,784
15,189
11,297
3,853
—
86
—
1,921
—
542
—
5,530
—
319
—
3,642
46
32,280
578
3,432
—
658
10,435
340
—
165
—
22,356
67,957
109,514 102,827
131,870 170,784
15
1,143
123
7,277
167
101
182
7,207
33
—
46
532
6,981
10,631
48
—
93
187
34,751
8,070
222
36
1,744
470
113
15
1,140
2,353
—
—
39
—
14,202
20,549
34,751
7,084
396
1,612
2,480
228
2,208
8,810
186
25
—
58
3,980
—
—
—
—
—
—
(48,157)
—
—
—
—
—
— (125,511)
—
339
—
333
—
35
—
348
28,122 (173,668)
—
5,310
—
1,944
—
16
—
229
—
53
—
1,892
—
66
—
2,473
(48,157)
12,946
—
95
—
—
—
21
—
—
25,045
(48,157)
3,077 (125,511)
28,122 (173,668)
19,818
1,378
29,566
4,649
1,665
9,032
—
371
25
86
5,534
44,961
—
59,353
12,960
777
1,684
191,859
39,866
6,019
138
3,894
1,065
7,535
400
7,301
—
3,527
11,093
400
165
81,403
110,456
191,859
Table of Contents
ASSETS
Cash and cash equivalents
Restricted cash
Short-term investments
Accounts receivable
Due from related parties
Prepayments and other current assets
Amount due from Group companies(1)
Long-term deposits and prepayments
Long-term receivables due from related parties
Land use rights
Property, equipment and software
Investments
Investment in subsidiaries and consolidated affiliated Chinese
entities(2)
Goodwill
Intangible assets
Right-of-use assets
Deferred tax assets
Total assets
LIABILITIES
Short-term debt and current portion of long-term debt
Accounts payable
Due to related parties
Salary and welfare payable
Taxes payable
Advances from customers
Accrued liability for rewards program
Other payables and accruals
Amount due to Group companies(1)
Deferred tax liabilities
Long-term debt
Long-term lease liability
Other long-term liabilities
Total liabilities
Total shareholders’ equity
Total liabilities and shareholders’ equity
As of December 31, 2020
Primary
Beneficiaries
of
Consolidated
Affiliated
Chinese
Entities
Consolidated
Affiliated
Chinese
Entities and
their
Subsidiaries Eliminations
(RMB in millions)
Consolidated
Totals
821
121
5,765
17
143
742
6,097
41
—
47
558
5,096
8,634
48
—
23
156
28,309
5,140
202
65
1,568
465
137
28
924
172
—
700
15
2
9,418
18,891
28,309
7,011
146
2,529
2,728
282
3,474
8,690
203
25
—
53
5,924
—
—
—
—
—
—
(50,705)
—
—
—
—
—
—
340
356
9
314
32,084
(121,952)
—
—
—
—
(172,657)
3,737
1,753
56
302
172
1,723
68
1,944
18,555
101
147
1
1
28,560
3,524
32,084
—
—
—
—
—
—
—
—
(50,705)
—
—
—
—
(50,705)
(121,952)
(172,657)
18,096
1,319
24,820
4,119
1,802
7,855
—
411
25
88
5,780
47,943
—
59,353
13,256
987
1,395
187,249
33,665
4,506
241
3,534
1,217
7,605
478
7,123
—
3,574
22,718
618
403
85,682
101,567
187,249
Trip.com
Group
Limited
Other
Subsidiaries
12
—
—
—
—
166
19,317
—
—
—
—
12,996
10,252
1,052
16,526
1,374
1,377
3,473
16,601
167
—
41
5,169
23,927
99,844
—
—
—
—
132,335
13,474
58,965
12,900
955
925
167,178
9,131
—
—
—
—
—
—
270
578
—
21,808
—
—
31,787
100,548
132,335
15,657
2,551
120
1,664
580
5,745
382
3,985
31,400
3,473
63
602
400
66,622
100,556
167,178
Notes:
(1)
(2)
It represents the elimination of intercompany balances among Trip.com Group Limited, other subsidiaries, primary beneficiaries of consolidated affiliated Chinese entities, and
consolidated affiliated Chinese entities and their subsidiaries for treasury cash management purpose.
It represents the elimination of the investment among Trip.com Group Limited, other subsidiaries, primary beneficiaries of consolidated affiliated Chinese entities, and consolidated
affiliated Chinese entities and their subsidiaries.
16
Table of Contents
Condensed Consolidated Cash Flows
Net cash (used in)/provided by operating activities(1)
Capital contribution to Group companies
Cash flows of loan funding provided to group companies, net of
repayments received
Other investing activities
Net cash provided by/(used in) investing activities
Proceeds from issuance of ordinary shares net of issuance cost
Capital contribution from Group companies
Cash flows of loan funding received from group companies, net
of repayments made
Other financing activities
Net cash (used in)/provided by financing activities
Net cash used in operating activities(1)
Capital contribution to Group companies
Cash flows of loan funding provided to group companies, net of
repayments received
Other investing activities
Net cash (used in)/provided by investing activities(2)
Capital contribution from Group companies
Cash flows of loan funding received from group companies, net
of repayments made
Other financing activities
Net cash provided by/(used in) financing activities(2)
For the Year Ended December 31, 2021
Primary
Beneficiaries
of
Consolidated
Affiliated
Chinese
Entities
Consolidated
Affiliated
Chinese
Entities and
their
Subsidiaries
(RMB in millions)
Eliminating
Adjustments
Consolidated
Totals
2,189
(1,100)
—
(3,487)
(4,587)
—
—
492
2,230
2,722
1,271
—
(434)
1,052
618
—
—
(3,789)
2,223
(1,566)
—
1,100
(3,932)
—
(2,832)
—
(1,100)
3,932
—
2,832
2,475
—
—
(4,148)
(4,148)
7,984
—
—
(4,065)
3,919
For the Year Ended December 31, 2020
Primary
Beneficiaries
of
Consolidated
Affiliated
Chinese
Entities
Consolidated
Affiliated
Chinese
Entities and
their
Subsidiaries
(RMB in millions)
(30)
(47)
(597)
—
—
(1,056)
(1,103)
710
(1,613)
40
(863)
817
(468)
349
—
(2,195)
2,450
255
Eliminating
Adjustments
Consolidated
Totals
—
1,660
(4,267)
—
(2,607)
(1,660)
4,267
—
2,607
(3,823)
—
—
(3,821)
(3,821)
—
—
6,025
6,025
Other
Subsidiaries
(243)
—
3,297
(1,713)
1,584
—
1,100
(635)
(218)
247
Other
Subsidiaries
(2,159)
(710)
3,808
(2,297)
801
950
(459)
1,251
1,742
Trip.com
Group
Limited
(RMB in millions)
(742)
—
1,069
—
1,069
7,984
—
—
(8,300)
(316)
Trip.com
Group
Limited
(1,037)
(903)
(358)
—
(1,261)
—
—
2,284
2,284
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For the Year Ended December 31, 2019
Trip.com
Group
Limited
Other
Subsidiaries
Primary
Beneficiaries
of
Consolidated
Affiliated
Chinese
Entities
Consolidated
Affiliated
Chinese
Entities and
their
Subsidiaries
(RMB in millions)
Eliminating
Adjustments
Consolidated
Totals
Net cash (used in)/provided by operating activities(1)
Capital contribution to Group companies
Cash flows of loan funding provided to group companies, net of
repayments received
Other investing activities
Net cash provided by/(used in) investing activities(2)
Capital contribution from Group companies
Cash flows of loan funding received from group companies, net of
repayments made
Other financing activities
Net cash (used in)/provided by financing activities(2)
(695)
(29)
4,907
(1,105)
3,638
(966)
(517)
—
—
2,100
7,333
—
6,547
2
6,520
—
8,655
(3,489)
4,061
57
—
3,055
2,089
1,105
2,039
(1,981)
58
938
(17,241)
—
(15,141)
(2,100)
—
(7,041)
(7,041)
(8,586)
(3,838)
(12,367)
(7,648)
1,410
(5,133)
(1,007)
213
144
17,241
—
15,141
—
(2,413)
(2,413)
—
—
(9,256)
(9,256)
Notes:
(1)
(2)
For the years ended December 31, 2019, 2020 and 2021, cash paid by the consolidated affiliated Chinese entities to the primary beneficiaries of consolidated affiliated Chinese entities
for service fees were RMB1.6 billion, RMB1.7 billion and RMB1.7 billion, respectively.
The net cash provided by investing activities and financing activities of the consolidated affiliated Chinese entities and their subsidiaries for the years ended December 31, 2019 and
2020 have been revised from the amounts previously disclosed in the notes to the financial statements.
A. Reserved
B. Capitalization and Indebtedness
Not applicable.
C. Reasons for the Offer and Use of Proceeds
Not applicable.
D. Risk Factors
Summary of Risk Factors
An investment in our ADSs or ordinary shares involves significant risks. Below is a summary of material risks we face, organized under relevant
headings. These risks are discussed more fully in “Item 3. Key Information—D. Risk Factors.”
Risks Relating to Our Business and Industry
•
•
•
•
•
•
Pandemics (such as COVID-19), epidemics, or fear of spread of contagious diseases could disrupt the travel industry and our operations,
which could materially and adversely affect our business, financial condition, and results of operations.
Our business could suffer if we do not successfully manage our potential future growth, or if we are unable to execute our strategies
effectively.
We have sustained losses in the past and may experience earnings declines or net losses in the future.
Our business is sensitive to global economic conditions. A severe or prolonged downturn in the global or Chinese economy may have a
material and adverse effect on our business, and may materially and adversely affect our growth and profitability.
General declines or disruptions in the travel industry may materially and adversely affect our business and results of operations.
If we are unable to maintain existing relationships with ecosystem partners and strategic alliances, or unable to establish new arrangements
with ecosystem partners and strategic alliances at or on favorable terms or at terms similar to those we currently have, or at all, our
business, market share, and results of operations may be materially and adversely affected.
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•
•
•
•
•
Strategic acquisition of complementary businesses and assets create significant challenges, such as dilutive effect on our equity securities
and impact on our financial performance, that may materially and adversely affect our business, reputation, results of operations, and
financial condition.
Our strategy to invest in complementary businesses and assets and establish strategic alliances involves significant risk and uncertainties
that may have a material adverse effect on our business, reputation, financial condition, and results of operations.
We have incurred net current liabilities and net operating cash outflow in the past, and may not be able to achieve or maintain net assets or
net operating cash inflow in the future.
We recorded a significant amount of goodwill and indefinite lived intangible assets in connection with our strategic acquisitions and
investments, and we may incur material impairment charges to our goodwill and indefinite lived intangible assets if the recoverability of
these assets become substantially reduced.
If we do not compete successfully against new and existing competitors, we may lose our market share, and our business may be materially
and adversely affected.
Risks Relating to Our Corporate Structure
•
•
•
•
PRC laws and regulations restrict foreign investment in the travel agency and value-added telecommunications businesses, and substantial
uncertainties exist with respect to the application and implementation of PRC laws and regulations.
If our consolidated affiliated Chinese entities violate our contractual arrangements with them, our business could be disrupted, our
reputation may be harmed and we may have to resort to litigation to enforce our rights, which may be time-consuming and expensive.
The principal shareholders of our consolidated affiliated Chinese entities have potential conflict of interest with us, which may adversely
affect our business.
Our business may be significantly affected by the PRC Foreign Investment Law.
Risks Relating to Doing Business in China
•
•
•
•
•
Adverse changes in economic and political policies of the PRC government could have a material adverse effect on the overall economic
growth of China, which could adversely affect our business.
The PRC government’s significant oversight and discretion over our business operation could result in a material adverse change in our
operations and the value of our ADSs and ordinary shares.
The PCAOB is currently unable to inspect our auditor in relation to their audit work performed for our financial statements and the
inability of the PCAOB to conduct inspections over our auditor deprives our investors with the benefits of such inspections.
Our ADSs will be prohibited from trading in the United States under the Holding Foreign Companies Accountable Act, or the HFCAA, in
2024 if the PCAOB is unable to inspect or fully investigate auditors located in China, or in 2023 if proposed changes to the law are
enacted. The delisting of our ADSs, or the threat of their being delisted, may materially and adversely affect the value of your investment.
The approval of and the filing with the CSRC or other PRC government authorities may be required in connection with our offshore
offerings in the future under PRC law, and, if required, we cannot predict whether or for how long we will be able to obtain such approval
or complete such filing.
General Risks Relating to Our Ordinary Shares and ADSs
•
•
•
•
The trading prices of our listed securities have been and are likely to continue to be volatile, which could result in substantial losses to our
investors.
We adopt different practices as to certain matters as compared with many other companies listed on the Hong Kong Stock Exchange.
Substantial future sales or perceived potential sales of our ordinary shares, ADSs or other equity securities in the public market could cause
the prices of our listed securities to decline.
Provisions of our convertible notes could discourage an acquisition of us by a third party.
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Risks Relating to Our Business and Industry
Pandemics (such as COVID-19), epidemics, or fear of spread of contagious diseases could disrupt the travel industry and our operations, which
could materially and adversely affect our business, financial condition, and results of operations.
Global pandemics, epidemics in China or elsewhere in the world, or fear of spread of contagious diseases, such as Ebola virus disease (EVD),
coronavirus disease 2019 (COVID-19), Middle East respiratory syndrome (MERS), severe acute respiratory syndrome (SARS), H1N1 flu, H7N9 flu,
and avian flu could disrupt the travel industry and our business operations in China and elsewhere in the world, reduce or restrict demand for travel and
travel-related products and services, or result in regional or global economic distress, which may materially and adversely affect our business, financial
condition, and results of operations. Any one or more of these events or recurrence may adversely affect our sales results, or even for a prolonged period
of time, which could materially and adversely affect our business, financial condition, and results of operations.
The current COVID-19 pandemic has already adversely affected many aspects of our business. Since the outbreak of the COVID-19 pandemic,
we have experienced, and may continue to experience, a significant decline in travel demand resulting in significant user cancelations and refund
requests and reduced new orders relating to international and domestic travel and lodging. The supply of domestic transportation tickets and
international air tickets were also adversely and significantly affected in response to comprehensive containment measures in China and other
international regions. We have actively assisted our users in their cancelation and refund requests and have been working with our ecosystem partners to
prepare for difficult market conditions, for which we have incurred and may continue to incur significant cash outflows.
Our China business showed strong recovery momentum in 2021. However, we cannot assure you that the COVID-19 pandemic can be eliminated
or contained in the near future or a similar outbreak will not occur again. For example, in early 2022, the Omicron variant of COVID-19 made its
presence felt in China, especially in Jilin Province, Shenzhen and Shanghai where strict lockdowns were imposed. Due to the restrictive measures
implemented to curb COVID-19 cases, precautionary measures, including varying levels of travel restrictions, quarantine and testing requirements, and
encouragement of reduced travel, were reinstated in China in 2021 and early 2022 in response to emerged cases in various regions of China. These
measures reduce users’ demand for our products, and materially and adversely affected our results of operations in 2021 and potentially beyond. We
cannot assure you when these precautionary measures will be lifted. If the COVID-19 pandemic and the resulting disruption to our business were to
extend over a prolonged period, it could materially and adversely affect our business, financial condition, and results of operations.
In addition, our China-based facilities underwent temporary yet prolonged closure in February 2020, and most of our employees had worked from
home for weeks before they reported back to work, both as part of China’s nationwide efforts to contain the spread of the COVID-19. Our business
facilities in Shanghai, China were temporarily closed again starting from April 2022 and remained closed up to the date of this annual report, as a result
of local government’s efforts to contain the resurgence of the COVID-19. Even though our business has been operational in 2021 and up to the date of
this annual report, if the COVID-19 situation deteriorates, our service capacity and operational efficiency may be adversely affected again due to
insufficient workforce as a result of temporary travel restrictions in China and the necessity to comply with disease control protocols in our business
facilities. Our ecosystem partners’ abilities to timely deliver products and services and respond to rescheduling or cancelation requests have been, and
again may be, adversely affected for similar reasons, especially those located in critical regions in China.
The global spread of COVID-19 have also affected our overseas ecosystem partners and employees working outside China. While the duration of
this disruption to our business and related financial impacts cannot be reasonably estimated at this time, we expect that our overseas business will
continue to be adversely affected in 2022.
The pandemic drove a significant decline in travel demand resulting in reservation cancelations and reduced new orders. In addition, the
allowance for credit losses and impairments of long-term investments both increased. In response to the COVID-19 pandemic, we have swiftly adopted
cost control measures to mitigate a significant slowdown in user demand. For the year ended December 31, 2021, our revenues were still materially and
adversely affected as a result of the domestic and international travel restrictions and significant incremental costs and expenses incurred to facilitate our
users’ cancelations and refund requests, as compared to the period prior to the outbreak of COVID-19. Our net revenues for the year ended
December 31, 2021 increased by 9% as compared to the year ended December 31, 2020 and we recorded net loss of RMB645 million in 2021. Our net
revenues in 2020 decreased by 49% from 2019, and we recorded net loss of RMB3.3 billion in 2020. In addition, we made provisions for the expected
difficulty in collection of receivables, which resulted in additional allowance for expected credit losses from the receivables due from our customers. In
2020, we made significant downward adjustments and impairment to our long-term investments as the impacts of the COVID-19 pandemic on certain of
our long-term investments are considered to be other than temporary.
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While the duration and the development of the pandemic is difficult to predict, our performance in terms of our key financial metrics such as
revenues and net loss generally improved in 2021, as compared to 2020, benefiting from the containment of the COVID-19 pandemic in China.
Quarantine measures or travel restrictions imposed by government authorities may significantly impede cross-border travel. We have seen a slower
recovery of the international travel market and, in turn, a slower recovery of our international business. We have noted Chinese travelers shifting their
preferences towards emerging demand for short-haul travel, local trips, and domestic boutique and premium accommodation experiences. We have
introduced novel products in order to capture these emerging trends and have proactively leveraged our live streaming function to promote local
attractions and activities. However, we cannot assure you that these initiatives will be effective as expected, or that we will be able to act promptly to
cater to the travelers’ emerging traveling preferences in the future. We will continue to monitor and evaluate the financial impacts on our financial
condition, results of operations, and cash flows in future periods. In the event of prolonged impact of the COVID-19 pandemic on our financial
condition and cash flows, we cannot assure you that additional financing will be available to us on reasonable terms, or at all, should we require it. The
global spread of COVID-19 pandemic in a significant number of countries around the world, such as the United States, has resulted in, and may
intensify, global economic distress, and the extent to which it may affect our financial condition, results of operations, and cash flows will depend on
future developments, which are highly uncertain and cannot be predicted. In addition, the recent financial turmoil leading to vitality in the financial and
securities markets, especially since the COVID-19 pandemic, has generally made access to capital less certain and increased the cost of obtaining new
capital. As we manage through the slowdown in our business due to the COVID-19 pandemic, we cannot assure you that additional financing will be
available to us on reasonable terms, or at all.
Our business could suffer if we do not successfully manage our potential future growth, or if we are unable to execute our strategies effectively.
Our business has grown significantly as a result of both organic growth of existing operations and acquisitions, and, despite the current COVID-19
pandemic, we may experience such growth from time to time in the future. We have significantly expanded, and may further expand, our operations and
workforce, as a result of the growth of our service offerings, user base, and geographic coverage. For example, we have invested in, and may continue to
invest in, organic growth by rolling out new business initiatives focusing on a diverse range of areas including expanding our one-stop travel offerings
and upgrading our content capabilities. For the year ended December 31, 2021, we invested RMB9.0 billion (US$1.4 billion) in product development. If
such new business initiatives fail to perform as expected, our financial condition and results of operations could be adversely affected. Our growth to
date has placed, and our anticipated future operations will continue to place, significant strain on our management, systems, and resources. In addition to
training and managing our workforce, we will need to continue to improve and develop our financial and managerial controls and our reporting systems
and procedures. We cannot assure you that we will be able to efficiently or effectively manage the growth of our operations, and any failure to do so may
limit our future growth and hamper our business strategy.
We are growing our global presence through a combination of owned brands, direct investments as well as strategic partnerships. As we continue
to increase our product and service offerings, we will further upgrade our content capabilities and deliver more appealing content in new and diversified
formats, including live streaming, to improve user engagement. In addition, we will continue to invest in AI and cloud technologies, and further enhance
our technology and cloud infrastructure. All these efforts will require significant managerial, financial and human resources. We cannot assure you that
we will be able to effectively manage our growth or to execute all these strategies successfully or that our new business initiatives will be successful. If
we are not able to manage our growth or execute our strategies effectively, our expansion may not be successful and our business and prospects may be
materially and adversely affected.
We have sustained losses in the past and may experience earnings declines or net losses in the future.
We sustained net losses in the past, and we cannot assure you that we can sustain profitability or avoid net losses in the future. Due to the impact
of the COVID-19 pandemic, we recorded net loss of RMB3.3 billion and RMB645 million in 2020 and 2021, respectively. Although we swiftly adopted
cost control measures in response to the COVID-19 pandemic, our operating expenses may still increase in the future and the degree of increase in these
expenses is largely based on anticipated growth, revenue trends and competitive pressure. As a result, any decrease or delay in generating additional
sales volume and revenues and increase in our operating expenses may result in substantial operating losses. Moreover, consolidation of Qunar’s
financial statements starting from December 31, 2015 had negatively impacted our financial statements previously, which may happen again in the
future.
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Our business is sensitive to global economic conditions. A severe or prolonged downturn in the global or Chinese economy may have a material and
adverse effect on our business, and may materially and adversely affect our growth and profitability.
The COVID-19 pandemic may continue to have a severe and negative impact on the Chinese and the global economy. Even before the outbreak of
the COVID-19, the global macroeconomic environment was facing numerous challenges. The growth rate of the Chinese economy had already been
slowing since 2010. There is considerable uncertainty over the long-term effects of the expansionary monetary and fiscal policies which had been
adopted by the central banks and financial authorities of some of the world’s leading economies, including the United States and China. The recent
conflict in Ukraine and the imposition of broad economic sanctions on Russia could raise energy prices and disrupt global markets. Unrest, terrorist
threats, and the potential for war in the Middle East and elsewhere may increase market volatility across the globe. There have also been concerns about
the relationship between China and certain other countries, including the surrounding Asian countries, which may potentially have economic effects. In
particular, there is significant uncertainty about the future relationship between the United States and China with respect to trade policies, treaties,
government regulations, and tariffs. Economic conditions in China are sensitive to global economic conditions, as well as changes in domestic economic
and political policies and the expected or perceived overall economic growth rate in China. Any severe or prolonged slowdown in the global or Chinese
economy may materially and adversely affect our business, results of operations, and financial condition.
Our business and operations are primarily based in China and most of our revenues are derived from our operations in China. Accordingly, our
financial results have been, and are expected to continue to be, affected by the economy and travel industry in China. Since we derive the majority of our
revenues from accommodation reservation, transportation ticketing, and packaged-tour and in-destination activity services in China, any severe or
prolonged slowdown in the global or Chinese economy or the recurrence of any financial disruptions could reduce expenditures for travel, which in turn
may adversely affect our results of operations and financial condition in a number of ways. For example, the weakness in the economy could erode
consumer confidence which, in turn, could result in changes to consumer spending patterns relating to travel products and services. If consumer demand
for travel products and services we offer decreases, our revenues may decline. Furthermore, continued turbulence in the international markets may
adversely affect our ability to access the capital markets to meet liquidity needs.
General declines or disruptions in the travel industry may materially and adversely affect our business and results of operations.
Our business is significantly affected by the trends that occur in the travel industry in China and globally, including the accommodation
reservation, transportation ticketing, and packaged-tour and in-destination activity sectors. As the travel industry is highly sensitive to business and
personal discretionary spending levels, it tends to decline during general economic downturns. The recent worldwide recession has led to a weakening in
the demand for travel services. Other trends or events that tend to reduce travel and are likely to reduce our revenues include:
•
•
•
•
•
•
•
•
actual or threatened war or terrorist activities;
the COVID-19 pandemic;
an outbreak of EVD, MERS, SARS, H1N1 flu, H7N9 flu, and avian flu, or any other serious contagious diseases;
increasing prices in the hotel, transportation ticketing, or other travel-related sectors;
increasing occurrence of travel-related accidents;
political unrest, civil strife, or other geopolitical uncertainty;
natural disasters or poor weather conditions, such as hurricanes, earthquakes, or tsunamis, as well as the physical effects of climate change,
which may include more frequent or severe storms, flooding, rising sea levels, water shortage, droughts, and wildfires; and
any travel restrictions in China and elsewhere in the world, such as entry restrictions related to the COVID-19 pandemic and quarantine
measures or other security procedures implemented in connection with any major events in China and elsewhere in the world.
We could be severely and adversely affected by declines or disruptions in the travel industry and, in many cases, have little or no control over the
occurrence of such events. Such events could result in a decrease in demand for our travel and travel-related products and services. This decrease in
demand, depending on the scope and duration, could significantly and adversely affect our business and financial performance over the short and long
term. For a discussion of impact of the COVID-19 pandemic on our business, see “—Pandemics (such as COVID- 19), epidemics, or fear of spread of
contagious diseases could disrupt the travel industry and our operations, which could materially and adversely affect our business, financial condition,
and results of operations.”
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If we are unable to maintain existing relationships with ecosystem partners and strategic alliances, or unable to establish new arrangements with
ecosystem partners and strategic alliances at or on favorable terms or at terms similar to those we currently have, or at all, our business, market
share, and results of operations may be materially and adversely affected.
We rely on ecosystem partners, such as hotels and airlines, and other third party agents to make their services available to users through us, and
our business prospects depend on our ability to maintain and expand relationships with ecosystem partners and other third party agents. If we are unable
to maintain satisfactory relationships with our existing ecosystem partners, or if our ecosystem partners establish similar or more favorable relationships
with our competitors, or if our ecosystem partners increase their competition with us through their direct sales, or if any one or more of our ecosystem
partners significantly reduce participation in our services for a sustained period of time or completely withdraw participation in our services, our
business, market share, and results of operations may be materially and adversely affected. To the extent any of those major or popular ecosystem
partners ceased to participate in our services in favor of one of our competitors’ systems or decided to require consumers to purchase services directly
from them, our business, market share, and results of operations may suffer.
Our business depends significantly upon our ability to contract with hotels in advance for the guaranteed availability of certain hotel rooms. We
rely on hotel partners to provide us with rooms at discounted prices. However, our contracts with our hotel partners are not exclusive and most of the
contracts must be renewed from time to time. We cannot assure you that our hotel partners will renew our contracts in the future on favorable terms or
terms similar to those we have agreed to. The hotel partners may reduce the commission rates on bookings made through us. Furthermore, in order to
maintain and grow our business and to effectively compete with many of our competitors in all potential markets, we will need to establish new
arrangements with hotels and accommodations of all ratings and categories in our existing markets and in new markets. We cannot assure you that we
will be able to identify appropriate hotels or enter into arrangements with those hotels on favorable terms, if at all. Such failure could harm the growth of
our business and adversely affect our operating results and financial condition, which consequently will impact the trading price of our ADSs and
ordinary shares.
We derive revenues and other significant benefits from our arrangements with major domestic airlines in China and international airlines. Our
airline ticket partners allow us to book and sell tickets on their behalf and collect commissions on tickets booked and sold through us. Although we
currently have supply relationships with these airlines, they also compete with us for ticket bookings and have entered into similar arrangements with
many of our competitors and may continue to do so in the future. Such arrangements may be on better terms than we have. On July 1, 2016, the four
largest airlines in China announced that third-party ticketing agents are prohibited from selling tickets for domestic flights on third-party platforms, such
as ours. Additionally, on July 1, 2016, most major domestic airlines also replaced their commissions and rebate incentives completely with a reduced,
fixed “admin fee” per ticket. The loss of ecosystem partner relationships or further adverse changes in major business terms with our ecosystem partners
would materially impair our operating results and financial condition as we would lose an increasingly significant source of our revenues.
We generated part of our revenues through commissions from ecosystem partners that we form strategic alliances with, including our hotel
partners, airline ticket partners and other ecosystem partners. We cannot assure you, however, that we will be able to successfully establish and maintain
strategic alliances with third parties which are effective and beneficial for our business. Our inability to do so could have a material adverse effect on our
market penetration, revenue growth and profitability.
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Strategic acquisition of complementary businesses and assets create significant challenges, such as dilutive effect on our equity securities and
impact on our financial performance, that may materially and adversely affect our business, reputation, results of operations, and financial
condition.
We have made and intend to continue to make strategic acquisitions in the travel industry in Greater China and overseas. For example, in October
2015, we completed a share exchange transaction with Baidu Inc., or Baidu, whereby we obtained approximately 45% of the aggregate voting interest of
Qunar in exchange for our newly issued ordinary shares. Subsequently, we issued ordinary shares represented by ADSs to certain special purpose
vehicles holding shares solely for the benefit of certain Qunar employees and, in return, we received Class B ordinary shares of Qunar from these
employees. We directly injected these shares to a third-party investment entity dedicated to investing in business in China. From an accounting
perspective, we consolidated the financial statements of these non-U.S. investment entities and started to consolidate Qunar’s financial statements from
December 31, 2015. In October 2016, we participated as a member in the buying consortium in Qunar’s going-private transaction and rolled our then
existing equity stake into the entity that wholly owns Qunar upon the completion of the transaction in February 2017. In addition, in December 2016, we
consummated an acquisition transaction whereby shares held by nearly all of the shareholders of Skyscanner, a leading global travel search site
headquartered in Edinburgh, United Kingdom, were acquired by Trip.com Group (then known as Ctrip.com International, Ltd.).
If we are presented with appropriate opportunities, we may continue to acquire complementary businesses and assets in the future. However,
strategic acquisitions and the subsequent integration of new businesses and assets into our own would require significant attention from our management
and could result in a diversion of resources from our existing business, which in turn could adversely affect our business operations. In addition,
acquisitions could result in potential dilutive issuances of equity securities, use of substantial amounts of cash, and exposure to potential ongoing
financial obligations and unforeseen or hidden liabilities of the acquired business. The cost and duration of, and difficulties in, integrating newly
acquired businesses and managing a larger overall business could also materially exceed our expectations. Moreover, we may not be able to achieve our
intended strategic strategies and record substantial impairment charges to goodwill, if we fail to successfully integrate the newly acquired business or
manage a larger business. Any such negative developments could materially and adversely affect our business, reputation, results of operations, and
financial condition.
Our strategy to invest in complementary businesses and assets and establish strategic alliances involves significant risk and uncertainties that may
have a material adverse effect on our business, reputation, financial condition, and results of operations.
As part of our plan to expand our product and service offerings, we have made and intend to make strategic investments in the travel service
industries in Greater China and overseas. In addition to our transactions relating to Qunar and Skyscanner described elsewhere in this annual report, the
investments and acquisitions we made in the past few years include, among others: (i) our acquisition of 38% share capital of eLong, Inc. in May 2015,
and a subsequent equity investment in the Tongcheng Travel Holdings Limited (formerly known as Tongcheng-Elong Holdings Limited) (SEHK: 0780)
in March 2018 in exchange for our prior holdings in eLong, Inc.; (ii) investment of approximately RMB3.0 billion in approximately 466 million A
shares of China Eastern Airlines in a private placement; (iii) the exchange of our previously held equity interest in Homeinns Hotel Group for 22%
equity interest of BTG Hotels (Group) Co., Ltd.; (iv) our share exchange with Naspers Limited and our investment in the ordinary shares and Class B
shares of MakeMyTrip Limited, or MakeMyTrip, in August 2019; (v) our acquisition of substantially all of the remaining equity interest of an offline
travel agency company in which we previously held approximately 48% equity interest in May 2018; and (vi) other investments including Tujia, a
leading alternative accommodation platform in China. In addition, in November 2019, we and TripAdvisor, Inc. (Nasdaq: TRIP), or TripAdvisor, agreed
on a strategic partnership to expand global cooperation through various contracts. We and TripAdvisor agreed through our respective subsidiaries to
form and jointly control a joint venture. To broaden our product offerings and enrich our platform content, we and TripAdvisor have agreed to share
inventory in travel categories by means of presenting travel product offerings and contents of both companies on our platform as well as on the platform
of TripAdvisor. In November 2019, we obtained control of an online travel agency company in which we previously had held 51% equity interest with
substantive participating rights being held by the non-controlling shareholder. For a discussion of our investments and acquisitions, see “Item 4.
Information on the Company — B. Business Overview — Strategic Investments and Acquisitions.”
If the ADS or share prices of the public companies that we have invested in or may invest in the future which are classified as equity securities
with readily determinable fair values investments decline and become lower than our share purchase prices, as have happened historically, we could
record changes in fair value recorded in the income statement under U.S. GAAP, which in turn would adversely affect our financial results for the
relevant periods. In addition, if any of our investees in which our investments are classified as equity method investments incur net losses in the future,
we will share their net losses proportionate to our equity interest in them.
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Our strategic investments could also subject us to other uncertainties and risks, and our failure to address any of these uncertainties and risks,
among others, may have a material adverse effect on our financial condition and results of operations:
•
•
•
•
•
•
diversion of our resources and management attention;
high acquisition and financing costs;
failure to achieve our intended objectives or benefits in making these investments or revenue-enhancing opportunities;
exposure to liabilities, third-party claims, or legal proceedings involving our invested or acquired business;
potential claims or litigation regarding our board’s exercise of its duty of care and other duties required under applicable law in connection
with any of our significant investments approved by the board; and
failure to be in full compliance with applicable laws, rules and regulations.
In particular, our strategy of investing in a competing business could be adversely affected by uncertainties in the implementation and enforcement
of the PRC Anti-Monopoly Law. Under the PRC Anti-Monopoly Law, companies undertaking mergers, acquisitions, or other transactions that may be
deemed as concentrations in China must notify the anti-monopoly law enforcement authority of the PRC State Council, which currently is the State
Administration for Market Regulation, or the SAMR, in advance of any transaction where the parties’ revenues in the China market and global market
exceed certain thresholds and the buyer would obtain control of, or decisive influence over, the target. There are numerous factors the anti-monopoly
law enforcement authority considers in determining “concentrations,” depending on certain criteria, the anti-monopoly law enforcement authority will
conduct anti-monopoly review of transactions in respect of which it was notified, including (1) merger of undertakings; (2) acquisition of control over
other undertakings by an undertaking by acquiring equities or assets; or (3) acquisition of control over, or the possibility of exercising decisive influence
on, other undertakings by an undertaking by contract or by any other means. In light of the uncertainties relating to the interpretation, implementation
and enforcement of the PRC Anti-Monopoly Law, we cannot assure you that the anti-monopoly law enforcement authority will not deem our past and
future acquisitions or investments, including the ones referenced herein or elsewhere in this annual report, to have met the filing criteria under the PRC
Anti-Monopoly Law and therefore demand a filing for merger review. Before the SAMR issued the Anti-Monopoly Guidelines for the Internet Platform
Economy Sector, or the Anti-Monopoly Guidelines, on February 7, 2021 that clarifies for the first time the filing procedures is applicable to the
concentrations involving variable interest structure, there had been limited cases of the anti-monopoly law enforcement authority’s anti-monopoly
review of filings involving companies with a “variable interest entity” structure, or VIE structure, similar to ours. Our strategic investments, including
our historical transactions such as our acquisition of shares of Qunar in 2015 and any transactions to be contemplated in the future, have been and may
continue to be subject to relevant PRC regulatory authorities’ scrutiny from anti-monopoly perspective from time to time. There can be no assurance as
to whether the relevant PRC regulatory authorities will impose any penalties or other restrictive measures on us or any relevant parties for our strategic
investments. If we are deemed to have violated the PRC Anti-Monopoly Law for failing to file the notification of concentration and request for review,
we could be subject to a fine of up to RMB500,000, and the parts of the transaction causing the prohibited concentration could be ordered to be
unwound. Such unwinding could affect our business and financial results, and harm our reputation. Further, substantial uncertainties remain as to
whether our current business cooperation arrangements with Qunar would be deemed as violation to the PRC Anti-Monopoly Law in any material
aspects, which will be subject to the discretion of the relevant governmental authority. If any of our business cooperation arrangements with Qunar are
determined to have violated the PRC Anti-Monopoly Law, we could be subject to restrictive measures including an order to cease the relevant activities,
confiscation of illegal gains and fines of 1% to 10% of our sales revenue from the previous year.
In addition, we establish strategic alliances with various third parties to further our business purpose from time to time. Strategic alliances with
third parties could subject us to a number of risks, including risks associated with sharing proprietary information, non-performance by the counter-
party, an increase in expenses incurred in establishing new strategic alliances, inefficiencies caused by failure to integrate strategic partners’ businesses
with our own, and unforeseen levels of diversion of our resources and management attention, any of which may materially and adversely affect our
business.
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As a result of any of the above factors, any actual or perceived failure to realize the benefits we expected from these investments may materially
and adversely affect our business and financial results and cause the trading price of our ADSs and ordinary shares to decline.
We have incurred net current liabilities and net operating cash outflow in the past, and may not be able to achieve or maintain net assets or net
operating cash inflow in the future.
We had net current liabilities of RMB110 million (US$17 million) as of December 31, 2021, as compared to net current liabilities of
RMB358 million as of December 31, 2020, primarily due to the general improvement of our cash flows from operating activities in 2021, as well as the
proceeds from our public offering completed in April 2021. We had net current liabilities of RMB358 million as of December 31, 2020, as compared to
net current liabilities of RMB1.2 billion as of December 31, 2019, which was primarily due to a decrease in accounts payable of RMB7.8 billion and
accounts receivable of RMB3.5 billion as a result of the impact of the COVID-19 pandemic, partially offset by an increase in short-term debt and
current portion of long-term debt of RMB3.1 billion mainly due to the loan facility we obtained in 2020. There can be no assurance that we will not
experience liquidity problems in the future. We may not be able to fulfill our obligation in providing travel products or services to our users in respect of
advances from customers, the failure of which may negatively affect our cash flow position. If we fail to generate sufficient revenue from our
operations, or if we fail to maintain sufficient cash and financing, we may not have sufficient cash flows to fund our business, operations and capital
expenditure and our business and financial position will be adversely affected.
We had net cash provided by operating activities of RMB2.5 billion (US$388 million) in 2021. While we believe that we have sufficient working
capital to fund our current operations, we cannot guarantee that we will not experience cash outflow from our operating activities in the future. If we are
unable to maintain adequate working capital, we may default on our payment obligations and may not be able to meet our capital expenditure
requirements, which may have a material adverse effect on our business, financial condition and results of operations.
We recorded a significant amount of goodwill and indefinite lived intangible assets in connection with our strategic acquisitions and investments,
and we may incur material impairment charges to our goodwill and indefinite lived intangible assets if the recoverability of these assets become
substantially reduced.
In connection with our strategic acquisitions over the recent years, we recorded a significant amount of goodwill and indefinite lived intangible
assets booked in our financial statements. As of December 31, 2021, our goodwill was RMB59.4 billion (US$9.3 billion). ASC 350 “Intangibles—
Goodwill and Other” provides that intangible assets that have indefinite useful lives and goodwill will not be amortized but rather will be tested at least
annually for impairment. ASC 350 also requires that long-lived assets be reviewed for impairment whenever events or changes in circumstances indicate
that the carrying amount of an asset may not be recoverable from its undiscounted future cash flow. We operate our business with a single reporting unit.
We performed qualitative assessment by reviewing relevant events and circumstances, including macroeconomics conditions, industry and market
considerations, our overall financial performance and the share price, and concluded by weighing all these factors in their entirety to determine whether
it is necessary to perform the quantitative impairment test. For 2019, 2020 and 2021, we did not recognize any impairment charges for goodwill or
indefinite lived intangible assets, because there was no indicator of impairment identified in our qualitative assessment. If different judgments or
estimates had been utilized, however, material differences could have resulted in the amount and timing of the impairment charge. We may potentially
incur significant impairment charges if the recoverability of these assets become substantially reduced in the future. Any such impairment charges would
adversely affect our financial condition and results of operations. In addition, in the case that the trading price of our ADSs or ordinary shares decline as
a result of the potentially prolonged impacts from the COVID-19 pandemic or other factors, and the amount by which the share price exceeded the
carrying value of the reporting unit becomes minimal, it may be considered an indicator for us to perform interim goodwill impairment test and we may
need to recognize impairment on goodwill or other long-lived assets. See “Item 5. Operating and Financial Review and Prospects — A. Operating
Results— Critical Accounting Policies and Estimates— Goodwill, Intangible Assets, and Long-Lived Assets.”
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If we do not compete successfully against new and existing competitors, we may lose our market share, and our business may be materially and
adversely affected.
We compete primarily with other travel agencies, including domestic and foreign consolidators of hotel accommodation and airline tickets as well
as traditional travel agencies. In the future, we may also face increasing competition from new domestic travel agencies or international players that seek
to expand in China, hotels and airlines, as well as content platforms and social networks entering into the travel industry.
We may face more competition from hotels and airlines as they enter the discount rate market directly or through alliances with other travel
consolidators. In addition, international travelers have become an increasingly important user base. Competitors that have formed stronger strategic
alliances with overseas travel consolidators may have more effective channels to address the needs of travelers in China to travel overseas. Furthermore,
we do not have exclusive arrangements with our ecosystem partners. The combination of these factors means that potential entrants to our industry face
relatively low entry barriers.
In the past, certain competitors launched aggressive advertising campaigns, special promotions and engaged in other marketing activities to
promote their brands, acquire new users or to increase their market shares. In response to such competitive pressure, we started to take and may continue
to take similar measures and as a result will incur significant expenses, which in turn could negatively affect our operating margins in the quarters or
years when such promotional activities are carried out. For example, we launched a promotion program in recent years to offer certain selected
transportation tickets, hotel rooms, packaged tours, and in-destination activities as well as grant of e-coupons to our users in response to promotion
campaigns that our competitors have launched. Primarily as a result of the enhanced marketing efforts and additional investment in product
developments in response to the intensified market competition, our operational margin was negatively affected. In addition, some of our existing and
potential competitors may have competitive advantages, such as significantly larger active user base on mobile or other online platforms, greater
financial, marketing and strategic relationships, alliances or other resources or name recognition and technology capabilities, and may be able to imitate
and adopt our business model. In particular, other major internet platforms may benefit from the existing user base of their other services. These
platforms can utilize the traffic they already obtain and direct the users from their other services offerings to their travel services and further achieve
synergies effects. Furthermore, in order to attract and retain users and compete against our competitors, we have deployed significant resources in
research and development to enhance our AI and cloud technologies. However, we cannot assure you that the effectiveness of our data analytics
capabilities and technologies will be comparable or superior to our competitors continuously. If any of our competitors provides comparable or better
content feed to the users on their platforms, or if we are unable to provide sufficient quality content to our users’ satisfaction leveraging our data
analytics capabilities, we may suffer a decline in our user traffic. We cannot assure you that we will be able to successfully compete against new or
existing competitors. In the event we are not able to compete successfully, our business, results of operations, and profit margins may be materially and
adversely affected.
If we fail to further increase our brand recognition, we may face difficulty in maintaining existing and acquiring new users and business partners
and our business may be harmed.
We believe that maintaining and enhancing our brands depends in part on our ability to grow our user base and obtain new business partners.
Some of our potential competitors already have well-established brands in the travel industry. The successful promotion of our brands will depend
largely on our ability to maintain a sizeable and active user base, maintain relationships with our business partners, provide high-quality user support,
properly address user needs and handle user complaints and organize effective marketing and advertising programs. We are also subject to reputational
risks arising from user complaints. Users may raise complaints against us if they are dissatisfied with the travel products and services provided to them.
If we do not resolve the complaints effectively in a timely manner, our users may reduce their use of our platform and services, and may demand refund
or even further compensation from us by all practicable means, which could harm our reputation and brand image if these complaints are brought to
public sight, and materially and adversely affect our business, financial condition, and results of operations. If our user base significantly declines or
grows more slowly than our key competitors, the quality of our user support substantially deteriorates, or our business partners cease to do business with
us, we may not be able to cost-effectively maintain and promote our brands, and our business may be harmed.
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Negative publicity related to us or in general with respect to the travel industry could impair our reputation, which in turn could materially and
adversely affect our business, results of operations, and price of our ADSs or ordinary shares.
The reputation of our brands is critical to our business and competitiveness. Negative publicity with respect to us or the travel industry in general,
from time to time, whether or not we are at fault, including but not limited to those relating to our business, products and services, user experiences,
employee relationships and welfare, compliance with law, financial conditions or prospects, whether with or without merit, could impair our reputation
and adversely affect our business and operating results. Prospective users may be reluctant to engage in transactions with us if there is any negative
publicity in connection with the use of our services or products, the operation of our business and other aspects about us. In addition, the negative
publicity of any of our brands may extend far beyond the brand involved, especially due to our comprehensive presences in the travel industry in
general, to affect some or all of our other brands. Furthermore, negative publicity about other market players or isolated incidents, regardless of whether
or not it is factually correct or whether we have engaged in any inappropriate activities, may result in negative perception of our industry as a whole and
undermine the credibility we have established. Negative developments in the market may lead to tightened regulatory scrutiny and limit the scope of our
permissible business activities. We could lose significant number of users due to negative publicity with respect to us or the travel industry in general.
We rely on performance and brand marketing channels to generate a significant amount of traffic to our platforms and grow our business. From
time to time, we hire brand ambassadors to market our brands or our products and services that are important to our business. However, we cannot
assure you that the endorsement from our brand ambassadors or related advertisements will remain effective, that the brand ambassadors will remain
popular or their images will remain positive and compatible with the messages that our brand and products aim to convey. Furthermore, we cannot
assure you that we can successfully find suitable celebrities to replace any of our existing brand ambassadors if any of their popularities decline or if the
existing brand ambassadors are no longer able or suitable to continue the engagement, and termination of such engagements may have a significant
impact on our brand images and the promotion or sales of our products.
If any of the foregoing were to occur, our business, financial condition, results of operations, and price of our ADSs or ordinary shares could be
materially and adversely affected. We may incur additional costs to recover from the impact caused by the negative publicity, which may divert
management’s attention and other resources from our business and operations.
Our quarterly results are likely to fluctuate because of seasonality in the travel industry.
Our business experiences fluctuations, reflecting seasonal variations in demand for travel services. Consequently, our results of operations may
fluctuate from quarter to quarter. For example, the third quarter of each year generally contributes the highest portion of our annual net revenues
primarily due to the strong demand for both leisure and business travel activities during the summer.
Any failure to maintain satisfactory performance of our mobile platform, websites, and systems, particularly those leading to disruptions in our
services, could materially and adversely affect our business and reputation, and our business may be harmed if our infrastructure or technology is
damaged or otherwise fails or becomes obsolete.
The satisfactory performance, reliability, and availability of our infrastructure, including our mobile platform, websites, and systems, are critical to
the success of our business. Any system interruptions that result in the unavailability or slowdown of our mobile platform, websites, or other systems
and the disruption in our services could reduce the volume of our business and make us less attractive to users. Our customer service centers are
equipped with extensive computer and communications systems. Our technology platform and computer and communication systems are vulnerable to
damage or interruption from human error, computer viruses, fire, flood, power loss, telecommunications failure, physical or electronic break-ins,
hacking or other attempts at system sabotage, vandalism, natural disasters, and other similar events. For example, we experienced a network shut-down
for a few hours in May 2015 resulting in temporary disruption to our mobile platform and websites and user support, and a hotel booking system failure
for a few hours in October 2019 affecting temporary hotel booking services. No data leakage occurred in either incident. We have implemented
extensive measures to ensure prompt responses to any network shutdown, system failure, or similar incidents in the future, and to continue to update our
security protocol to protect our systems from any human error, third-party intrusions, viruses or hacker attacks, information or data theft, or other similar
activities. Other than the incidents mentioned above, we did not experience any material cybersecurity incident up to the date of this annual report.
However, we cannot assure you that unexpected interruptions to our systems will not occur again in the future. We do not carry business interruption
insurance to compensate us for losses that may occur as a result of such disruptions. In addition, any such future occurrences could reduce user
satisfaction levels, damage our reputation and materially and adversely affect our business.
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We use an internally developed booking software system that supports nearly all aspects of our booking transactions. Our business may be harmed
if we are unable to upgrade our systems and infrastructure quickly enough to accommodate future traffic levels, avoid obsolescence or successfully
integrate any newly developed or purchased technology with our existing system. Capacity constraints could cause unanticipated system disruptions,
slower response times, poor user support, impaired quality and speed of reservations and confirmations and delays in reporting accurate financial and
operating information. These factors could cause us to lose users and ecosystem partners, which would have a material adverse effect on our results of
operations and financial condition.
In addition, our future success will depend on our ability to adapt our products and services to the changes in technologies and internet user
behavior. For example, the number of people accessing the internet through mobile devices, including smart devices, mobile phones, tablets and other
hand-held devices, has increased in recent years, and we expect this trend to continue while 5G and more advanced mobile communications
technologies are broadly implemented. As we make our services available across a variety of mobile operating systems and devices, we are dependent
on the interoperability of our services with popular mobile devices and mobile operating systems that we do not control, such as Android, iOS, and
Windows. We ensure the interoperability of our services by optimizing our mobile apps and websites for different devices and operating systems and
implementing cloud technology to support unified backend operation of our platform. Any changes in such mobile operating systems or devices that
degrade the functionality of our services or give preferential treatment to competitive services could adversely affect usage of our services. Further, if
the number of platforms for which we develop our services increases, which is typically seen in a dynamic and fragmented mobile services market such
as China, it will result in an increase in our costs and expenses. In order to deliver high-quality services, it is important that our services work well
across a range of mobile operating systems, networks, mobile devices, and standards that we do not control. If we fail to develop products and
technologies that are compatible with all mobile devices and operating systems, or if the products and services we develop are not widely accepted and
used by users of various mobile devices and operating systems, we may not be able to penetrate the mobile internet market. In addition, the widespread
adoption of new internet technologies or other technological changes could require significant expenditures to modify or integrate our products or
services. If we fail to keep up with these changes to remain competitive, our future success may be adversely affected.
Our business depends substantially on the continuing efforts of our key executives, and our business may be severely disrupted if we lose their
services.
Our future success depends heavily upon the continued services of our key executives. We rely on their expertise in business operations, finance,
and travel services and on their relationships with our ecosystem partners and shareholders. If one or more of our key executives are unable or unwilling
to continue in their present positions, we may not be able to easily replace them. In that case, our business may be severely disrupted, we may incur
additional expenses to recruit and train personnel and our financial condition and results of operations may be materially and adversely affected.
In addition, if any of these key executives joins a competitor or forms a competing company, we may lose users and ecosystem partners. Each of
our executive officers has entered into a service contract with us that contains confidentiality and non-competition provisions. If any disputes arise
between our executive officers and us, we cannot assure you of the extent to which any of these agreements would be enforced in China, where most of
these executive officers reside and hold most of their assets, in light of the uncertainties with China’s legal system. See “—Risks Relating to Doing
Business in China—Uncertainties with respect to the PRC legal system could adversely affect us.”
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If we are unable to attract, train and retain key individuals and highly skilled employees, our business may be adversely affected.
If our business continues to expand, we will need to hire additional employees, including ecosystem partner management personnel to maintain
and expand our ecosystem partner network, information technology and engineering personnel to maintain and expand our mobile platform, websites,
customer service centers and systems and customer service representatives to serve an increasing number of users. If we are unable to identify, attract,
hire, train and retain sufficient employees in these areas, users of our mobile platform, websites and customer service centers may not have satisfactory
experiences and may turn to our competitors, which may adversely affect our business and results of operations.
Our business is subject to the risks of international operations, including but not limited to, operational risk, compliance risk, and reputational risk.
We had overseas expansion of our business over the years and operate our business in many foreign jurisdictions such as European and southeast
Asian countries. As we plan to expand our global presence over the long-term through means of partnerships and investments, we are exposed to a
variety of risks in our business operations, including but not limited to, operational risk, compliance risk, and reputational risk. Compliance with foreign
laws and regulations that apply to our international operations increases our cost of doing business in foreign jurisdictions. These laws and regulations
include data privacy requirements, labor relations laws, tax laws, foreign currency-related regulations, anti-competition regulations, prohibitions on
payments to governmental officials, market access, import, export and general trade regulations, including but not limited to economic sanctions and
embargos. Violations of these laws and regulations could result in fines and penalties, criminal sanctions against us, our officers or our employees, and
prohibitions on the conduct of our business, including the loss of trade privileges. Any such violations could result in prohibitions on our ability to offer
our products and services in one or more countries, could delay or prevent potential acquisitions and could also materially damage our reputation, our
brand, our international expansion efforts, our ability to attract and retain employees, our business and our operating results. Compliance with these laws
requires a significant amount of management attention and effort, which may divert management’s attention from running our business operations and
could harm our ability to grow our business, or may increase our expenses as we engage specialized or other additional resources to assist us with our
compliance efforts. Our success depends, in part, on our ability to anticipate these risks and manage these difficulties. We monitor our operations and
investigate allegations of improprieties relating to transactions and the way in which such transactions are recorded. Where circumstances warrant, we
provide information and report our findings to government authorities, but no assurance can be given that action will not be taken by such authorities. In
addition, as our business and operation expand in international markets, we could be exposed to increased foreign exchange risks for other currencies.
The current tensions in international trade and rising political tensions, particularly between the United States and China, may adversely impact our
business, financial condition, and results of operations.
Recently there have been heightened tensions in international economic relations, such as the one between the United States and China. The U.S.
government has recently imposed, and may continue to impose additional, new, or higher tariffs on certain products imported from China to penalize
China for what it characterizes as unfair trade practices. China has responded by imposing, and proposing to impose additional, new, or higher tariffs on
certain products imported from the United States. Following mutual retaliatory actions for months, on January 15, 2020, the United States and China
entered into the Economic and Trade Agreement Between the United States of America and the People’s Republic of China as a phase one trade deal,
effective on February 14, 2020.
In addition, political tensions between the United States and China have escalated due to, among other things, trade disputes, the COVID-19
pandemic, the passage of Safeguarding National Security in the Hong Kong Special Administrative Region by the Standing Committee of the PRC
National People’s Congress, sanctions imposed by the U.S. Department of Treasury on certain officials of the Hong Kong Special Administrative
Region and the PRC central government and the executive orders issued by the U.S. government that prohibit certain transactions with certain selected
Chinese technology companies, and the Executive Order 13959 issued in November 2020 targeting transactions by U.S. persons in certain securities of
designated “Communist Chinese military companies.” As we work with a wide range of business partners in China and elsewhere in the world, should
any of our major business partners become subject to sanctions or restrictions by the U.S. government, our business may be adversely affected. Rising
political tensions could reduce levels of trades, investments, technological exchanges, and other economic activities between the two major economies,
which would materially and adversely affect the global economic conditions and the stability of global financial markets. Such tensions between the
United States and China, and any escalation thereof, potentially as a result of the conflict in Ukraine and sanctions on Russia, may have a negative
impact on the general, economic, political, and social conditions in China and, in turn, adversely impacting our business, financial condition, and results
of operations.
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We may not be able to prevent others from using our intellectual property, which may harm our business and expose us to litigation.
We regard our domain names, trade names, trademarks, patents, proprietary know-how, and similar intellectual properties as critical to our
success. We try to protect our intellectual property rights by relying on intellectual property protection laws, confidentiality laws, and confidentiality
contracts. However, the provisions of such laws and contracts may not provide us with sufficient protection, and legal proceedings to protect our
intellectual properties from infringement could be difficult, time-consuming, and expensive in China. In addition, as our business operations further
evolves globally, we may not be able to enforce our intellectual property rights throughout the world, which may in turn adversely impact our
international operations and business. We may encounter significant problems in protecting and enforcing intellectual property rights in certain foreign
jurisdictions. The legal systems of certain countries do not favor the enforcement of intellectual property protection, which could make it difficult for us
to stop the infringement or misappropriation of our intellectual property rights. Proceedings to enforce our proprietary rights in foreign jurisdictions
could result in substantial costs and divert our efforts and attention from other aspects of our business.
The steps we have taken may be inadequate to prevent the misappropriation of our proprietary technology. Any misappropriation could have a
negative effect on our business and operating results. Furthermore, we may need to go to court to enforce our intellectual property rights. Litigation
relating to our intellectual property might result in substantial costs and diversion of resources and management attention. See “—Risks Relating to
Doing Business in China—Uncertainties with respect to the PRC legal system could adversely affect us.”
We rely on services from third parties to carry out our business and to deliver our products to users, and if there is any interruption or deterioration
in the quality of these services, our users may not continue using our services.
We rely on third-party computer systems to host our websites, as well as third-party licenses for some of the software underlying our technology
platform. In addition, we rely on third-party transportation ticketing agencies to issue transportation tickets and travel insurance products, confirmations
and deliveries in some cities in Greater China. We also rely on third-party local operators to deliver on-site services to our packaged-tour and
in-destination activity users and other services, such as car services.
Any interruption in our ability to obtain the products or services of these or other third parties or deterioration in their performance, such as server
errors or interruptions, or dishonest business conduct, could impair the timing and quality of our own service. If our service providers fail to provide
high-quality services in a timely manner to our users, or provide services that are substantially different from its description or without licenses or
permits as required by the relevant laws and regulations despite that we have so requested, violate any applicable rules and regulations, or involve in
incidents of negative publicity, our services will not meet the expectations of our users, our users may claim against us for damages and stop using our
online platforms, and our reputation and brand will be damaged. Furthermore, if our arrangement with any of these third parties is terminated, we may
not find an alternative source of support on a timely basis or on favorable terms to us.
We may be the subject of detrimental conduct by third parties, including complaints to regulatory agencies, negative blog postings, and the public
dissemination of malicious assessments of our business, which could have a negative impact on our reputation and cause us to lose market share,
ecosystem partners, users and revenues, and adversely affect the price of our ADSs or ordinary shares.
We may be the target of anti-competitive, harassing, or other detrimental conduct by third parties. Such conduct may include complaints,
anonymous or otherwise, to regulatory agencies regarding our operations, accounting, revenues, business relationships, business prospects, and business
ethics. Additionally, allegations, directly or indirectly against us, may be posted in internet chat-rooms or on blogs or any websites by anyone, whether
or not related to us, on an anonymous basis. We may be subject to government or regulatory investigation as a result of such third-party conduct and
may be required to spend significant time and incur substantial costs to address such third-party conduct, and we cannot assure you that we will be able
to conclusively refute each of the allegations within a reasonable period of time, or at all. Our reputation may also be negatively affected as a result of
the public dissemination of anonymous allegations or malicious statements about our business, which in turn may cause us to lose market share,
ecosystem partners, users, and revenues and adversely affect the price of our ADSs or ordinary shares.
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We are subject to payment processing risk.
We accept a variety of different online payment methods and rely on third parties to process such payment. Acceptance and processing of these
payment methods are subject to certain rules and regulations and require payment of interchange and other fees. To the extent there are increases in
payment processing fees, material changes in the payment ecosystem, such as delays in receiving payments from payment processors or changes to rules
or regulations concerning payment processing, our revenues, operating expenses, and results of operation could be adversely impacted.
We also do not have control over the security measures of our third-party payment service providers, and security breaches of the online payment
systems that we use could expose us to litigation and possible liability for failing to secure confidential user information and could, among other things,
damage our reputation and the perceived security of all of the online payment systems that we use. If a well-publicized internet security breach were to
occur, users concerned about the security of their online payments may become reluctant to purchase our products and services through payment service
providers even if the publicized breach did not involve payment systems or methods used by us. We may also be subject to fraud and other illegal
activities in connection with the various payment methods that we offer, including online payment options. We may also be subject to various rules,
regulations, and requirements, regulatory or otherwise, governing electronic fund transfers and online payment, which could change or be reinterpreted
to make it difficult or impossible for us to comply with. If we fail to comply with these rules or requirements, we may be subject to fines and higher
transaction fees, and lose our ability to accept credit and debit card payments from our users, process electronic fund transfers, or facilitate other types of
online payments. If any of the above were to occur and damage our reputation or the perceived security of the payment systems that we use, we may
lose users as they may be discouraged from purchasing products or services on our platform, which may adversely affect our business and results of
operations.
If our hotel partners or users provide us with untrue information regarding the users’ stay or misrepresentations, we may not be able to recognize
and collect revenues to which we are entitled.
We generate substantially all of our accommodation reservation revenue through commissions from hotel reservation partners through our
platform. To confirm whether a user adheres to the booked itinerary, we routinely make inquiries with the hotel and, occasionally, with the user. We rely
on the hotel partner and the user to provide us truthful information regarding the user’s check-in and check-out dates, which forms the basis for
calculating the commission we are entitled to receive from the hotel partner. If our hotel partners or users provide us with untrue information with
respect to our users’ length of stay at the hotels, we would not be able to collect revenues to which we are entitled. In addition, using such untrue
information may lead to inaccurate business projections and plans, which may adversely affect our business planning and strategy.
We may suffer losses if we are unable to predict the amount of inventory we will need to purchase during the peak holiday seasons.
During the peak holiday seasons in China, we establish limited merchant business relationships with selected ecosystem partners, in order to
secure adequate supplies for our users. In merchant business relationships, we buy hotel rooms and transportation tickets before selling them to our users
and thereby incur inventory risk. As we expanded our offline business in 2019, partially attributable to our packaged-tour products, our demands also
increased correspondingly. If we are unable to correctly predict demand for hotel rooms and transportation tickets that we are committed to purchase, we
would be responsible for covering the cost of the hotel rooms and transportation tickets we are unable to sell, and our financial condition and results of
operations would be adversely affected.
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If tax benefits available to our subsidiaries in China are reduced or repealed, our results of operations could suffer.
Under the PRC Enterprise Income Tax Law, as amended, or the EIT Law, and the relevant implementation rules, foreign-invested enterprises, or
FIEs, and domestic enterprises are subject to EIT at a uniform rate of 25%. Certain enterprises will benefit from a preferential tax rate of 15% under the
EIT Law if they qualify as “high and new technology enterprises,” or HNTEs, or if they are located in applicable PRC regions, subject to certain general
restrictions described in the EIT Law and the related regulations.
In December 2008 and 2009, some of our PRC subsidiaries, Ctrip Computer Technology (Shanghai) Co., Ltd., or Ctrip Computer Technology,
Ctrip Travel Information Technology (Shanghai) Co., Ltd., or Ctrip Travel Information, Ctrip Travel Network Technology (Shanghai) Co., Ltd., or Ctrip
Travel Network, Beijing Qunar Software Technology Co., Ltd., or Qunar Software, and one of our consolidated affiliated Chinese entities, Beijing Qu
Na Information Technology Co., Ltd., or Qunar Beijing, were each recognized by relevant local authorities as a HNTE under the EIT Law with an
effective period of three years. Therefore, these entities were entitled to enjoy a preferential tax rate of 15%, as long as they maintained their
qualifications for HNTEs that are subject to verification by competent authorities and renewals every three years. The qualifications of Ctrip Computer
Technology, Ctrip Travel Information, and Ctrip Travel Network as HNTEs have been renewed and will expire by the end of 2022. The qualifications of
Qunar Software and Qunar Beijing as HNTEs have been renewed and will expire by the end of 2023. Beijing Hujinxinrong Technology Co., Ltd, or
Beijing Hujinxinrong, is also a HNTE entitled to a preferential income tax rate of 15% from 2019 to 2021 and is applying for renewal of its
qualification. In addition, Ctrip Business Travel Information Service (Shanghai) Co., Ltd., or Ctrip Business Travel, and Shanghai Xielv Information
Technology Co., Ltd., or Shanghai Xielv Information, were designated by relevant local authorities in Shanghai as HNTEs for the first time in 2021 and
are entitled to a preferential income tax rate of 15% till 2023. The HNTE qualification is subject to a periodic review every three years by the relevant
PRC government authorities. Preferential tax treatment granted to our subsidiaries by the local governmental authorities is subject to this periodic
review and may be adjusted or revoked at any time. We cannot assure you that our subsidiaries and the consolidated affiliated Chinese entity will
continue to qualify as HNTEs when they are subject to reevaluation in the future. In 2001, the STA, the PRC Ministry of Finance, and the General
Administration of Customs jointly issued the Circular on Issues Concerning Preferential Tax Policies for the Western Development, or the Circular 202,
and started to implement preferential tax policy in China’s western region. According to the Circular 202, from 2001 to 2010, the companies located in
applicable jurisdictions covered by this circular are eligible to apply for a preferential income tax rate of 15% if their businesses fall within the
“encouraged” category of the Catalog of Industries, Products and Technologies Currently Encouraged to Develop by the State or the Catalog for
Guidance of Industries for Foreign Investment and the revenue derived from such “encouraged” businesses accounts for no less than 70% of the total
revenue. In 2011, the STA, the Ministry of Finance, and the General Administration of Customs jointly issued the Circular on Issues Concerning Tax
Policies for In-depth Implementation of Western Development Strategies, or the Circular 58, according to which the Catalog of Encouraged Industries in
Western Regions, or the Western Regions Catalog, would be applied instead of the two catalogs stipulated in the Circular 202 from 2011 to 2020.
According to the Western Regions Catalog issued by the PRC National Development and Reform Commission, or the NDRC, later in 2014, the
“encouraged” industries include the industries provided in the Guiding Catalog of Industrial Structure Adjustment, the Catalog for Guidance of
Industries for Foreign Investment, the Catalog of Advantageous Industries for Foreign Investment in the Central and Western Regions, and other
encouraged catalogs specifically applied in western regions. On April 23, 2020, the Ministry of Finance, the STA, and the NDRC jointly issued the
Announcement on Renewing the Enterprise Income Tax Policy for Western Development, which reduced the revenue percentage requirement of the
“encouraged” businesses to no less than 60% and would be applied from 2021 to 2030. Benefiting from this policy, Chengdu Ctrip, Chengdu Ctrip
International, and Chengdu Ctrip Information Technology Co., Ltd., or Chengdu Information, obtained approval from local authorities in 2012 and
2013, which recognized that the main businesses of such three companies belong to the “encouraged” catalog of the Guiding Catalog of Industrial
Structure Adjustment. Therefore, such entities were entitled to enjoy a preferential tax rate of 15% until 2030, as long as their “encouraged” businesses
accounts for no less than required percentage pursuant to current policies. In the event that the preferential tax treatment for these entities is
discontinued, these entities will become subject to the standard tax rate at 25%, which would materially increase our tax obligations.
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We may be subject to legal or administrative proceedings regarding information provided on our online portals or other aspects of our business
operations, which may be time-consuming to defend.
Our online portals contain information about hotels, transportation, popular vacation destinations, and other travel-related topics posted by us as
well as third parties. It is possible that if any information accessible on our online portals contains errors or false or misleading information, third parties
could take actions against us for losses incurred in connection with the use of such information. From time to time, we have become and may in the
future become a party to various legal or administrative proceedings arising in the ordinary course of our business, including actions with respect to
breach of contract claims, intellectual property infringement, anti-competition claims, claims relating to our online ride-hailing services, advertising
services and pricing information we provided, and other matters. Although such proceedings are inherently uncertain and their results cannot be
predicted with certainty, we believe that the resolution of our current pending matters will not have a material adverse effect on our business,
consolidated financial position, results of operations, or cash flow. Regardless of the outcome and merit of such proceedings, any legal action can have
an adverse impact on us because of defense costs, negative publicity, diversion of management’s attention, and other factors. In addition, it is possible
that an unfavorable resolution of one or more legal or administrative proceedings, whether in China or in another jurisdiction, could materially and
adversely affect our financial position, results of operations, or cash flows in a particular period or damage our reputation.
We could be liable for breaches of internet security or fraudulent transactions by users of our online platforms and our websites.
Internet industry is facing significant challenges regarding information security and privacy, including the storage, transmission and sharing of
confidential information. In recent years, PRC government authorities have enacted legislation on internet use to protect personal information from any
unauthorized disclosure. In November 2016, the PRC Standing Committee of the National People’s Congress promulgated the PRC Cyber Security Law,
which became effective on June 1, 2017. The PRC Cyber Security Law requires that a network operator, which includes, among others, internet
information services providers, to take technical measures and other necessary measures in accordance with applicable laws and regulations and the
compulsory requirements of the national and industrial standards to safeguard the safe and stable operation of its networks, imposing a relatively vague
but broad obligation to provide technical support and assistance to the public and state security authorities in connection with criminal investigations or
for reasons of national security. The law further requires internet information service providers to formulate contingency plans for network security
incidents, report to the competent departments immediately upon the occurrence of any incident endangering cyber security, and take corresponding
remedial measures. Any violation of the PRC Cyber Security Law may subject us to warnings, fines, confiscation of illegal gains, revocation of licenses,
cancelation of filings, shutdown of websites, or criminal liabilities. See “Item 4. Information on the Company—B. Business Overview—PRC
Government Regulations—Regulations Related to Internet Information Security and Privacy Protection.”
We conduct a significant portion of our transactions through the internet, including our online platforms and websites. In such transactions,
secured transmission of confidential information (such as users’ itineraries, hotel and other reservation information, credit card information, personal
information, and billing addresses) over public networks and ensuring the confidentiality, integrity, availability, and authenticity of the information of
our users, hotel partners, and airline partners are essential to maintaining their confidence in our online products and services. Our current security
measures may not be adequate and may contain deficiencies that we fail to identify, and advances in technology, increased levels of expertise of hackers,
new discoveries in the field of cryptography or others could increase our vulnerability. For example, a third-party website that focuses on internet
security information exchange released news in March 2014 that as a result of a temporary testing function performed by us, certain data files containing
users’ credit card information had been stored on local servers maintained by us, which may lead to potential exposure of these users’ information to
hackers. We removed the cause of the potential security concern within two hours of the release of the news report and then examined all other possible
leaks and found that 93 users’ credit card information might have been downloaded by the above-mentioned website for the purpose of confirming
potential risks. Our business, results of operations, user experience, and reputation may be materially and adversely affected if similar incidents related
to internet security recur in the future. In August 2011, the PRC Supreme People’s Court and the PRC Supreme People’s Procuratorate issued judicial
interpretations regarding hacking and other internet crimes. However, its effect on curbing hacking and other illegal online activities still remains to be
seen.
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We strive to comply with applicable data protection laws and regulations, as well as our privacy policies pursuant to our terms of use and other
obligations that we may have with respect to privacy and data protection. Significant capital, managerial, and human resources are required to enhance
information security and to address any issues caused by security failures. If we are unable to protect our systems and the information stored in our
systems from unauthorized access, use, disclosure, disruption, modification, or destruction, such problems or security breaches may cause loss, expose
us to litigation and possible liability to the owners of confidential information, disrupt our operations and may harm our reputation, and ability to attract
users.
The PRC government regulates the air-ticketing, travel agency, internet industries, and certain other industries we operate in. If we fail to obtain or
maintain all pertinent permits and approvals or if the PRC government imposes more restrictions on these industries, our business may be adversely
affected.
The PRC government regulates the air-ticketing, travel agency, internet industries, and certain other industries we operate in. We are required to
obtain applicable permits or approvals from different regulatory authorities to conduct our business, including separate licenses for value-added
telecommunications, travel agency, and internet-related activities. If we fail to obtain or maintain any of the required permits or approvals in the future,
we may be subject to various penalties, such as fines or suspension of operations in these regulated businesses, which could severely disrupt our
business operations. As a result, our financial condition and results of operations may be adversely affected.
In particular, the Civil Aviation Administration of China and the NDRC regulate pricing of air tickets. The Civil Aviation Administration also
supervises commissions payable to air-ticketing agencies together with the China Air Transport Association. If restrictive policies are adopted by the
Civil Aviation Administration, NDRC, or the China Air Transport Association, or any of their regional branches, our air-ticketing revenue may be
adversely affected.
In addition, the PRC government may promulgate new laws and regulations, interpretation of existing laws and regulations, as well as regulatory
guidance and policies. We may not be able to always keep abreast of these developments, and we could be subject to regulatory or administrative
penalties and operational disruption if we are unable to comply with these laws, regulations, and policies in a timely fashion, or at all. For example, the
Standing Committee of the National People’s Congress promulgated the PRC E-Commerce Law on August 31, 2018, which took effect on January 1,
2019. Pursuant to the PRC E-Commerce Law, an e-commerce platform operator must take joint liabilities with the relevant merchants operating on its
platform and may be subject to warnings and fines where it fails to take necessary measures when (i) it knows or should have known that the products or
services provided by the merchants operating on its platform do not meet the personal or property safety requirements or such merchants’ other acts may
infringe on the lawful rights and interests of the consumers; or (ii) it has been informed that the merchants operating on its platform infringe any
intellectual property rights of any other third party but has not taken measures in time. In addition, with respect to products or services affecting the
consumers’ life and health, if an e-commerce platform operator fails to examine and verify the merchants’ qualification, or it fails to assure the
consumers’ security, which results in damages to consumers, it must take corresponding liabilities and may be subject to warnings and fines.
Furthermore, pursuant to a Tentative Administrative Measure on Online Travel Operation promulgated on August 20, 2020 by the PRC Ministry of
Culture and Tourism and took effect on October 1, 2020, the operator of online travel business, like us, must provide real and accurate travel services
information without false promotion and advertisement. The operator of online travel platform must verify the identification, license, quality standard,
credit rating, and other information of all travel business operator registered on the platform. The online travel business operator must protect the
personal data privacy of travelers and cannot set unfair trading conditions based on consumption record and preference by abusing data analyzing
technology. The platform operator must also alert the travelers for safety warning, and must take the liability if it fails to perform relevant obligations
requested by such administrative measures.
Furthermore, we provide online consumer finance services incidental to our core businesses. Due to the relatively short history of China’s online
consumer finance industry, the PRC government is still in the process of establishing a comprehensive regulatory framework governing this industry.
The relevant rules and regulations governing this industry are general in nature and yet to be further interpreted or supplemented. As a result, we cannot
assure you that we will be able to obtain all licenses and permits necessary for providing our online consumer finance services. In addition, we may have
to make significant changes to our operations from time to time in order to comply with changing laws, regulations, and policies governing the online
and travel industries in general and many aspects of our business in particular, which may increase our cost of operation or limit our options of service
offering, which in turn may adversely affect our results of operations.
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Our failure to comply with privacy and data protection laws and regulations in various jurisdictions could subject us to sanctions, damages, and
litigation, and could harm our reputation and business.
We collect and process certain personal data of our users, including email addresses, usage data, identification information, user passwords, and
additional information. We also collect and process user billing information, such as credit card numbers, full names, billing addresses, and phone
numbers of our users.
We are subject to the privacy and data protection laws and regulations in various jurisdictions, such as China and European Union. Privacy laws
provide restrictions and guidance in connection with our storage, use, processing, disclosure, transfer, and protection of personal information. We strive
to comply with all applicable laws, regulations, policies relating to privacy and data protection. We are also subject to privacy and data security-related
obligations deriving from our privacy policy and terms of use with our users, and we may be liable to third parties in the event we are deemed to have
wrongfully processed, used, stored, disclosed, or otherwise disposed of personal data.
Data security and protection has become one of the policy focuses of PRC regulators. The PRC regulatory and enforcement regime in this regard
is relatively new and rapidly evolving. Therefore, substantial uncertainties remain with respect to the interpretation and enforcement of the relevant
regulations and their impact to us, which makes it difficult to determine what actions or inactions may be deemed to be in violation of the applicable
laws and regulations in certain circumstances.
The PRC Data Security Law took effect in September 2021 and established a tiered system for data protection based on level of importance. Since
September 2021, the CAC and other relevant government authorities promulgated and proposed a series of laws, regulations, and draft legislations
relating to information protection and data security, including but not limited to, the Guidance on Strengthening the Comprehensive Governance of
Internet Information Service Algorithms, the Administrative Provisions on Internet Information Service Algorithm-Based Recommendation, the Safety
Assessment Measures for Data Outbound Transfer (Draft for Comments), the Administrative Regulations of Internet Data Security (Draft for
Comments), the Administrative Measures on Network Data Security (Draft for Comment), and the Administrative Measures on Data Security in the
Field of Industry and Information Technology (Trial) (Draft for Comments). Among these regulations, the Administrative Measures on Network Data
Security (Draft for Comment) published by the CAC in November 2021 stipulates that data processing entities should apply for cybersecurity review in
the event that, among others, its listing in Hong Kong has or could have influence on national security. As of the date of this annual report, the
regulatory parameters for determining “have or could have influence on national security” as stipulated in the Administrative Measures on Network
Data Security (Draft for Comment) remain unclear and are subject to further explanation and elaboration by the CAC. Substantial uncertainties remain
with respect to the enactment timetable, final content, interpretation, and implementation, especially the detailed interpretation of the standard for
determining whether a listing in Hong Kong “has or could have influence on national security.” As of the date of this annual report, the Administrative
Measures on Network Data Security (Draft for Comment) has not become effective yet, and no application channel or detailed procedures are in place
for the implementation of the cybersecurity review as stipulated therein.
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The Personal Information Protection Law took effect in November 2021, which integrates a variety of rules with respect to personal information
rights and privacy protection and applies to the processing of personal information within mainland China and certain personal information processing
activities outside mainland China, including those for the provision of products and services to natural persons within China or for the analysis and
assessment of acts of natural persons within China. Furthermore, in December 2021, the CAC and several other authorities jointly promulgated the
amended Cybersecurity Review Measures, which took effect in February 2022. Pursuant to the Cybersecurity Review Measures, where the relevant
activity affects or may affect national security, a critical information infrastructure operator, or a CIIO, that purchases network products and services, or
an internet platform operator that conducts data process activities, must be subject to the cybersecurity review. The Cybersecurity Review Measures also
expands the cybersecurity review requirement to cover “internet platform operators” in possession of personal information of over one million users if
such operators intend to pursue a foreign listing. Additionally, relevant PRC government authorities may initiate cybersecurity review if they determine
an internet platform operator’s network products or services or data processing activities affect or may affect national security. According to the
Regulations on the Security Protection of Critical Information Infrastructure which became effective in September 2021, the CIIO shall perform certain
obligations to protect the critical information infrastructure’s security, including but not limited to, conducting network security test and risk assessment
at least once a year. The security protection departments are responsible for organizing the identification of critical information infrastructure in their
respective industries and areas in accordance with the identification rules, and shall inform the identification results to the operators in a timely manner
and report such results to the public security department of the State Council.
Nevertheless, PRC government authorities have wide discretion in the interpretation and enforcement of these laws. As a major internet platform,
we are exposed to risks of being deemed to be a CIIO or a network platform operator meeting the above criteria under the PRC cybersecurity laws. If we
are identified as a CIIO, we would be required to fulfill various obligations as required under PRC cybersecurity laws and other applicable laws for
CIIOs that are currently not applicable to us, including, among others, setting up a special security management organization, organizing regular
cybersecurity education and training, formulating emergency plans for cyber security incidents, and conducting regular emergency drills. Moreover,
although the internet products and services that we purchase are primarily bandwidth, servers, and marketing services, we may need to follow
cybersecurity review procedure and apply with Cybersecurity Review Office before making certain purchases of network products and services. During
cybersecurity review, we may be required to suspend the provision of any existing or new services to our users, and we may experience other disruptions
to our operations, which could cause us to lose users and therefore leading to adverse impacts on our business. The cybersecurity review could also lead
to negative publicity and a diversion of time and attention of our management and our other resources. It could be costly and time-consuming for us to
prepare application materials and make the applications. Furthermore, we cannot assure you that we will obtain the clearance or approval for these
applications from the Cybersecurity Review Office and the relevant government authorities in a timely manner, or at all. If we are found to be in
violation of cybersecurity requirements in China, the relevant government authorities may, at their discretion, conduct investigations, levy fines, request
app stores to take down our apps, and cease to provide viewing and downloading services related to our apps, prohibit the registration of new users on
our platform, or require us to change our business practices in a manner materially adverse to our business. Any of these actions may disrupt our
operations and materially and adversely affect our business, financial condition, and results of operations.
As we are operating website and mobile applications and providing certain internet services, we are also subject to other applicable PRC laws and
regulations in relation to internet information security and privacy protection, see “Item 4. Information of the Company—B. Business Overview—PRC
Government Regulations—Regulations Related to Internet Information Security and Privacy Protection” for details of these laws and regulations.
European Union traditionally takes a broader view as to what is considered personal information and has imposed greater obligations under their
privacy and data protection laws. In particular, the European Union adopted a new General Data Protection Regulation in April 2016, which became
effective in May 2018. The General Data Protection Regulation results in more stringent requirements for data processors and controllers, including
more fulsome disclosures about the processing of personal information, data retention limits, and deletion requirements, mandatory notification in the
case of a data breach, and elevated standards regarding valid consent in some specific cases of data processing. The General Data Protection Regulation
also includes substantially higher penalties for failure to comply with the requirements. For example, in the event of violations, a fine up to €20 million
or up to 4% of the annual worldwide turnover, whichever is greater, may be imposed. In addition to General Data Protection Regulation, when other
future laws and regulations relating to data privacy in China or other jurisdictions come into effect, the more stringent requirements on privacy user
notifications and data handling will require us to adapt our business and incur additional costs.
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Privacy and data protection concerns are becoming more widely acknowledged and may cause our users to resist providing the personal data
necessary to allow them to use our platform effectively. We have implemented multiple measures and security protocols to maintain and improve our
privacy protection capability. However, since the relevant laws and regulations are relatively new, there are uncertainties as to the interpretation and
application of these laws and regulations, and it is possible that our privacy and data protection practices are or will be incompliant with the applicable
regulatory requirements and/or our terms of use with our users. Any violation of the provisions and requirements under these laws, regulations,
obligations or our terms of use with our users may subject us to warnings, fines, confiscation of illegal gains, revocation of licenses, suspension of
business, shutting down of websites or even criminal liabilities. Complying with such requirements could cause us to incur substantial expenses or to
alter or change our practice in a manner that could harm our business. Any systems failure or security breach or lapse that results in the unauthorized
release of our user data could harm our reputation and brand and, consequently, our business, in addition to exposing us to potential legal liability.
We have incurred substantial indebtedness and may incur additional indebtedness in the future. We may not be able to generate sufficient cash to
satisfy our outstanding and future debt obligations.
We have incurred substantial indebtedness to execute our business operations and strategies. To the extent that we were to settle or redeem our
convertible notes in cash, our debt obligations would become more substantial.
Our substantial indebtedness could have important consequences to you. For example, it could:
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•
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increase our vulnerability to adverse general economic and industry conditions;
require us to dedicate a substantial portion of our cash flow from operations to servicing and repaying our indebtedness, thereby reducing
the availability of our cash flow to fund working capital, capital expenditures and other general corporate purposes; and
limit, along with the financial and other restrictive covenants of our indebtedness, among other things, our ability to conduct additional
financing activities, or increase the cost of additional financing.
We may from time to time incur additional indebtedness and contingent liabilities. If we incur additional debt, the risks that we face as a result of
our substantial indebtedness and leverage could intensify. For example, since 2018, we entered into asset backed securitization arrangements with third-
party financial institution and set up a securitization vehicle, which issued revolving debt securities to third-party investors. In 2019, 2020 and 2021, we
also obtained loan facilities from certain financial institutions. In July 2020, we issued US$500 million in aggregate principal amount of 1.50%
exchangeable senior notes due 2027.
Our ability to generate sufficient cash to satisfy our outstanding and future debt obligations will depend upon our future operating performance,
which will be affected by prevailing economic conditions and financial, business and other factors, many of which are beyond our control. As a result,
we may not generate or obtain sufficient cash flow to meet our anticipated operating expenses and to service our debt obligation as they become due.
We may face greater risk of doubtful accounts as our business increases in scale.
We provide credit terms to certain ecosystem partners, and also extend credit to our users by making payments on behalf of them when they book
travel products on our platform. Our accounts receivable and other receivables have increased as our business grows. We cannot assure you that we will
be able to collect payment fully and in a timely manner on our outstanding receivables from our ecosystem partners and users. As a result, we may face
a greater risk of non-payment of our receivables and, as our business grows in scale, we may need to make higher allowance for credit losses. We
recognized allowance for credit losses of RMB141 million for the year ended December 31, 2021, compared to RMB700 million for the year ended
December 31, 2020, primarily due to the sufficient amount of allowance for credit losses already booked by us in 2020 as a result of the impact of the
COVID-19 pandemic. For the year ended December 31, 2020, we recognized allowance for credit losses of RMB700 million, primarily for our
ecosystem partners, such as airlines, hotels, and packaged-tour providers in China and globally. Our allowance for credit losses increased in the first
quarter of 2020 due to the significant negative impacts on our business operation and our ecosystem partners as a result of the COVID-19 pandemic. We
experienced an increase in refunds from reservation cancellations, which we paid on behalf of our ecosystem partners. Correspondingly, we recognized
more allowance for credit losses for receivable of such refunds to reflect the deterioration of credit risk profile of certain travel ecosystem partners. In
each of the third and fourth quarter of 2020, we recorded a reversal of allowance for credit losses for our travel ecosystem partners reflecting the
improvement in credit risk profile with domestic travel industry recovery. Our operating results and financial condition may be materially and adversely
affected if we are unable to successfully manage our receivables.
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Our accounting treatment for share-based compensation could continue to significantly reduce our net income.
We have accounted for share-based compensation in accordance with ASC 718 “Compensation — Stock Compensation,” or ASC 718, which
requires a public company to recognize, as an expense, the fair value of share options and other share-based compensation to employees based on the
requisite service period of the share-based awards. We have granted share-based compensation awards, including share options and restricted share
units, to employees, officers and directors to incentivize performance and align their interests with ours. See “Item 6. Directors, Senior Management and
Employees— B. Compensation—Employees’ Share Incentive Plans.” As a result of the grants and potential future grants under our share incentive
plans, we had incurred in the past and expect to continue to incur in future periods significant share-based compensation expenses. The amount of these
expenses is based on the fair value of the share-based awards.
Our board of directors has the discretion to change terms of any previously issued share options and any such change may significantly increase
the amount of our share-based compensation expenses for the period that the change takes effect as well as those for any future periods. For example, in
December 2019, we completed a one-time modification of share options, pursuant to which eligible employees were able to exchange every four share
options previously granted under the 2007 Share Incentive Plan or the Amended and Restated Global Incentive Plan for one new option that entitles
each eligible grantee to purchase one ordinary share, provided that the eligible options previously granted (and subject to exchange) each had an exercise
price exceeding US$40 per ordinary share. The exercise price of each new option is US$0.00125 per ordinary share and the vesting schedules remaining
unchanged. As a result of the modification, the prior options to purchase 6,686,792 ordinary shares were exchanged for new options to purchase
1,672,208 ordinary shares. In addition, with the historic changes and extensions to our share incentive awards, the application of ASC 718 will continue
to have a significant impact on our net income. Further, future changes to various assumptions used to determine the fair value of awards issued or the
amount and type of equity awards granted may also create uncertainty as to the amount of future share-based compensation expense.
The determination of the fair value changes of certain financial assets requires significant management judgement and estimation based on
unobservable inputs, which may lead to valuation uncertainty and a change in the fair value of our long-term investments.
As of December 31, 2021, we had investments of RMB3.4 billion (US$526 million) classified under Level 3 in the fair value hierarchy, or the
Level 3 Investments. The fair values of the Level 3 Investments were determined by us based on an income approach utilizing various unobservable
inputs which required significant judgment, determined by us, with respect to the assumptions and estimates for the revenue growth rate, weighted
average cost of capital, lack of marketability discounts, expected volatility, and probability in equity allocation. Accordingly, such determination
requires us to make estimates and assumptions, which may be subject to material changes, and therefore inherently involves a certain degree of
uncertainty. Factors beyond our control, such as general economic condition, changes in market interest rates, and stability of the capital markets, can
significantly influence and cause adverse changes to the estimates we used and thereby affect the fair value of the level 3 Investments. Should any of the
estimates and assumptions changed, there may be a change in the fair value of our financial assets, which would materially and adversely affect our
results of operation and financial condition.
For further details, see “Item 5. Operating and Financial Review and Prospects — A. Operating Results—Critical Accounting Policies and
Estimates—Fair value of Available-for-sale Debt Investments.”
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Failure to maintain effective internal control over financial reporting could result in errors in our published financial statements, which in turn
could have a material adverse effect on the trading price of our ADSs or ordinary shares.
We are subject to the reporting obligations under the U.S. securities laws. As required under Section 404 of the Sarbanes-Oxley Act of 2002, the
SEC has adopted rules requiring public companies to include a report of management on the effectiveness of such companies’ internal control over
financial reporting in its annual report. In addition, an independent registered public accounting firm for a public company must issue an attestation
report on the effectiveness of the company’s internal control over financial reporting. Our management conducted an evaluation of the effectiveness of
our internal control over financial reporting and concluded that our internal control over financial reporting was effective as of December 31, 2021. In
addition, our independent registered public accounting firm attested the effectiveness of our internal control and reported that our internal control over
financial reporting was effective as of December 31, 2021. If we fail to maintain the effectiveness of our internal control over financial reporting, we
may not be able to conclude on an ongoing basis that we have effective internal control over financial reporting in accordance with the Sarbanes-Oxley
Act. Moreover, effective internal control over financial reporting is necessary for us to produce reliable financial reports. As a result, any failure to
maintain effective internal control over financial reporting could result in the loss of investor confidence in the reliability of our financial statements,
which in turn could negatively impact the trading price of our ADSs or ordinary shares. Furthermore, we may need to incur additional costs and use
additional management and other resources in an effort to comply with Section 404 of the Sarbanes-Oxley Act and other requirements going forward.
We may need additional capital and we may not be able to obtain it.
We believe that our current cash and cash equivalents, short-term investments, cash flow from operations and proceeds from our financing
activities will be sufficient to meet our anticipated cash needs for the foreseeable future. We may, however, require additional cash resources due to
changed business conditions or other future developments, including any investments or acquisitions we may decide to pursue. If these resources are
insufficient to satisfy our cash requirements, we may seek to sell additional equity or debt securities or obtain a credit facility. The sale of additional
equity securities could result in additional dilution to our shareholders. The incurrence of indebtedness would result in increased debt service obligations
and could result in operating and financing covenants that would restrict our operations. We cannot assure you that financing will be available in
amounts or on terms acceptable to us, if at all.
In addition, the terms of future debt financing could result in more restrictive covenants, which could further restrict our business operations. If we
cannot raise additional funds when we need them, our ability to continue to support our business and to respond to business challenges would be
significantly limited, and our business, results of operations, and financial condition would be materially and adversely affected.
Fluctuation of fair value change of short-term investments we made may affect our results of operations.
Historically, we made short-term investments, representing (i) held-to-maturity investments which are due in one year and stated at amortized
cost; (ii) the investments issued by commercial banks or other financial institutions with a variable interest rate indexed to the performance of
underlying assets within one year measured at fair value; and (iii) foreign currency forward contracts measured at fair value, which are short-term.
Changes in the fair value are reflected in our consolidated statements of income/(loss) and comprehensive income/(loss). The methodologies that we use
to assess the fair value of the short-term investments involve a significant degree of management judgment and are inherently uncertain. In addition, we
are exposed to credit risks in relation to our short-term investments, which may adversely affect the net changes in their fair value. We cannot assure you
that market conditions will create fair value gains on our short-term investments or we will not incur any fair value losses on our short-term investments
in the future. If we incur such fair value losses, our results of operations, financial condition and prospects may be adversely affected.
We have limited business insurance coverage in Greater China.
Insurance companies in Greater China offer limited business insurance products and generally do not, to our knowledge, offer business liability
insurance. Business disruption insurance is available to a limited extent in Greater China, but we have determined that the risks of disruption, the cost of
such insurance, and the difficulties associated with acquiring such insurance make it impractical for us to have such insurance. We may not have
sufficient insurance coverage for business liabilities or disruptions, and may need to bear the costs and expenses associated with any such events out of
our own resources.
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Risks Relating to Our Corporate Structure
PRC laws and regulations restrict foreign investment in the travel agency and value-added telecommunications businesses, and substantial
uncertainties exist with respect to the application and implementation of PRC laws and regulations.
We are a Cayman Islands incorporated company and a foreign person under PRC law. Due to foreign ownership restrictions in the travel agency
and value-added telecommunications industries, we conduct part of our business through contractual arrangements with our consolidated affiliated
Chinese entities. These consolidated affiliated Chinese entities hold the licenses and approvals that are essential for our business operations. However, as
we are a Cayman Islands holding company with no equity ownership in our consolidated affiliated Chinese entities, investors in our ADSs or the
ordinary shares thus are not purchasing equity interest in our consolidated affiliated entities in China but instead are purchasing equity interest in a
Cayman Islands holding company. If the PRC government deems that our contractual arrangements with our consolidated affiliated Chinese entities do
not comply with PRC regulatory restrictions on foreign investment in the relevant industries, or if these regulations or the interpretation of existing
regulations change or are interpreted differently in the future, we could be subject to severe penalties or be forced to relinquish our interests in those
operations. We may not be able to repay the notes and other indebtedness, and our shares may decline in value or become worthless, if we are unable to
assert our contractual control rights over the assets of our consolidated affiliated Chinese entities, which contribute to 10% of our total assets as of
December 31, 2021. Our holding company in the Cayman Islands, our consolidated affiliated Chinese entities, and investors of our company face
uncertainty about potential future actions by the PRC government that could affect the enforceability of the contractual arrangements with our
consolidated affiliated Chinese entities and, consequently, significantly affect the financial performance of our consolidated affiliated Chinese entities
and our company as a group.
In the opinion of our PRC legal counsel, Commerce & Finance Law Offices, our current ownership structure, the ownership structure of our
subsidiaries and our consolidated affiliated Chinese entities, and the contractual arrangements among us, our subsidiaries, our consolidated affiliated
Chinese entities and their shareholders, as described in this annual report, are in compliance with existing PRC laws, rules and regulations. There are,
however, substantial uncertainties regarding the interpretation and application of current or future PRC laws and regulations. Accordingly, we cannot
assure you that PRC government authorities will not ultimately take a view contrary to the opinion of our PRC legal counsel due to the lack of official
interpretation and clear guidance.
If we and our consolidated affiliated Chinese entities are found to be in violation of any existing or future PRC laws or regulations, the relevant
governmental authorities would have broad discretion in dealing with such violation, including, without limitation, levying fines, confiscating our
income or the income of our consolidated affiliated Chinese entities, revoking our business licenses or the business licenses of our consolidated affiliated
Chinese entities, requiring us and our consolidated affiliated Chinese entities to restructure our ownership structure or operations, and requiring us or our
consolidated affiliated Chinese entities to discontinue any portion or all of our value-added telecommunications or travel agency businesses. In
particular, if the PRC government authorities impose penalties that cause us to lose our rights to direct the activities of and receive economic benefits
from our consolidated affiliated Chinese entities, we may lose the ability to consolidate and reflect in our financial statements the operation results of
our consolidated affiliated Chinese entities in accordance with the U.S. GAAP, which would have a material adverse effect on our operations and result
in the value of the securities diminishing substantially. Our shares may decline in value if we are unable to assert our contractual control rights over the
assets of our consolidated affiliated Chinese entities that conduct a substantial part of our operations. Our holding company in the Cayman Islands, our
consolidated affiliated Chinese entities and investors of our company face uncertainty about potential future actions by the PRC government that could
affect the enforceability of the contractual arrangements with our consolidated affiliated Chinese entities and, consequently, significantly affect the
financial performance of our consolidated affiliated Chinese entities and our company as a group. Any of these actions could cause significant disruption
to our business operations, and may materially and adversely affect our business, financial condition, and results of operations.
According to the PRC Civil Code that came into effect on January 1, 2021 and replaced the PRC Property Rights Law effective as of October 1,
2007, the effectiveness of the pledges will be denied if the pledges are not registered. Under the equity pledge agreements between our subsidiaries and
the shareholders of our consolidated affiliated Chinese entities, the shareholders of our consolidated affiliated Chinese entities pledged their respective
equity interests in these entities to our subsidiaries. The effectiveness of the pledges upon registration will be recognized by PRC courts if disputes arise
on certain pledged equity interests and that our subsidiaries’ interests as pledgees will prevail over those of third parties. Our equity pledges have been
duly registered with the relevant local branches of the SAMR.
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Furthermore, although we are not aware of any actual or threatened investigation, inquiry or other action by SEC, Nasdaq, or any other regulatory
authority with respect to consolidation of our consolidated affiliated Chinese entities, we cannot assure you that we will not be subject to any such
investigation or inquiry in the future. In the event we are subject to any regulatory investigation or inquiry relating to our consolidated affiliated Chinese
entities, including the consolidation of such entities into our financial statements, or any other matters, we may need to spend significant amount of time
and expenses in connection with the investigation or inquiry, our reputation may be harmed regardless of the outcome, and the trading price of our ADS
or ordinary share may materially decline or fluctuate.
If our consolidated affiliated Chinese entities violate our contractual arrangements with them, our business could be disrupted, our reputation may
be harmed and we may have to resort to litigation to enforce our rights, which may be time-consuming and expensive.
As the PRC government restricts foreign ownership of value-added telecommunications and travel agency businesses in China, we depend on our
consolidated affiliated Chinese entities, in which we have no ownership interest, to conduct part of our business activities through a series of contractual
arrangements, which are intended to provide us with effective control over these entities and allow us to obtain economic benefits from them. Although
we have been advised by our PRC legal counsel, Commerce & Finance Law Offices, that the contractual arrangements as described in this annual report
are valid, binding, and enforceable under current PRC laws, these arrangements are not as effective in providing control as direct ownership of these
businesses. For example, our consolidated affiliated Chinese entities could violate our contractual arrangements with them by, among other things,
failing to pay us for our consulting or other services. In any such event, we would have to rely on the PRC legal system for the enforcement of those
agreements, which could have uncertain results. Any legal proceeding could result in the disruption of our business, damage to our reputation, diversion
of our resources and incurrence of substantial costs. See “—Risks Relating to Doing Business in China—Uncertainties with respect to the PRC legal
system could adversely affect us.”
The principal shareholders of our consolidated affiliated Chinese entities have potential conflict of interest with us, which may adversely affect our
business.
Some of our directors and officers were also the principal shareholders of our consolidated affiliated Chinese entities as of the date of this annual
report. Thus, conflict of interest between their duties to our company and their interests in our consolidated affiliated Chinese entities may arise. We
cannot assure you that when conflict of interest arises, these persons will act entirely in our interests or that the conflict of interest will be resolved in our
favor. In addition, these persons could violate their non-competition obligations under service contracts with us or their legal duties by diverting
business opportunities from us to others, resulting in our loss of corporate opportunities. In any such event, we would have to rely on the PRC legal
system for the enforcement of these agreements, which could have uncertain results. Any legal proceeding could result in the disruption of our business,
diversion of our resources and incurrence of substantial costs. See “—Risks Relating to Doing Business in China— Uncertainties with respect to the
PRC legal system could adversely affect us.”
Our business may be significantly affected by the PRC Foreign Investment Law.
The PRC Foreign Investment Law was approved by the PRC National People’s Congress on March 15, 2019 and became effective from
January 1, 2020. The PRC Foreign Investment Law has repealed the PRC Wholly Foreign-owned Enterprise Law, the PRC Sino-foreign Equity Joint
Venture Law, and the PRC Sino-foreign Cooperative Joint Venture Law. Therefore, establishment and operation of companies in China, including FIEs,
will generally follow the PRC Company Law unless specifically provided for in the new PRC Foreign Investment Law, in which case the provisions of
the new PRC Foreign Investment Law will prevail. In December 2019, the Implementing Regulation of the Foreign Investment Law was promulgated
by the State Council and became effective from January 1, 2020.
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The PRC Foreign Investment Law does not touch upon the relevant concepts and regulatory regimes that were historically suggested for the
regulation of VIE (referred to herein as consolidated affiliated Chinese entity) structures, and thus this regulatory topic remains unclear thereunder.
Therefore, substantial uncertainties with respect to its implementation and interpretation exist, and it is also possible that the VIE entities will be deemed
as FIEs and be subject to restrictions in the future. Such restrictions may cause interruptions to our operations and may incur additional compliance cost,
which may in turn materially and adversely affect our business, financial condition, and results of operations.
Our contractual arrangements with our consolidated affiliated Chinese entities may result in adverse tax consequences to us.
As a result of our corporate structure and the contractual arrangements between us and our consolidated affiliated Chinese entities, we are
effectively subject to the 6% PRC value-added tax, or VAT, on both revenues generated by our consolidated affiliated Chinese entities’ operations in
China and revenues derived from our contractual arrangements with our consolidated affiliated Chinese entities. We might be subject to adverse tax
consequences if the PRC tax authorities were to determine that the contracts between us and our consolidated affiliated Chinese entities were not made
on an arm’s length basis and therefore constitute favorable transfer pricing arrangements. If this occurs, the PRC tax authorities could request that our
consolidated affiliated Chinese entities adjust their taxable income upward for PRC tax purposes. Such an adjustment could adversely affect us by
increasing our consolidated affiliated Chinese entities’ tax expenses without reducing our tax expenses, which could subject our consolidated affiliated
Chinese entities to late payment fees and other penalties for underpayment of taxes, and/or result in the loss of the tax benefits available to our
subsidiaries in China. The EIT Law requires every enterprise in China to submit its annual enterprise income tax return together with a report on
transactions with its affiliates to the relevant tax authorities. The tax authorities may impose reasonable adjustments on taxation if they have identified
any related party transactions that are inconsistent with arm’s length principles. As a result, our contractual arrangements with our consolidated affiliated
Chinese entities may result in adverse tax consequences to us.
Our PRC subsidiaries are subject to restrictions on paying dividends or making other payments to us while our consolidated affiliated Chinese
entities can only make payments to us in accordance with the contractual arrangements, which may restrict our ability to satisfy our liquidity
requirements.
We are a holding company incorporated in the Cayman Islands. We rely on dividends from our PRC subsidiaries and service fees paid to us by our
consolidated affiliated Chinese entities. Under the PRC laws and regulations, our PRC subsidiaries cannot distribute any dividends until any losses from
prior fiscal years have been offset. Also, our PRC subsidiaries cannot distribute their statutory reserve, which refers to the statutory reserve funds that
PRC entities are required to set aside in accordance with PRC laws and regulations from their respective after-tax profit each year, if any, until such
statutory reserve funds reach 50% of the registered capital of the respective PRC subsidiaries, as cash dividends. Meanwhile, our consolidated affiliated
Chinese entities can only make payments to us in accordance with the contractual arrangements that we entered with them. Moreover, as our PRC
subsidiaries and consolidated affiliated Chinese entities may incur debt on their own behalf, some of the instruments governing the debt may also restrict
their ability to pay dividends or make other payments to us, which may in turn restrict our ability to satisfy our liquidity requirements. If, in the future,
the accumulated earnings of our consolidated affiliated Chinese entities exceed the service fees paid to our PRC subsidiaries (or if the current and
contemplated fee structure between the intercompany entities is determined to be non-substantive and disallowed by the PRC tax authorities), our
consolidated affiliated Chinese entities could make a non-deductible transfer to our PRC subsidiaries for the amounts of the stranded cash in our
consolidated affiliated Chinese entities. This would result in such transfer being non-deductible expenses for our consolidated affiliated Chinese entities
but still taxable income for the PRC subsidiaries. Such a transfer and the related tax burdens would reduce our after-tax income to approximately 50.6%
of the pre-tax income. Our management believes that there is only a remote possibility that this scenario would happen.
Pursuant to the EIT Law, its implementing rules and a circular of Taxation on Several Preferential Policies on Enterprise Income Tax issued by the
PRC Ministry of Finance, or MOF, and PRC State Taxation Administration, or the STA, in February 2008, the dividends declared out of the profits
earned after January 1, 2008 by an FIE to its immediate offshore holding company are subject to a 10% withholding tax unless such offshore holding
company’s jurisdiction of incorporation has a tax treaty with China that provides for a different withholding arrangement, and certain supplementary
requirements and procedures stipulated by STA for such tax treaty are met and observed. Some of our PRC subsidiaries are considered FIEs that are
directly or indirectly held by our subsidiaries in Hong Kong. According to the currently effective tax treaty between mainland China and Hong Kong,
dividends payable by an FIE in China to a company in Hong Kong that directly holds at least 25% of the equity interests in the FIE will be subject to a
withholding tax of 5%.
Under the Notice of the State Taxation Administration on Issues regarding the Implementation of the Dividend Provision in Tax Treaties
promulgated in February 2009, the taxpayer needs to satisfy certain conditions to enjoy the benefits under a tax treaty. These conditions include, but are
not limited to: (i) the taxpayer must be the beneficial owner of the relevant dividends, and (ii) the corporate shareholder to receive dividends from the
PRC subsidiaries must have met the direct ownership thresholds during the 12 consecutive months preceding the receipt of the dividends. Further, the
STA promulgated the Announcement of the Certain Issues with Respect to the “Beneficial Owner” in Tax Treaties in February 2018, which sets forth
certain detailed factors in determining “beneficial owner” status, and specifically, if an applicant’s business activities do not constitute substantive
business activities, the applicant will not qualify as a “beneficial owner.”
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Entitlement to a lower tax rate on dividends according to tax treaties or arrangements between the PRC central government and governments of
other countries or regions is further subject to the Administrative Measures for Non-Resident Taxpayers to Enjoy Treatments under Tax Treaties
promulgated by the STA on October 14, 2019 and became effective from January 1, 2020, which provides that non-resident enterprises are not required
to obtain pre-approval from the relevant tax authority in order to enjoy the reduced withholding tax. Instead, non-resident enterprises and their
withholding agents may, by self-assessment and on confirmation that the prescribed criteria to enjoy the tax treaty benefits are met, directly apply the
reduced withholding tax rate, collect and retain relevant materials for reference in accordance with these treaties, and accept supervision and
management from the tax authorities afterwards. As a result, we cannot assure you that we will be entitled to any preferential withholding tax rate under
tax treaties for dividends received from our PRC subsidiaries.
If we are classified as a PRC resident enterprise for PRC enterprise income tax purposes, such classification could result in unfavorable tax
consequences to us and our non-PRC shareholders and ADS holders.
Under the EIT Law and its implementation rules, an enterprise established outside of China with its “de facto management body” within China is
considered a PRC resident enterprise and will be subject to enterprise income tax at the rate of 25% on its worldwide income. The “de facto
management body” is defined as the organizational body that effectively exercises overall management and control over production and business
operations, personnel, finance and accounting, and properties of the enterprise. It remains unclear how the PRC tax authorities will interpret such a
broad definition. If the PRC tax authorities determine that we should be classified as a PRC resident enterprise for PRC tax purposes, our global income
will be subject to income tax at a uniform rate of 25%, which may have a material adverse effect on our financial condition and results of operations.
Notwithstanding the foregoing provision, the EIT Law also provides that, if a PRC resident enterprise directly invests in another PRC resident
enterprise, the dividends received by the investing PRC resident enterprise from the invested PRC resident enterprise are exempted from income tax,
subject to certain conditions. However, it remains unclear how the PRC tax authorities will interpret the PRC tax resident treatment of an offshore
company with indirect ownership interests in PRC resident enterprises through intermediary holding companies.
Moreover, under the EIT Law and its implementation rules, foreign shareholders and ADS holders that are non-PRC resident enterprises may be
subject to a 10% withholding tax upon dividends payable by an entity that is considered as a PRC resident enterprise and gains realized on the sale or
other disposition of ADSs or our ordinary shares, if such income is considered as income derived from within China. Any such tax would reduce the
returns on your investment in our ordinary shares or ADSs. Furthermore, if we are deemed as a PRC resident enterprise, dividends paid to foreign ADS
holders or shareholders that are non-PRC individuals may be subject to a 20% withholding tax, and gain realized on the sale or disposition of ADSs or
ordinary shares of such foreign ADS holders or shareholders may be subject to 20% withholding tax, if such income is considered as derived from
within China.
Any PRC tax liability may be reduced by an applicable tax treaty, but it is unclear whether non-PRC holders of our ordinary shares or ADSs
would be able to obtain the benefits of any tax treaties between their country of tax residence and China in the event that we are treated as a PRC
resident enterprise. Any such tax would reduce the returns on your investment in our ordinary shares or ADSs.
If we exercise the option to acquire equity ownership in our consolidated affiliated Chinese entities, such ownership transfer requires approval from
or filings with PRC governmental authorities and subject to taxation, which may result in substantial costs to us.
Pursuant to the relevant contractual arrangements, the primary beneficiaries of our consolidated affiliated Chinese entities have their respective
exclusive rights to purchase all or any part of the equity interests in the applicable consolidated affiliated Chinese entities of ours from the respective
shareholders of these consolidated affiliated Chinese entities for a price that is the higher of (i) the amount of capital contribution to such consolidated
affiliated Chinese entities, or the consideration paid in exchange for the equity interests in such consolidated affiliated Chinese entities, or (ii) another
minimum price as permitted by the then applicable PRC laws. Such equity transfers may be subject to approvals from, or filings with, relevant PRC
authorities. In addition, the relevant equity transfer prices may be subject to review and adjustment for tax determination by the relevant tax authorities.
Moreover, the shareholders of our consolidated affiliated Chinese entities, under the circumstances of such equity transfers, will be subject to PRC
individual income tax on the difference between the equity transfer prices and the then current registered capital of the relevant consolidated affiliated
Chinese entities. The shareholders of such consolidated affiliated Chinese entities will pay, after deducting such taxes, the remaining amount to the
primary beneficiaries of the consolidated affiliated Chinese entities, as appropriate, under the applicable contractual arrangements. The amount to be
received by the primary beneficiaries of the consolidated affiliated Chinese entities may also be subject to enterprise income tax.
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We face uncertainty with respect to indirect transfer of equity interests in PRC resident enterprises by their non-PRC holding companies.
We face uncertainties regarding the reporting on and consequences of previous private equity financing transactions involving the transfer and
exchange of shares in our company by non-PRC resident investors. According to the Notice on Strengthening Administration of Enterprise Income Tax
for Share Transfers by Non-PRC Resident Enterprises issued by STA on December 10, 2009, or STA Circular 698, where a non-PRC resident enterprise
transfers the equity interests in a PRC resident enterprise indirectly through a disposition of equity interests in an offshore holding company (other than a
purchase and sale of shares issued by a PRC resident enterprise in public securities market), or an Indirect Transfer, the non-PRC resident enterprise, as
the seller, may be subject to PRC enterprise income tax of up to 10% of the gains derived from the Indirect Transfer in certain circumstances.
On February 3, 2015, STA issued Announcement on Several Issues Concerning the Enterprise Income Tax on Indirect Property Transfers by
Non-RPC Resident Enterprises, or STA Notice No. 7, to supersede the tax rules in relation to the tax treatment of the Indirect Transfer, while the other
provisions of STA Circular 698 irrelevant to the Indirect Transfer remain in force. STA Notice No. 7 introduces a new tax regime that is significantly
different from that under a notice issued by STA Circular 698. It extends STA’s tax jurisdiction to capture not only the Indirect Transfer as set forth
under STA Circular 698 but also transactions involving indirect transfer of (i) real properties in China and (ii) assets of an “establishment or place”
situated in China, by a non-PRC resident enterprise through a disposition of equity interests in an offshore company. STA Notice No. 7 also extends the
interpretation with respect to the disposition of equity interests in an offshore company broadly. In addition, STA Notice No. 7 further clarifies how to
assess reasonable commercial purposes and introduces safe harbors applicable to internal group restructurings. However, it also brings challenges to
both offshore transferor and transferee as they are required to make self-assessment on whether an Indirect Transfer or similar transaction should be
subject to PRC tax and whether they should file or withhold any tax payment accordingly. On October 17, 2017, the STA issued a Notice Concerning
Withholding Income Tax of Non-Resident Enterprise, or STA Notice No. 37, which abolishes STA Circular 698 and certain provision of STA Notice 7.
STA Notice No. 37 further reduces the burden of withholding obligator, such as revocation of contract filing requirements and tax liquidation
procedures, strengthens the cooperation of tax authorities in different places, and clarifies the calculation of tax payable and mechanism of foreign
exchange.
There is uncertainty as to the application of STA Notice No. 7 and STA Notice No. 37. In the event that non-PRC resident investors were involved
in our private equity financing transactions and such transactions were determined by the competent tax authorities as lack of reasonable commercial
purposes, we and our non-PRC resident investors may become at risk of being taxed under and STA Notice No. 7 and STA Notice No. 37 and may be
required to expend costly resources to comply with and STA Notice No. 7 and STA Notice No. 37, or to establish a case to be tax exempt under STA
Notice No. 7 and STA Notice No. 37, which may cause us to incur additional costs and may have a negative impact on the value of your investment in
us.
The PRC tax authorities have discretion under STA Notice No. 7 and STA Notice No. 37 to adjust the taxable capital gains based on the difference
between the fair value of the transferred equity interests and the investment cost. We may pursue acquisitions in the future that may involve complex
corporate structures. If we are deemed as a non-PRC resident enterprise under the EIT Law and if the PRC tax authorities adjust the taxable income of
the transactions under STA Notice No. 7 and STA Notice No. 37, our income tax expenses associated with such potential acquisitions will increase,
which may have an adverse effect on our financial condition and results of operations.
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Risks Relating to Doing Business in China
Adverse changes in economic and political policies of the PRC government could have a material adverse effect on the overall economic growth of
China, which could adversely affect our business.
Substantially all of our operations are located in China. Accordingly, our business, prospects, financial condition and results of operations may be
influenced to a significant degree by political, economic and social conditions in China generally and by continued economic growth in China as a
whole.
The Chinese economy differs from the economies of most developed countries in many respects, including the amount of government
involvement, level of development, growth rate, control of foreign exchange and allocation of resources. Although the Chinese government has
implemented measures emphasizing the utilization of market forces for economic reform, the reduction of state ownership of productive assets and the
establishment of improved corporate governance in business enterprises, a substantial portion of productive assets in China are still owned by the
government. In addition, the Chinese government continues to play a significant role in regulating industry development by imposing industrial policies.
The Chinese government also exercises significant control over China’s economic growth through allocating resources, controlling payment of foreign
currency-denominated obligations, setting monetary policy and providing preferential treatment to particular industries or companies.
While the Chinese economy has experienced significant growth over the past decades, growth has been uneven, both geographically and among
various sectors of the economy. The Chinese government has implemented various measures to encourage economic growth and guide the allocation of
resources. Some of these measures may benefit the overall Chinese economy, but may have a negative effect on us. For example, our financial condition
and results of operations may be adversely affected by government control over capital investments or changes in tax regulations. In addition, in the past
the Chinese government has implemented certain measures, including interest rate increases, to control the pace of economic growth. These measures
may cause decreased economic activity in China. The growth rate of the Chinese economy has gradually slowed since 2010, and the impact of the
COVID-19 pandemic on the Chinese economy in 2020 was severe. Any prolonged slowdown in the Chinese economy may reduce the demand for our
products and services and materially and adversely affect our business and results of operations.
The PRC government’s significant oversight and discretion over our business operation could result in a material adverse change in our operations
and the value of our ADSs and ordinary shares.
We conduct our business primarily in China. Our operations in China are governed by PRC laws and regulations. PRC government has significant
oversight and discretion over the conduct of our business, and may intervene or influence our operations as the government deems appropriate to
advance regulatory and societal goals and policy positions. The PRC government has recently published new policies that significantly affected certain
industries and we cannot rule out the possibility that it will in the future release regulations or policies that directly or indirectly affect our industry or
require us to seek additional permission to continue our operations, which could result in a material adverse change in our operation and/or the value of
our ADSs and ordinary shares. Therefore, investors of our company face potential uncertainty from actions taken by the PRC government affecting our
business.
The PCAOB is currently unable to inspect our auditor in relation to their audit work performed for our financial statements and the inability of the
PCAOB to conduct inspections over our auditor deprives our investors with the benefits of such inspections.
Our auditor, the independent registered public accounting firm that issues the audit report included elsewhere in this annual report, as an auditor of
companies that are traded publicly in the United States and a firm registered with the Public Company Accounting Oversight Board (United States), or
the PCAOB, is subject to laws in the United States pursuant to which the PCAOB conducts regular inspections to assess its compliance with the
applicable professional standards. Since our auditor is located in China, a jurisdiction where the PCAOB has been unable to conduct inspections without
the approval of the PRC authorities, our auditor is not currently inspected by the PCAOB. As a result, we and investors in our ADSs are deprived of the
benefits of such PCAOB inspections. The inability of the PCAOB to conduct inspections of auditors in China makes it more difficult to evaluate the
effectiveness of our independent registered public accounting firm’s audit procedures or quality control procedures as compared to auditors outside of
China that are subject to the PCAOB inspections, which could cause investors and potential investors in our ADSs to lose confidence in our audit
procedures and reported financial information and the quality of our financial statements.
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Our ADSs will be prohibited from trading in the United States under the Holding Foreign Companies Accountable Act, or the HFCAA, in 2024 if
the PCAOB is unable to inspect or fully investigate auditors located in China, or in 2023 if proposed changes to the law are enacted. The delisting of
our ADSs, or the threat of their being delisted, may materially and adversely affect the value of your investment.
The HFCAA was signed into law on December 18, 2020. The HFCAA states that if the SEC determines that we have filed audit reports issued by
a registered public accounting firm that has not been subject to inspection for the PCAOB for three consecutive years beginning in 2021, the SEC will
prohibit our shares or ADSs from being traded on a national securities exchange or in the over-the-counter trading market in the United States. On
December 2, 2021, the SEC adopted final amendments implementing the disclosure and submission requirements of the HFCAA, pursuant to which the
SEC will identify an issuer as a “Commission-Identified Issuer” if the issuer has filed an annual report containing an audit report issued by a registered
public accounting firm that the PCAOB has determined it is unable to inspect or investigate completely, and will then impose a trading prohibition on an
issuer after it is identified as a Commission-Identified Issuer for three consecutive years. On December 16, 2021, the PCAOB issued a report to notify
the SEC of its determination that the PCAOB is unable to inspect or investigate completely registered public accounting firms headquartered in
mainland China and Hong Kong. The PCAOB identified our auditor as one of the registered public accounting firms that the PCAOB is unable to
inspect or investigate completely. Therefore, we expect to be identified as a “Commission-Identified Issuer” shortly after the filing of this annual report
on Form 20-F.
Whether the PCAOB will be able to conduct inspections of our auditor before the issuance of our financial statements on Form 20-F for the year
ending December 31, 2023, which is due by April 30, 2024, or at all, is subject to substantial uncertainty and depends on a number of factors out of our,
and our auditor’s, control. If our shares and ADSs are prohibited from trading in the United States, there is no certainty that we will be able to list on a
non-U.S. exchange or that a market for our shares will develop outside of the United States. Such a prohibition would substantially impair your ability to
sell or purchase our ADSs when you wish to do so, and the risk and uncertainty associated with delisting would have a negative impact on the price of
our ADSs. Also, such a prohibition would significantly affect our ability to raise capital on terms acceptable to us, or at all, which would have a material
adverse impact on our business, financial condition, results of operations, and prospects.
On June 22, 2021, the U.S. Senate passed a bill, which would reduce the number of consecutive non-inspection years required for triggering the
prohibitions under the HFCAA from three years to two. On February 4, 2022, the U.S. House of Representatives passed a bill, which contained, among
other things, an identical provision. If this provision is enacted into law and the number of consecutive non-inspection years required for triggering the
prohibitions under the HFCAA is reduced from three years to two, then our shares and ADSs could be prohibited from trading in the United States in
2023.
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The approval of and the filing with the CSRC or other PRC government authorities may be required in connection with our offshore offerings in the
future under PRC law, and, if required, we cannot predict whether or for how long we will be able to obtain such approval or complete such filing.
The Regulations on Mergers and Acquisitions of Domestic Enterprises by Foreign Investors, or the M&A Rules, adopted by six PRC government
authorities in 2006 and amended in 2009, requires an overseas special purpose vehicle formed for listing purposes through acquisitions of PRC domestic
companies and controlled by PRC persons or entities to obtain the approval of the CSRC prior to the listing and trading of such special purpose vehicle’s
securities on an overseas stock exchange. The interpretation and application of the regulations remain unclear, and our offshore offerings may ultimately
require approval of the CSRC. If the CSRC approval is required, it is uncertain whether we can or how long it will take us to obtain the approval and,
even if we obtain such CSRC approval, the approval could be rescinded. Any failure to obtain or delay in obtaining the CSRC approval for any of our
offshore offerings, or a rescission of such approval if obtained by us, would subject us to sanctions imposed by the CSRC or other PRC government
authorities, which could include fines and penalties on our operations in China, restrictions or limitations on our ability to pay dividends outside of
China, and other forms of sanctions that may materially and adversely affect our business, financial condition, and results of operations.
On July 6, 2021, the relevant PRC government authorities issued Opinions on Lawfully and Strictly Cracking Down Illegal Securities Activities.
On December 24, 2021, the CSRC issued a draft of the Provisions of the State Council on the Administration of Overseas Securities Offering and
Listing by Domestic Companies, or the Draft Overseas Listing Provisions, and a draft of Administrative Measures for the Filing of Overseas Securities
Offering and Listing by Domestic Companies, or the Draft Filing Measures, for public comments. The Draft Overseas Listing Provisions and the Draft
Filing Measures propose to establish a new filing-based regime to regulate overseas offerings and listings, both directly or indirectly, by domestic
companies. Relatedly, on December 27, 2021, the NDRC and the Ministry of Finance, jointly issued the Special Administrative Measures (Negative
List) for Foreign Investment Access (2021 Version), or the 2021 Negative List, which took effect on January 1, 2022. Pursuant to the 2021 Negative
List, if a PRC domestic company engaging in the prohibited business stipulated in the 2021 Negative List seeks an overseas offering and listing, it must
obtain the approval from the competent government authorities. Besides, foreign investors cannot be involved in our company’s operation and
management, and their shareholding percentages must be subject, mutatis mutandis, to the relevant regulations on the domestic security investments by
foreign investors. As the 2021 Negative List is relatively new, substantial uncertainties remain as to the interpretation and implementation of these new
requirements, and it is unclear as to whether and to what extent listed companies like us will be subject to these new requirements. If we are required to
comply with these requirements and fail to do so on a timely basis, if at all, our business operation, financial condition, results of operations, and
business prospect may be materially and adversely affected. For details of those effective and draft regulations, see “Item 4. Information of the Company
—B. Business Overview—PRC Government Regulations—Regulations Related to M&A and Overseas Listings.”
As of the date of this annual report, the Draft Overseas Listing Provisions and the Draft Filing Measures were released for public comment only.
There are uncertainties as to whether the Draft Overseas Listing Provisions and the Draft Filing Measures would be further amended, revised, or
updated. Substantial uncertainties exist with respect to the enactment timetable and final content of the Draft Overseas Listing Provisions and the Draft
Filing Measures. As the CSRC may formulate and publish guidelines for filings in the future, the Draft Filing Measures does not provide for detailed
requirements of the substance and form of the filing documents. In a Q&A released on its official website, the respondent CSRC official indicated that
the proposed new filing requirement will start with new companies and the existing companies seeking to carry out activities like follow-on financing.
As for the filings for the existing companies, the regulator will grant adequate transition period and apply separate arrangements. The Q&A also
addressed the contractual arrangements and pointed out that if relevant domestic laws and regulations have been observed, companies with compliant
VIE structure may seek overseas listing after completion of the CSRC filings. Nevertheless, it does not specify what qualify as compliant VIE structures
and what relevant domestic laws and regulations are required to be complied with. Given the substantial uncertainties surrounding the latest CSRC filing
requirements at this stage, we cannot assure you that we will be able to complete the filings and fully comply with the relevant new rules on a timely
basis, if at all.
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In addition, we cannot assure you that any new rules or regulations promulgated in the future will not impose additional requirements on us. If it is
determined in the future that approval and filing from the CSRC or other government authorities or other procedures, including the cybersecurity review
under the enacted version of the revised Cybersecurity Review Measures and the Administrative Measures on Network Data Security (Draft for
Comment), are required for our offshore offerings, it is uncertain whether we can or how long it will take us to obtain such approval or complete such
filing procedures and any such approval or filing could be rescinded or rejected. Any failure to obtain or delay in obtaining such approval or completing
such filing procedures for our offshore offerings, or a rescission of any such approval or filing if obtained by us, would subject us to sanctions by the
CSRC or other PRC government authorities for failure to seek CSRC approval or filing or other government authorization for our offshore offerings.
These government authorities may impose fines and penalties on our operations in China, limit our ability to pay dividends outside of China, limit our
operating privileges in China, delay or restrict the repatriation of the proceeds from our offshore offerings into China or take other actions that could
materially and adversely affect our business, financial condition, results of operations, and prospects, as well as the trading price of our listed securities.
The CSRC or other PRC government authorities also may take actions requiring us, or making it advisable for us, to halt our offshore offerings before
settlement and delivery of the shares offered. Consequently, if investors engage in market trading or other activities in anticipation of and prior to
settlement and delivery, they do so at the risk that settlement and delivery may not occur. In addition, if the CSRC or other government authorities later
promulgate new rules or explanations requiring that we obtain their approvals or accomplish the required filing or other regulatory procedures for our
prior offshore offerings, we may be unable to obtain a waiver of such approval requirements, if and when procedures are established to obtain such a
waiver. Any uncertainties or negative publicity regarding such approval requirement could materially and adversely affect our business, prospects,
financial condition, results of operations, reputation, and the trading price of our listed securities.
We face uncertainties with respect to the interpretation and implementation of the Anti-Monopoly Guidelines and other anti-monopoly and
competition laws and how it may impact our business operations.
In February 2021, the Anti-Monopoly Guidelines was promulgated by the Antimonopoly Commission of the PRC State Council. The Anti-
Monopoly Guidelines is consistent with the Anti-Monopoly Law of PRC and prohibits monopoly agreements, abuse of dominant position and
concentration of undertakings that may have the effect of eliminating or restricting competitions in the field of platform economy. More specifically, the
Anti-Monopoly Guidelines for Internet Platforms outlines certain practices that may, if without justifiable reasons, constitute abuse of dominant
position, including without limitation, tailored pricing using big data and analytics, actions or arrangements seen as exclusivity arrangements, using
technology means to block competitors’ interface, using bundled services to sell services or products, and compulsory collection of user data. Besides,
Anti-Monopoly Guidelines for Internet Platforms expressly states that concentration involving consolidated affiliated Chinese entities will also be
subject to antitrust filing requirements.
In April 2021, the State Administration for Market Regulation, or the SAMR, together with certain other PRC government authorities convened
an administrative guidance meeting, focusing on unfair competition acts in community group buying, self-inspection and rectification by major internet
companies of possible violations of anti-monopoly, anti-unfair competition, tax and other related laws and regulations, and requesting such companies to
comply with relevant laws and regulations strictly and be subject to public supervision. In addition, many internet companies, including over 30
companies which attended such administrative guidance meeting, are required to conduct a comprehensive self-inspection and make necessary
rectification accordingly. The SAMR stated that it will organize and conduct inspections on the companies’ rectification results. If a company is found to
conduct illegal activities, more severe penalties are expected to be imposed in accordance with the laws.
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On August 17, 2021, the SAMR issued the Provisions on Preventing Unfair Online Competition (Draft for Comments), which detailed the
implementation of the PRC Unfair Competition Law, including specifying certain online unfair competition behaviors that should be prohibited. As of
the date of this annual report, the provisions have not been formally adopted, and due to the lack of further clarification, there are still uncertainties
regarding the interpretation and implementation of the provisions.
Since the regulatory and enforcement regime in relation to anti-monopoly and competition the relatively new and rapidly evolving, substantial
uncertainties remain in relation to its interpretation and implementation. Although we do not believe we engage in any of the foregoing situations, we
cannot assure you that our business operations will comply with such regulation in all respects, and any failure or perceived failure by us to comply with
such regulation may result in governmental investigations, fines and/or other sanctions on us.
Inflation in China may disrupt our business and have an adverse effect on our financial condition and results of operations.
The Chinese economy has experienced rapid expansion together with rising rates of inflation. Inflation may erode disposable incomes and
consumer spending, which may have an adverse effect on the Chinese economy and lead to a reduction in business and leisure travel as the travel
industry is highly sensitive to business and personal discretionary spending levels. This in turn could adversely impact our business, financial condition,
and results of operations.
Future movements in exchange rates between U.S. dollars and Renminbi may adversely affect the value of our ordinary shares or ADSs.
The conversion of Renminbi into foreign currencies, including U.S. dollars, is largely based on rates set by the People’s Bank of China. Renminbi
has fluctuated against U.S. dollars, at times significantly and unpredictably. The value of Renminbi against U.S. dollars and other currencies is affected
by changes in China’s political and economic conditions and by China’s foreign exchange policies, among other things. We cannot assure you that
Renminbi will not appreciate or depreciate significantly in value against U.S. dollars in the future. It is difficult to predict how market forces or PRC or
U.S. government policy may impact the exchange rate in the future.
The majority of our revenues and cost are denominated in Renminbi, while a portion of our financial assets, financial liabilities, and our dividend
payments are denominated in U.S. dollars. Very limited hedging options are available in China to reduce our exposure to exchange rate fluctuations. We
may use foreign exchange spot, forward, or other contracts to help hedge our exposure to foreign currency risk where we deem necessary, and may
adopt additional measures in the future to manage such risk. Any significant revaluation of Renminbi or U.S. dollars may adversely affect our cash
flows, earnings and financial position, and the value of, and any dividends payable on, our ADSs. For example, an appreciation of Renminbi against
U.S. dollars would make any new Renminbi-denominated investments or expenditures more costly to us, to the extent that we need to convert U.S.
dollars into Renminbi for such purposes. An appreciation of Renminbi against U.S. dollars would also result in foreign currency translation losses for
financial reporting purposes when we translate our U.S. dollar-denominated financial assets into Renminbi, our reporting currency. Conversely, if we
decide to convert Renminbi into U.S. dollars for the purpose of making payments relating to financial liabilities or making payments for dividends on
our ordinary shares or the ADSs or for other business purposes, appreciation of U.S. dollars against Renminbi would have a negative effect on the U.S.
dollar amount available to us.
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Restrictions on currency exchange may limit our ability to receive and use our revenues effectively.
Because the majority of our revenues are denominated in Renminbi, any restrictions on currency exchange may limit our ability to use Renminbi-
denominated revenues to fund our business activities outside China or to make dividend payments in U.S. dollars. The principal PRC regulation
governing foreign currency exchange is the Regulations on Administration of Foreign Exchange, as amended, or the Forex Regulations. Under the
Forex Regulations, Renminbi is freely convertible for trade- and service-related foreign exchange transactions, but not for direct investment, loan or
investment in securities outside China unless prior approval of the SAFE is obtained. Although the PRC regulations now allow greater convertibility of
Renminbi for current account transactions, significant restrictions remain. For example, foreign exchange transactions under our subsidiaries’ capital
account, including principal payments in respect of foreign currency-denominated obligations, remain subject to significant foreign exchange controls
and the approval of SAFE. These limitations could affect our ability to obtain foreign exchange for capital expenditures. We cannot be certain that the
PRC regulatory authorities will not impose more stringent restrictions on the convertibility of Renminbi, especially with respect to foreign exchange
transactions.
PRC regulations relating to the establishment of offshore special purpose vehicles by PRC residents and the grant of employee stock options by
overseas-listed companies may subject our PRC resident shareholders to personal liability and limit our ability to inject capital into our PRC
subsidiaries, limit our subsidiaries’ ability to distribute profits to us, or otherwise adversely affect us.
SAFE issued the Circular of the SAFE on Foreign Exchange Administration for Financing and Round-Trip Investments by Domestic Residents
via Overseas Special Purpose Vehicles, or SAFE Circular 75, in October 2005 requiring PRC residents to register with the local SAFE branches before
establishing or controlling any company outside of China for the purpose of capital financing with assets or equity interests in any onshore enterprise.
On July 4, 2014, SAFE issued the Circular of the SAFE on Foreign Exchange Administration of Overseas Investments and Financing and Round-Trip
Investments by Domestic Residents via Special Purpose Vehicles, or SAFE Circular 37, which has superseded SAFE Circular 75 and states that (i) a
PRC resident, including a PRC resident natural person or a PRC legal person, must register with the local branch of the SAFE before contributing its
assets or equity interest in domestic enterprises, or offshore assets or interests into a special purpose vehicle, for the purpose of investment and
financing; and (ii) when the special purpose vehicle undergoes changes in basic information, such as changes of its PRC resident natural person
shareholders, name or operating period, or occurrence of a material event, such as change in share capital, transfer or replacement of equity of a PRC
resident natural person, performance of merger or split, the PRC resident must register such change with the local branch of the SAFE in a timely
manner. If any PRC shareholder fails to make the required registration or update the previously filed registration, the PRC subsidiary of that offshore
parent company may be prohibited from distributing their profits and the proceeds from any reduction in capital, share transfer, or liquidation to their
offshore parent company, and the offshore parent company may also be prohibited from injecting additional capital into its PRC subsidiary. Moreover,
failure to comply with the various foreign exchange registration requirements described above could result in liability under PRC laws for evasion of
applicable foreign exchange restrictions.
We have notified holders of our ordinary shares who we know are PRC residents to register with the local SAFE branches as required under the
applicable foreign exchange regulations. The failure or inability of our PRC resident shareholders to comply with the registration procedures set forth
therein may subject them to fines and legal sanctions and may also limit our ability to contribute additional capital into our PRC subsidiaries, limit our
PRC subsidiaries’ ability to distribute profits to our company or otherwise adversely affect our business.
On February 15, 2012, SAFE promulgated the Circular on Relevant Issues Concerning Foreign Exchange Administration for Domestic
Individuals Participating in an Employees Share Incentive Plan of an Overseas-Listed Company, or the Share Incentive Rules, which replaced the prior
circular in 2007, named Application Procedure of Foreign Exchange Administration for Domestic Individuals Participating in an Employee Stock
Holding Plan or Stock Option Plan of an Overseas-Listed Company. Under the Share Incentive Rules, PRC resident individuals who participate in a
share incentive plan of an overseas publicly listed company are required to register with SAFE and complete certain other procedures. All such
participants need to retain a PRC agent through PRC subsidiaries to register with SAFE and handle foreign exchange matters such as opening accounts,
transferring and settlement of the relevant proceeds. The Share Incentive Rules further require an offshore agent to be designated to handle matters in
connection with the exercise of share options and sale of shares for the participants of share incentive plans. We and our PRC employees who have been
granted stock options are subject to the Share Incentive Rules. If we or our PRC optionees fail to comply with these regulations, we or our PRC
optionees may be subject to fines and legal sanctions.
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Uncertainties with respect to the PRC legal system could adversely affect us.
We conduct our business primarily through our wholly-owned subsidiaries incorporated in China. Our subsidiaries are generally subject to laws
and regulations applicable to foreign investment in China and, in particular, laws applicable to wholly foreign-owned enterprises, or WFOEs. In
addition, we depend on several consolidated affiliated Chinese entities in China to honor their service agreements with us. Almost all of these
agreements are governed by PRC law and disputes arising out of these agreements are expected to be decided by arbitration in China. The PRC legal
system is based on written statutes. Prior court decisions may be cited for reference but have limited precedential value. Since 1979, PRC legislation and
regulations have significantly enhanced the foreign investments in China. However, since the PRC legal system is still evolving, the interpretations of
many laws, regulations and rules are not always uniform and enforcement of these laws, regulations and rules involve uncertainties, which may limit
remedies available to us. In addition, any litigation in China may be protracted and result in substantial costs and diversion of resources and
management attention. If we and our consolidated affiliated Chinese entities are found to be in violation of any existing or future PRC laws or
regulations, or fail to obtain or maintain any of the required permits or approvals, the relevant PRC regulatory authorities would have broad discretion in
dealing with such violations, including restructuring. See “—Risks Relating to Our Corporate Structure—PRC laws and regulations restrict foreign
investment in the travel agency and value-added telecommunications businesses, and substantial uncertainties exist with respect to the application and
implementation of PRC laws and regulations” and “Risks Relating to Our Corporate Structure—Our business may be significantly affected by the PRC
Foreign Investment Law.”
Certain PRC regulations may make it more difficult for us to pursue growth through acquisitions.
Among other things, the Regulation on Mergers and Acquisitions of Domestic Enterprises by Foreign Investors, or the M&A Rules, adopted by
six PRC regulatory agencies in 2006 and amended in 2009, and certain other regulations and rules concerning mergers and acquisitions established
additional procedures and requirements that could make merger and acquisition activities by foreign investors more time-consuming and complex,
including requirements in some instances that the anti-monopoly law enforcement authority be notified in advance of any change-of-control transaction
in which a foreign investor takes control of a PRC domestic enterprise.
Moreover, the PRC Anti-Monopoly Law and Provisions of the State Council on Thresholds for Reporting of Concentrations of Operators require
that transactions which are deemed concentrations and involve parties with specified turnover thresholds (for example, during the previous fiscal year,
(i) the total global turnover of all operators participating in the transaction exceeds RMB10 billion and at least two of these operators each had a
turnover of more than RMB400 million within China, or (ii) the total turnover within China of all the operators participating in the concentration
exceeded RMB2 billion and at least two of these operators each had a turnover of more than RMB400 million within China) must be cleared by the anti-
monopoly law enforcement authority before they can be completed. On February 7, 2021, the SAMR further issued the Anti-Monopoly Guidelines that
aims at specifying some of the circumstances under which an activity of internet platforms may be identified as monopolistic act as well as setting out
merger controlling filing procedures involving variable interest entities. Due to the uncertainties associated with the evolving legislative activities and
varied local implementation practices of anti-monopoly and competition laws and regulations in China, it may be costly to adjust some of our business
practice in order to comply with these laws, regulations, rules, guidelines and implementations. If we are found to have violated the PRC Anti-
Monopoly Law for failing to file the notification of concentration and request for review, we could be subject to a fine of up to RMB500,000, and the
parts of the transaction causing the prohibited concentration could be ordered to be unwound. Such unwinding could affect our business and financial
results, and harm our reputation. Further, if any of our business cooperation arrangements with Qunar are determined to have violated the PRC Anti-
Monopoly Law, we could be subject to sanctions including an order to cease the relevant activities, confiscation of illegal gains and fines of 1% to 10%
of our sales revenues from the previous year. See “—Risks Relating to Our Business and Industry—Our strategy to acquire or invest in complementary
businesses and assets and establish strategic alliances involves significant risk and uncertainties that may have a material adverse effect on our business,
reputation, financial condition, and results of operations.”
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In addition, the Circular of the General Office of the State Council on the Establishment of Security Review System for the Merger and
Acquisition of Domestic Enterprises by Foreign Investors issued on February 3, 2011, and the Rules on Implementation of Security Review System for
the Merger and Acquisition of Domestic Enterprises by Foreign Investors issued by the PRC Ministry of Commerce, or MOFCOM, that became
effective on September 1, 2011, require acquisitions by foreign investors of PRC companies engaged in military-related or certain other industries that
are crucial to national security be subject to security review before consummation of any such acquisition. In December, 2020, the NDRC and the
MOFCOM further promulgated the Foreign Investment Security Review Measures, which took effect on January 18, 2021. These measures require
direct or indirect investment by foreign investors of PRC companies engaged in military-related or certain other industries be subject to security review
before consummation of any such investment. “Certain other industries” refer to, among others, important transportation services, important culture
products and services, important information technology and internet products and services, and important finance services that are crucial to national
security.
In order to grow our business, we may pursue potential strategic acquisitions that are complementary to our business and operations. Complying
with the requirements of these regulations to complete such transactions could be time-consuming, and any required approval processes, including
obtaining approval or clearance from MOFCOM, may delay or inhibit our ability to complete such transactions, which could affect our ability to expand
our business or maintain our market share.
It may be difficult for overseas regulators to conduct investigation or collect evidence within China.
Shareholder claims or regulatory investigation that are common in the United States or Hong Kong generally are difficult to pursue as a matter of
law or practicality in China. For example, in China, there are significant legal and other obstacles to providing information needed for regulatory
investigations or litigations initiated outside China. In April 2022, the CSRC released a Circular on Strengthening the Confidentiality and Archives
Administration Relating to Overseas Issuance and Listing of Securities by Domestic Companies (Draft for Comments), pursuant to which, a domestic
company must obtain approvals and make filings with relevant authorities when providing or publicly disclosing, by itself or through the overseas listing
entity, any document or material that involves state secret or public institution work secret. In addition, pursuant to the proposed regulation, any
investigation, collection of evidence or inspection targeting China-based issuers, securities companies and security service institutions proposed by
overseas securities regulatory authorities and relevant competent departments must be carried out through cross-border regulatory cooperation
mechanism and reported to CSRC or relevant competent departments in advance. As of the date of this annual report, such draft circular has not become
effective yet, and substantial uncertainties remain as to the enactment timetable, final content, interpretation and implementation in relation to such
proposed regulation. Although the authorities in China may establish a regulatory cooperation mechanism with the securities regulatory authorities of
another country or region to implement cross-border supervision and administration, such cooperation with the securities regulatory authorities in the
Unities States may not be efficient in the absence of mutual and practical cooperation mechanism. Furthermore, according to Article 177 of the PRC
Securities Law, which became effective in March 2020, no overseas securities regulator is allowed to directly conduct investigation or evidence
collection activities within the PRC territory, and, without the consent by the PRC securities regulatory authorities and the other competent government
agencies, no entity or individual may provide documents or materials related to securities business overseas. In addition, the Data Security Law and the
Personal Information Protection Law provide that no entity or individual within the PRC territory must provide any foreign judicial body and law
enforcement body with any data or any personal information stored within the PRC territory without the approval of the competent PRC government
authority. While detailed interpretation of or implementation rules under these laws have yet to be promulgated, the inability for an overseas securities
regulator to directly conduct investigation or evidence collection activities within China may further increase the difficulties you face in protecting your
interests.
PRC regulation of loans and direct investment by offshore holding companies to PRC entities may delay or prevent us from using the proceeds from
the offerings of any securities to make loans or additional capital contributions to our PRC operating subsidiaries.
As an offshore holding company, our ability to make loans or additional capital contributions to our PRC operating subsidiaries is subject to PRC
regulations and approvals and there are restrictions for us to make loans to our consolidated affiliated Chinese entities. These regulations and approvals
may delay or prevent us from using the proceeds we received in the past or will receive in the future from the offerings of securities to make loans or
additional capital contributions to our PRC operating subsidiaries and our consolidated affiliated Chinese entities, and impair our ability to fund and
expand our business which may adversely affect our business, financial condition and result of operations.
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For example, on March 30, 2015, SAFE promulgated a Circular on the Reforming of Administrative Methods Regarding the Foreign Exchange
Capital Settlement of Foreign-Invested Companies, or SAFE Circular 19, which became effective on June 1, 2015 and replaced the Circular on the
Relevant Operating Issues Concerning the Improvement of the Administration of the Payment and Settlement of Foreign Currency Capital of Foreign-
Invested Enterprises, or SAFE Circular 142. Previously, pursuant to SAFE Circular 142, the registered capital of an FIE settled in Renminbi converted
from foreign currencies may only be used within the business scope approved by the applicable government authority and may not be used for equity
investments in China, and the FIE may not change how it uses such capital without SAFE’s approval, and may not in any case use such capital to repay
Renminbi loans if they have not used the proceeds of such loans in accordance with SAFE’s approval. Although SAFE Circular 19 restates certain
restrictions on the use of investment capital denominated in foreign currency by FIEs, it specifies that the registered capital of an FIE whose main
business is investment, denominated in foreign currency, can be converted into Renminbi at the discretion of such FIE and can be used for equity
investment in China subject to the invested company’s filing of a reinvestment registration with the relevant local SAFE. On June 9, 2016, SAFE issued
the Circular on Reforming and Regulating the Administrative Policy of the Settlement under Capital Accounts, or SAFE Circular 16, which became
effective on the same date. Although SAFE Circular 16 further extends the reform to cover foreign currency income under capital account, including
capital, foreign debt and proceeds from offshore offering and listing, an FIE’s foreign currency income and such income settled in Renminbi under the
capital account cannot be used directly and indirectly for any purposes out of the FIE’s business scope or in areas prohibited by laws and regulations.
According to the Circular on Further Promoting the Facilitation of Cross-Border Trade and Investment promulgated by SAFE on October 23, 2019, or
SAFE Circular 28, non-investment FIEs are allowed to use their capital for equity investment in China provided that such investment is not in violation
of the currently effective Special Administrative Measures for Foreign Investment Access (Negative List) and the target investment projects are truthful
and compliant with relevant laws and regulations. According to the Circular on Optimizing the Administration of Foreign Exchange to Support the
Development of Foreign-related Business, or SAFE Circular 8, issued by the SAFE on April 10, 2020, eligible enterprises are allowed to make domestic
payments using the income under their capital accounts generated from their capital, foreign debt and overseas listing, without providing materials
evidencing the authenticity in advance, provided that the capital usage is authentic and compliant with the current capital account income usage
management regulations. The concerned bank is required to conduct spot checks in accordance with the relevant requirements. However, the
interpretation and enforcement of SAFE Circular 19, SAFE Circular 16, SAFE Circular 28, and SAFE Circular 8 remained to be subject to uncertainty.
In light of the various requirements imposed by PRC regulations on loans to and direct investment in PRC entities by offshore holding companies,
we cannot assure you that we will be able to complete the necessary government registrations or obtain the necessary government approvals on a timely
basis, if at all, with respect to future loans by us to our PRC subsidiaries or with respect to future capital contributions by us to our PRC subsidiaries. If
we fail to complete such registrations or obtain such approvals, our ability to use the proceeds we received from our various offerings and to capitalize
or otherwise fund our PRC operations may be negatively affected, which could materially and adversely affect our liquidity and our ability to fund and
expand our business.
We have attempted to comply with the PRC regulations regarding licensing requirements. If the PRC laws and regulations change, our business in
China may be adversely affected. Any lack of requisite approvals, licenses, or permits applicable to our business or any failure to comply with
applicable laws or regulations may materially and adversely affect our business, financial condition, and results of operations.
The PRC government regulates the internet and related industry extensively and these internet-related laws and regulations are relatively new and
evolving. New laws and regulations applicable to internet business and activities may be promulgated, and their interpretation and enforcement involve
significant uncertainties. If these new laws and regulations are promulgated, additional licenses may be required for our online operations. As a result,
under certain circumstances it may be difficult to determine what actions or omissions constitute violations of applicable laws and regulations. If our
operations do not comply with these new regulations at the time they become effective, or if we fail to obtain any licenses required under these new laws
and regulations, we could be subject to penalties.
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When entering into new businesses, we may encounter additional regulatory uncertainties. For example, at the beginning of 2020, we launched
our live streaming program to promote travel destinations across China with the latest deals on hotels, flights, excursion tickets and other products. On
November 12, 2020, the National Radio and Television Administration promulgated a Notice on Strengthening the Management of Online Show Live
Streaming and E-commerce Live Streaming, which requests live streaming platforms for online shows and e-commerce to be filed with the National
Radio and Television Administration. However, as this notice does not specifically define what live streaming platform for e-commerce is, it is unclear
whether our live streaming program mainly for the promotion of products sold on our own platform is subject to the notice. Based on our consultation
on January 28, 2021 with local counterpart of the National Radio and Television Administration, the competent authority of regulating live streaming
business, the live streaming business that we currently operate on our platform is not subject to filing with the National Radio and Television
Administration, in accordance with this notice. The National Radio and Television Administration is responsible for guiding the development and
publicity of online audio-visual program services, including live streaming businesses, supervising the audio-visual programs transmitted by information
networks and public carriers, reviewing their contents and qualities, and conducting investigation and punishing on illegal online audio-visual program
service. Should the relevant authorities decide that we are subject to this notice, our live streaming business may be subject to more restrictions and will
need to comply with additional requirements, which may increase our compliance costs and adversely impact our business, financial condition, and
results of operations.
In April 2021, the CAC, together with certain other PRC government authorities, promulgated the Administrative Measures for Live Streaming
Marketing (Trial), or the Live Streaming Marketing Measures, which became effective on May 25, 2021. According to the Live Streaming Marketing
Measures, all entities that conduct internet live streaming marketing activities must be subject to the administration and supervision of relevant
authorities. The Live Steaming Marketing Measures provides firstly the definition of the live streaming marketing platform, which includes internet live
streaming services platform, internet audio-video services platform, and e-commerce platform, and requests the live streaming marketing platform to be
filed and conduct safety assessments in accordance with relevant laws and regulations. License shall be obtained if required by relevant laws to engage
in live streaming marketing activities. Meanwhile, the live streaming marketing platform shall implement real-name registration system for all live
streaming operators and marketers on the platform.
In addition, the PRC government and regulatory authorities have adopted regulations governing content contained within videos, live streaming,
and other information over the internet. Under these regulations, internet content providers are prohibited from posting or displaying content that, among
other things, violates PRC laws and regulations, impairs the national dignity of China or the public interest, or is obscene, superstitious, fraudulent,
violent, or defamatory on the internet. Any failure to comply with these regulations may subject us to liability. We conduct content reviews regularly to
ensure the live streaming content on our platform comply with relevant laws and regulations, but we cannot assure you that our review process will
always guarantee zero violation of the content related laws and regulations. Reports or publicity of content on our platform that are fraudulent, obscene,
superstitious, or otherwise inappropriate may result in negative publicity, harm to our brand or a regulatory response that might have a material and
adverse impact on our business.
The interpretation and application of existing PRC laws, regulations and policies and upcoming new laws, regulations or policies relating to the
internet industry have created substantial uncertainties in the compliance of our business operations. We regularly communicate with the competent
government authorities to endeavor to stay compliant with applicable laws and regulations. If we fail to obtain or maintain the proper approvals,
licenses, or permits required by applicable laws and regulations, the competent government authorities have the power, among other things, to levy
fines, confiscate our income, revoke our business licenses, require us to discontinue our relevant business or impose restrictions on the affected portion
of our business. Any of these actions by the PRC government may have a material and adverse effect on our results of operations.
The continued growth of the Chinese internet market depends on the development of telecommunications infrastructure.
Almost all access to the internet in China is state-owned, and telecommunication operations are under administrative control and regulatory
supervision of the Ministry of Industry and Information Technology of the PRC, or the MIIT. In addition, the national networks in China connect to the
internet through government-controlled international gateways. These international gateways are the only channels through which a domestic PRC user
can connect to the international internet network. We rely on this infrastructure, primarily China Telecom and China Unicom, to provide data
communications capacity. Although the PRC government has announced plans to aggressively develop the national information infrastructure, we
cannot assure you that this infrastructure will be developed, or that it will be sufficiently upgraded to meet the specifications of the existing or future
technological advancement, such as 5G internet. In addition, we will have no access to alternative networks and services, on a timely basis if at all, in
the event of any infrastructure disruption or failure. The internet infrastructure in China may not support the demands associated with continued growth
in internet usage.
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In addition, we have no control over the costs of the services provided by telecommunication service providers. If the prices we pay for
telecommunications and internet services rise significantly, our results of operations may be materially and adversely affected. Furthermore, if internet
access fees or other charges to internet users increase, some users may be prevented from accessing the mobile internet and thus cause the growth of
mobile internet users to decelerate. Such deceleration may adversely affect our ability to continue to expand our user base and maintain our user
experience.
Certain of our leasehold interests in leased properties have not been registered with the relevant PRC government authorities as required by PRC
law, which may expose us to potential fines.
Certain of our leasehold interests in leased properties have not been registered with the relevant PRC government authorities as required by PRC
law, which may expose us to potential fines if we fail to remediate after receiving any notice from the relevant PRC government authorities. In case of
failure to register or file a lease, the parties to the unregistered lease may be ordered to make rectifications (which would involve registering such leases
with the relevant authority) before being subject to penalties. The penalty ranges from RMB1,000 to RMB10,000 for each unregistered lease, at the
discretion of the relevant authority. We are unable to control whether and when the applicable lessors will complete or cooperate with us to complete the
registration in a timely manner. In the event that a fine is imposed on both the lessor and lessee, and if we are unable to recover from the lessor any fine
paid by us, such fine will be borne by us.
General Risks Relating to Our Ordinary Shares and ADSs
The trading prices of our listed securities have been and are likely to continue to be volatile, which could result in substantial losses to our investors.
The trading price of our listed securities have been and are likely to continue to be volatile and could fluctuate widely in response to a variety of
factors, many of which are beyond our control. For example, the closing trading prices of our ADSs on the Nasdaq ranged from US$21.74 to US$44.57
per ADS in 2021, and the trading price of our ordinary shares ranged from HK$173.4 to HK$322.4 per share in 2021. In addition, the performance and
fluctuation of the market prices of other companies with business operations located mainly in China, especially internet and technology companies, that
have listed their securities in Hong Kong and/or the United States may affect the overall investor attitude towards Chinese public companies. The
securities of some of these companies have experienced and may continue to experience significant volatility, resulting from, among other things,
underperformance and deteriorating financial results, negative news or perceptions about inadequate corporate governance practices, and fraudulent
behaviors of such companies.
Consequently, the trading performance of our listed securities may be adversely and materially affected, regardless of our actual operation
performance.
In addition to market and industry factors, the prices and trading volume for listed securities may be highly volatile for factors specific to our
operation, including the followings:
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•
•
•
the COVID-19 pandemic and its impact on the travel industry;
actual or anticipated fluctuations in our quarterly operating results and variations in our results of operations that are not in line with
market or research analyst expectations or changes in financial estimates by securities research analysts;
conditions in the internet or travel industries;
announcements of studies and reports relating to the quality of our product and service offerings or those of our competitors;
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•
•
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changes in the economic performance or market valuations of other internet or travel companies or other companies that primarily operate
in China;
changes in major business terms between our ecosystem partners and us;
announcements made by us or our competitors of new features or functionalities or other product and service offerings, investments,
acquisitions, strategic relationships, joint ventures, or capital commitments;
press and other reports, whether or not true, about our business, our directors, senior management, or other key employees, including
negative reports published by short sellers, regardless of their veracity or materiality to us;
litigation and regulatory allegations or proceedings that involve us and our directors;
additions to or departures of our management;
political or market instability or disruptions, and actual or perceived social unrest in the markets where we operate;
fluctuations of exchange rates among the Renminbi, the Hong Kong dollar and the U.S. dollar;
sales or perceived potential sales or other dispositions of existing or additional shares and/ or ADSs or other equity or equity-linked
securities;
any actual or alleged illegal acts of our directors, senior management, or other key employees;
any share repurchase program;
regulatory developments affecting us or our industry, users, licensors and other ecosystem partners; and
market and volume fluctuations in the stock market in general.
In addition, the stock market in general experiences price and volume fluctuations that are often unrelated or disproportionate to the operating
performance of companies like us, such as the large decline in share prices in the United States in early 2020. These market and industry fluctuations
may significantly affect the trading prices of our listed securities. In the past, following periods of instability in the market price of a company’s
securities, shareholders have often instituted securities class action suits against that company. We may be the target of this type of litigation in the
future. Securities litigation against us could result in substantial costs and divert our management’s attention from other business concerns, and, if
adversely determined, could materially and adversely affect our business, financial condition, and results of operations.
We adopt different practices as to certain matters as compared with many other companies listed on the Hong Kong Stock Exchange.
We completed our public offering in Hong Kong in April 2021 and the trading of our ordinary shares on the Hong Kong Stock Exchange
commenced on April 19, 2021 under the stock code “9961.” As a company listed on the Hong Kong Stock Exchange pursuant to Chapter 19C of the
Hong Kong Listing Rules, we are not subject to certain provisions of the Hong Kong Listing Rules pursuant to Rule 19C.11, including, among others,
rules on notifiable transactions, connected transactions, share option schemes, content of financial statements as well as certain other continuing
obligations. In addition, in connection with the Listing, we have applied for, and been granted with, a number of waivers and/or exemptions from strict
compliance with the Hong Kong Listing Rules, the Companies (Winding Up and Miscellaneous Provisions) Ordinance, the Takeovers Codes and the
SFO. As a result, we currently adopt different practices as to those matters as compared with other companies listed on the Hong Kong Stock Exchange
that do not enjoy those exemptions or waivers.
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Furthermore, if 55% or more of the total worldwide trading volume, by dollar value, of our ordinary shares and ADSs over our most recent fiscal
year takes place on the Hong Kong Stock Exchange, the Hong Kong Stock Exchange will regard us as having a dual primary listing in Hong Kong and
we will no longer enjoy certain exemptions or waivers from strict compliance with the requirements under the Hong Kong Listing Rules, the Companies
(Winding Up and Miscellaneous Provisions) Ordinance, the Takeovers Codes and the SFO, which could result in us having to amend our corporate
structure and memorandum and articles of association and we may incur of incremental compliance costs.
Substantial future sales or perceived potential sales of our ordinary shares, ADSs or other equity securities in the public market could cause the
prices of our listed securities to decline.
In the future, we may sell additional ordinary shares, ADSs or other equity securities to raise capital, and our existing shareholders could sell
substantial amounts of ordinary shares and ADSs, including those issued upon the exercise of outstanding options, in the public market. We cannot
predict the size of such future issuance or the effect, if any, that they may have on the market prices for our listed securities. The issuance and sale of a
substantial amounts of ordinary shares, ADSs, or other equity securities, or the perception that such issuances and sales may occur, could adversely
affect the market price of our listed securities and impair our ability to raise capital through the sale of additional equity securities.
Provisions of our convertible notes could discourage an acquisition of us by a third party.
As of December 31, 2021, the aggregate principal amount of our outstanding convertible notes was US$81 million. Certain provisions of our
convertible notes could make it more difficult or more expensive for a third party to acquire us. The indentures for these convertible notes define a
“fundamental change” to include, among other things: (i) any person or group gaining control of our company; (ii) our company merging with or into
another company or disposing of substantially all of its assets; (iii) any recapitalization, reclassification or change of our ordinary shares or the ADSs as
a result of which these securities would be converted into, or exchanged for, stock, other securities, other property or assets; (iv) the adoption of any plan
relating to the dissolution or liquidation of our company; or (v) our ADSs ceasing to be listed on a major U.S. national securities exchange in certain
circumstances, subject to certain exceptions where the applicable consideration comprises U.S.-listed common equity or ADSs. Upon the occurrence of
a fundamental change, holders of these notes will have the right, at their option, to require us to repurchase all of their notes or any portion of the
principal amount of such notes in integral multiples of US$1,000. In the event of a fundamental change, we may also be required to issue additional
ADSs upon conversion of our convertible notes.
As a company incorporated in the Cayman Islands, we are permitted to adopt certain home country practices in relation to corporate governance
matters that differ significantly from the Nasdaq corporate governance listing standards; these practices may afford less protection to shareholders
than they would enjoy if we complied fully with the Nasdaq corporate governance listing standards.
As a Cayman Islands company listed on the Nasdaq, we are subject to the Nasdaq corporate governance listing standards. However, Nasdaq rules
permit a foreign private issuer like us to follow the corporate governance practices of its home country. Certain corporate governance practices in the
Cayman Islands, which is our home country, may differ significantly from the Nasdaq corporate governance listing standards. As we have chosen, or
may from time to time to choose, to follow home country practice exemptions with respect to certain corporate matters such as the requirement of
majority independent directors on our board of directors, our shareholders may be afforded less protection than they otherwise would under the Nasdaq
corporate governance listing standards applicable to U.S. domestic issuers. See “Item 16G. Corporate Governance.”
We are a foreign private issuer within the meaning of the rules under the U.S. Exchange Act, and as such we are exempt from certain provisions
applicable to U.S. domestic public companies.
Because we qualify as a foreign private issuer under the U.S. Exchange Act, we are exempt from certain provisions of the securities rules and
regulations in the United States that are applicable to U.S. domestic issuers, including:
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the rules under the U.S. Exchange Act requiring the filing with the SEC of quarterly reports on Form 10-Q or current reports on Form 8-K;
the sections of the U.S. Exchange Act regulating the solicitation of proxies, consents, or authorizations in respect of a security registered
under the U.S. Exchange Act;
the sections of the U.S. Exchange Act requiring insiders to file public reports of their stock ownership and trading activities and liability
for insiders who profit from trades made in a short period of time; and
the selective disclosure rules by issuers of material nonpublic information under Regulation FD.
We are required to file an annual report on Form 20-F within four months of the end of each fiscal year. In addition, we intend to publish our
results on a quarterly basis as press releases, distributed pursuant to the rules and regulations of Nasdaq. Press releases relating to financial results and
material events will also be furnished to the SEC on Form 6-K. However, the information we are required to file with or furnish to the SEC will be less
extensive and less timely compared to that required to be filed with the SEC by U.S. domestic issuers. As a result, you may not be afforded the same
protections or information that would be made available to you were you investing in a U.S. domestic issuer.
As a Cayman Islands exempted company listed on Nasdaq, we are subject to Nasdaq corporate governance listing standards. However, Nasdaq
rules permit a foreign private issuer like us to follow the corporate governance practices of its home country. Certain corporate governance practices in
the Cayman Islands, which is our home country, may differ significantly from Nasdaq corporate governance listing standards. For example, neither the
Companies Act (As Revised) of the Cayman Islands nor our Memorandum and Articles requires a majority of our directors to be independent and we
could include non-independent directors as members of our compensation committee and nominating committee, and our independent directors would
not necessarily hold regularly scheduled meetings at which only independent directors are present. We follow home country practice with respect to
annual meetings and do not hold an annual meeting of shareholders every year. We undertake we will hold annual general meeting every year after the
Listing for so long as our Company remains listed on the Hong Kong Stock Exchange. If we choose to follow other home country practice in the future,
our shareholders may be afforded less protection than they otherwise would under Nasdaq corporate governance listing standards applicable to U.S.
domestic issuers.
You may face difficulties in protecting your interests, and your ability to protect your rights through the U.S. federal courts or Hong Kong courts
may be limited, because we are incorporated under Cayman Islands law, and because we conduct the majority of our operations in China and
because the majority of our directors and officers reside outside of the United States.
We are incorporated in the Cayman Islands, and we conduct the majority of our operations in China through our wholly-owned subsidiaries and
several consolidated affiliated Chinese entities in China. Most of our directors and officers reside outside of the United States or Hong Kong and most of
the assets of those persons are located outside of the United States or Hong Kong. As a result, it may be difficult for you to effect service of process
within the United States or Hong Kong upon these persons, or to bring an action against us or against these individuals in the Cayman Islands or in
China in the event you believe that your rights have been infringed under securities laws or otherwise. Even if you are successful in bringing an action
of this kind, the laws of the Cayman Islands and China may render you unable to enforce a judgement against our assets or the asses of our directors and
officers. There is no statutory recognition in the Cayman Islands of judgments obtained in the United States or Hong Kong, although the courts of the
Cayman Islands will, at common law, recognize and enforce a foreign money judgment of a foreign court of competent jurisdiction without any
re-examination of the merits of the underlying dispute based on the principle that a judgment of a competent foreign court imposes upon the judgment
debtor an obligation to pay the liquidated sum for which such judgment has been given, provided such judgment (i) is final and conclusive, (ii) is not in
respect of taxes, a fine or a penalty, and (iii) was not obtained in a manner and is not of a kind the enforcement of which is contrary to natural justice or
the public policy of the Cayman Islands. However, the Cayman Islands courts are unlikely to enforce a judgment obtained from the U.S. courts under
civil liability provisions of the U.S. federal securities law or Hong Kong courts if such judgment is determined by the courts of the Cayman Islands to
give rise to obligations to make payments that are penal or punitive in nature. A Cayman Islands court may stay enforcement proceedings if concurrent
proceedings are being brought elsewhere.
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Our corporate affairs are governed by our third amended and restated memorandum and articles of association and by the Companies Act of the
Cayman Islands, or the Companies Act, and the common law of the Cayman Islands. The rights of shareholders to take legal action against us and our
directors, actions by minority shareholders, and the fiduciary responsibilities of our directors are to a large extent governed by the common law the
Cayman Islands. The common law of the Cayman Islands is derived in part from comparatively limited judicial precedent in the Cayman Islands as well
as from English common law, which provides persuasive, but not binding, authority in a court in the Cayman Islands. The rights of our shareholders and
the fiduciary duties of our directors under Cayman Islands law are not as clearly established as they would be under statutes or judicial precedents in
some jurisdictions in the United States or Hong Kong. In particular, the Cayman Islands has a less developed body of securities laws as compared to the
United States or Hong Kong. In addition, shareholders in Cayman Islands companies may not have standing to initiate a shareholder derivative action in
U.S. federal courts or Hong Kong courts.
As a result, our public shareholders may have more difficulties in protecting their interests in the face of actions by our management, directors or
controlling shareholders than would shareholders of a corporation incorporated in a jurisdiction in the United States or Hong Kong.
The voting rights of ADS holders are limited by the terms of the deposit agreement, and ADS holders may not be able to exercise their right to direct
how the ordinary shares represented by the ADSs are voted.
Holders of our ADSs will not have any right to attend general meetings of our shareholders or to cast any votes directly at such meetings, and will
only be able to exercise the voting rights that attach to the underlying ordinary shares represented by the ADSs indirectly by giving voting instructions to
the depositary in accordance with the provisions of the deposit agreement. Under the deposit agreement, ADS holders may vote only by giving voting
instructions to the depositary, as the registered holder of the underlying ordinary shares which are represented by your ADSs. Upon receipt of voting
instructions from ADS holders, the depositary will endeavor to vote the underlying ordinary shares in accordance with such instructions. Holders of the
ADSs will not be able to directly exercise any right to vote with respect to the underlying shares unless ADS holders withdraw the shares and become
the registered holders of such shares prior to the record date for the general meeting. Under our memorandum and articles of association, the minimum
notice period required to be given by our company to our registered shareholders for convening a general meeting is seven days. When a general
meeting is convened, there may not be a sufficient advance notice to enable ADS holders to withdraw the underlying shares represented by the ADSs
and become the registered holder of such shares prior to the record date for the general meeting to allow ADS holder to attend the general meeting and
to vote directly with respect to any specific matter or resolution that is to be considered and voted upon at the general meeting. In addition, under our
memorandum and articles of association, for the purposes of determining those shareholders who are entitled to attend and vote at any general meeting,
our directors may close our register of members and/or fix in advance a record date for such meeting, and such closure of our register of members or the
setting of such a record date may prevent you from withdrawing the underlying shares which are represented by your ADSs and becoming the registered
holder of such shares prior to the record date, so that you would not be able to attend the general meeting or to vote directly. Where any matter is to be
put to a vote at a general meeting, if we ask it to, the depositary will endeavor to notify ADS holders of the upcoming vote and arrange to deliver our
voting materials to ADS holders. We cannot assure that ADS holders will receive the voting materials in time to ensure that they can instruct the
depositary to vote the underlying shares that are represented by their ADSs. In addition, the depositary 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 ADS holders may not be able to exercise their right to
direct the voting of the underlying shares that are represented by their ADSs and there may be nothing ADS holders can do if the shares underlying the
ADSs are not voted as they requested.
Under our deposit agreement, the depositary will give us a discretionary proxy to vote the ordinary shares underlying the ADSs at shareholders’
meetings if ADS holders do not vote, unless we have instructed the depositary that we do not wish a discretionary proxy to be given or any of the other
situations specified under the deposit agreement takes place. The effect of this discretionary proxy is that ADS holders cannot prevent ordinary shares
underlying the ADSs from being voted, absent the situations described above, and it may make it more difficult for shareholders to influence the
management of our company. Holders of our ordinary shares are not subject to this discretionary proxy.
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The right of ADS holders to participate in any future rights offerings may be limited, which may cause dilution to their holders.
We may from time to time distribute rights to our shareholders, including rights to acquire our securities. However, we cannot make rights
available to the ADS holders unless we register the rights and the securities to which the rights relate under the Securities Act of 1933, as amended, or
the Securities Act, or an exemption from the registration requirements is available. Also, under the deposit agreement, the depositary bank will not make
these rights available to the ADS holders unless the distribution to ADS holders of both the rights and any related securities are either registered under
the Securities Act, or exempt from registration under the Securities Act. We are under no obligation to file a registration statement with respect to any
such rights or securities or to endeavor to cause such a registration statement to be declared effective. Moreover, we may not be able to establish an
exemption from registration under the Securities Act. Accordingly, ADS holders may be unable to participate in our rights offerings and may experience
dilution in their holdings.
Holders of ADSs may not receive distributions on ordinary shares or any value for them if it is illegal or impractical to make them available to
holders of ADSs.
The depositary has agreed to pay to ADS holders the cash dividends or other distributions it or the custodian receives on ordinary shares or other
deposited securities after deducting its fees and expenses. ADS holders will receive these distributions in proportion to the number of ordinary shares
their ADSs represent. However, the depositary 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 U.S. securities laws. 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 ADS holders 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 ADS
holders. These restrictions may have a material adverse effect on the value of the ADSs.
Holders of the ADSs may be subject to limitations on transfer of their ADSs.
The ADSs are transferable on the books of the depositary. However, the depositary may close its transfer books at any time or from time to time
when it deems expedient in connection with the performance of its duties. In addition, the depositary may refuse to deliver, transfer or register transfers
of ADSs generally when our books or the books of the depositary are closed, or at any time if we or the depositary thinks it advisable to do so because
of any requirement of law or of any government or governmental body, or under any provision of the deposit agreement, or for any other reason.
Provisions of our rights agreement could delay or prevent an acquisition of our company, even if the acquisition would be beneficial to our
shareholders.
In November 2007, we implemented a defense mechanism against potential hostile takeovers through a shareholder rights plan pursuant to a rights
agreement, which was subsequently amended. The shareholder rights plan will be accounted as dividend in our financial statements upon the exercise of
the shareholder rights. Although the rights plan will not prevent a takeover, it is intended to encourage anyone seeking to acquire our company to
negotiate with our board of directors prior to attempting a takeover by potentially significantly diluting an acquirer’s ownership interest in our
outstanding shares. As the shareholder rights plan generally allows shareholders, except for the acquirer who triggers the exercise of the rights, to
purchase additional shares at significantly discounted market price, the potential dilution effect is dependent on the number of shares purchased by the
acquirer and other factors related to the acquisition, and may not be estimated at this time. In addition, the existence of the rights plan may also
discourage transactions that otherwise could involve payment of a premium over prevailing market prices for the ADSs.
We are exposed to risks associated with the potential spin-off of one or more of our businesses.
We are exposed to risks associated with the potential spin-off of one or more of our businesses. We have applied for, and the Hong Kong Stock
Exchange has granted, a waiver from strict compliance with the requirements in paragraph 3(b) of Practice Note 15 to the Hong Kong Listing Rules for
any potential spin-off on the Hong Kong Stock Exchange within three years of our listing on the Hong Kong Stock Exchange. While we currently have
not identified any target for a spin-off listing on the Hong Kong Stock Exchange, we may consider opportunities in a spin-off listing to bring value to
our shareholders. The waiver granted by the Hong Kong Stock Exchange is conditional upon confirmation with the Hong Kong Stock Exchange prior to
any spin-off that it would not render our company, excluding the business to be spun off, failing to meet the eligibility and suitability requirements under
Rule 19C.05 of the Hong Kong Listing Rules based on the financial information of the business to be spun off at the time of the Listing, and where more
than one business is to be spun off, the assessment will be made on a cumulative basis.
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There can be no assurance that we will not be classified as a passive foreign investment company, or PFIC, which may result in adverse U.S. federal
income tax consequences for U.S. holders of the ADSs or ordinary shares.
A non-U.S. corporation, such as our company, will be classified as a PFIC for U.S. federal income tax purposes for any taxable year, if either
(i) 75% or more of its gross income for such year consists of certain types of “passive” income or (ii) 50% or more of the value of its assets (determined
on the basis of a quarterly average) during such year produce or are held for the production of passive income. Passive income generally includes
dividends, interest, royalties, rents, annuities, net gains from the sale or exchange of property producing such income, and net foreign currency gains.
For this purpose, cash is categorized as a passive asset and the company’s unbooked intangibles associated with active business activity are taken into
account as a non-passive asset.
Based on our income and assets, and the value of our ADSs, we do not believe that we were classified as a PFIC for the taxable year ending
December 31, 2021 and we do not expect to be a PFIC for the foreseeable future. Although we do not anticipate becoming a PFIC, changes in the nature
of our income or assets or the value of our ADSs may cause us to become a PFIC for the current or any subsequent taxable year. Recent fluctuations in
the market price of our ADSs or ordinary shares increased our risk of becoming a PFIC. The market price of the ADSs and ordinary shares may
continue to fluctuate considerably; consequently, we cannot assure you of our PFIC status for any taxable year. Under circumstances where revenues
from activities that produce passive income significantly increase relative to our revenues from activities that produce non-passive income, or where we
determine not to expend significant amounts of cash for working capital or other purposes, our risk of becoming classified as a PFIC may substantially
increase.
If we were treated as a PFIC for any taxable year during which a U.S. Holder (as defined in “Item 10. Additional Information — E. Taxation —
U.S. Federal Income Tax Considerations”) held our ADSs or ordinary shares, certain adverse U.S. federal income tax consequences could apply to such
U.S. Holder. For a more detailed discussion of U.S. federal income tax considerations to U.S. Holders if we are or become classified as a PFIC, see
“Item 10. Additional Information — E. Taxation — U.S. Federal Income Tax Considerations.”
The different characteristics of the capital markets in Hong Kong and the U.S. may negatively affect the trading prices of our ordinary shares and/or
ADSs.
We are subject to Hong Kong and Nasdaq listing and regulatory requirements concurrently. The Hong Kong Stock Exchange and Nasdaq have
different trading hours, trading characteristics (including trading volume and liquidity), trading and listing rules, and investor bases (including different
levels of retail and institutional participation). As a result of these differences, the trading prices of our ordinary shares and our ADSs may not be the
same, even allowing for currency differences. Fluctuations in the price of our ADSs due to circumstances peculiar to the U.S. capital markets could
materially and adversely affect the price of our ordinary shares, or vice versa. Certain events having significant negative impact specifically on the U.S.
capital markets may result in a decline in the trading price of our ordinary shares notwithstanding that such event may not impact the trading prices of
securities listed in Hong Kong generally or to the same extent, or vice versa. Because of the different characteristics of the U.S. and Hong Kong capital
markets, the historical market prices of our ADSs may not be indicative of the trading performance of our ordinary shares.
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Exchange between our ordinary shares and our ADSs may adversely affect the liquidity and/or trading price of each other.
Our ADSs are currently traded on Nasdaq. Subject to compliance with U.S. securities law and the terms of the deposit agreement, holders of our
ordinary shares may deposit ordinary shares with the depositary in exchange for the issuance of our ADSs. Any holder of ADSs may also withdraw the
underlying ordinary shares represented by the ADSs pursuant to the terms of the deposit agreement for trading on the Hong Kong Stock Exchange. In
the event that a substantial number of ordinary shares are deposited with the depositary in exchange for ADSs or vice versa, the liquidity and trading
price of our ordinary shares on the Hong Kong Stock Exchange and our ADSs on the Nasdaq may be adversely affected.
There is uncertainty as to whether Hong Kong stamp duty will apply to the trading of our ADSs or deposits of our ordinary shares in, or withdrawals
of our ordinary shares from, the ADS facility following our initial public offering in Hong Kong and listing of our ordinary shares on the Hong
Kong Stock Exchange.
In connection with the listing of our ordinary shares on the Hong Kong Stock Exchange, we have established a branch register of members in
Hong Kong, or the Hong Kong Share Register. Our ordinary shares that are traded on the Hong Kong Stock Exchange and those that may be withdrawn
from the ADSs facility will be registered on the Hong Kong Share Register, and the trading of these ordinary shares on the Hong Kong Stock Exchange
will be subject to the Hong Kong stamp duty. To facilitate ADS-ordinary share interchanges and trading between the Nasdaq and the Hong Kong Stock
Exchange, we also moved a portion of our issued ordinary shares from our principal register of members maintained in the Cayman Islands to our Hong
Kong Share Register.
Under the Hong Kong Stamp Duty Ordinance, any person who effects any sale or purchase of Hong Kong stock, defined as stock the transfer of
which is required to be registered in Hong Kong, is required to pay Hong Kong stamp duty. The stamp duty is currently set at a total rate of 0.2% of the
greater of the consideration for, or the value of, shares transferred, with 0.1% payable by each of the buyer and the seller.
To the best of our knowledge, Hong Kong stamp duty has not been levied in practice on the trading of ADSs or deposits in or withdrawals of
shares from the ADS facilities for companies that are listed in both the United States and Hong Kong and that have maintained all or a portion of their
ordinary shares, including underlying ordinary shares represented by ADSs, in their Hong Kong share registers. However, it is unclear whether, as a
matter of Hong Kong law, the trading of ADSs or deposits in or withdrawals of shares from the ADS facilities for these dual-listed companies
constitutes a sale or purchase of the underlying Hong Kong-registered ordinary shares that is subject to Hong Kong stamp duty. We advise investors to
consult their own tax advisors on this matter. If Hong Kong stamp duty is determined by the competent authority to apply to these transactions, the
trading price and the value of your investment in our ordinary shares and/or ADSs may be affected.
The time required for the exchange between our ordinary shares and ADSs might be longer than expected and investors might not be able to settle
or effect any sale of their securities during this period, and the exchange of ordinary shares into ADSs involves costs.
There is no direct trading or settlement between the Nasdaq and the Hong Kong Stock Exchange on which our ADSs and our ordinary shares are
respectively traded. In addition, the time differences between Hong Kong and New York, unforeseen market circumstances or other factors may delay
the deposit of ordinary shares in exchange for ADSs or the withdrawal of ordinary shares underlying the ADSs. Investors will be prevented from settling
or effecting the sale of their securities during such periods of delay. In addition, there is no assurance that any exchange for ordinary shares into ADSs
(and vice versa) will be completed in accordance with the timelines that investors may anticipate.
Furthermore, the depositary for the ADSs is entitled to charge holders fees for various services including for the issuance of ADSs upon deposit of
ordinary shares, cancelation of ADSs, distributions of cash dividends or other cash distributions, distributions of ADSs pursuant to share dividends or
other free share distributions, distributions of securities other than ADSs and annual service fees. As a result, shareholders who exchange ordinary
shares into ADSs, and vice versa, may not achieve the level of economic return the shareholders may anticipate.
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ITEM 4.
INFORMATION ON THE COMPANY
A. History and Development of the Company
We commenced our business in June 1999. In March 2000, we established an exempted company with limited liability under the Companies Act
in the Cayman Islands, Ctrip.com International, Ltd. as our new holding company. In October 2019, we changed our company name to “Trip.com Group
Limited.” Since our inception, we have conducted the majority of our operations in China. We have also expanded our operations overseas since 2009.
As of December 31, 2021, we mainly operated our business through the following significant subsidiaries:
•
•
•
•
•
•
•
•
•
•
•
•
•
C-Travel International Limited;
Ctrip.com (Hong Kong) Limited;
Qunar Cayman Islands Limited;
Ctrip Computer Technology (Shanghai) Co., Ltd., or Ctrip Computer Technology;
Ctrip Travel Information Technology (Shanghai) Co., Ltd., or Ctrip Travel Information;
Ctrip Travel Network Technology (Shanghai) Co., Ltd., or Ctrip Travel Network;
Beijing Qunar Software Technology Co., or Qunar Software;
Wancheng (Shanghai) Travel Service Co., Ltd., or Wancheng;
Shanghai Hecheng International Travel Agency Co., Ltd., or Hecheng;
Skyscanner Holdings Limited, or Skyscanner;
Shanghai Ctrip International Travel Agency Co., Ltd. (formerly known as Shanghai Ctrip Charming International Travel Agency
Co., Ltd.), or Shanghai Ctrip;
Chengdu Ctrip International Travel Agency Co., Ltd., or Chengdu Ctrip International; and
Chengdu Ctrip Information Technology Co., Ltd., or Chengdu Information.
We also conduct part of our business in China primarily through the following significant consolidated affiliated Chinese entities and certain of
their subsidiaries:
•
•
•
•
Shanghai Ctrip Commerce Co., Ltd., or Ctrip Commerce, which holds a value-added telecommunications business license;
Chengdu Ctrip Travel Agency Co., Ltd, or Chengdu Ctrip, which holds a domestic travel agency license;
Shanghai Huacheng Southwest International Travel Agency Co., Ltd. (formerly known as Shanghai Huacheng Southwest Travel Agency
Co., Ltd.), or Shanghai Huacheng, which holds a travel agency operation license; and
Beijing Qu Na Information Technology Co., Ltd., or Qunar Beijing, which holds the licenses, approvals and key assets such as mobile
application and website that are essential to the business operations of Qunar.
In October 2015, we completed a share exchange transaction with Baidu, whereby we obtained approximately 45% of the aggregate voting
interest of Qunar in exchange for our newly issued ordinary shares. In December 2015, we issued ordinary shares represented by ADSs to certain special
purpose vehicles holding shares solely for the benefit of certain Qunar employees and, as consideration, we received class B ordinary shares of Qunar
and directly injected these shares to a third-party investment entity dedicated to investing in business in China. From accounting perspective, we started
to consolidate Qunar’s financial statements from December 31, 2015. In October 2016, we participated as a member in the buying consortium in
Qunar’s going-private transaction and rolled our then existing equity stake into the entity that wholly owns Qunar upon the completion of the transaction
in February 2017.
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In December 2016, we consummated an acquisition transaction whereby shares held by nearly all the shareholders of Skyscanner, a leading global
travel search site headquartered in Edinburgh, the United Kingdom, were acquired by us. The total purchase consideration for the acquisition of
Skyscanner was approximately £1.4 billion (which consisted of around £1.2 billion in cash and the remainder in our Shares).
From time to time, we have selectively acquired or invested in businesses that complement our existing business, and will continue to do so in the
future to expand and develop our business. See “Item 4. Information on the Company — B. Business Overview — Strategic Investments and
Acquisitions” for material strategic investments and acquisitions over the past two years. Other than the material acquisitions or investments disclosed
under “Item 4. Information on the Company — B. Business Overview — Strategic Investments and Acquisitions” or elsewhere in this annual report on
Form 20-F, no acquisitions or investments was material to our businesses or financial results at the time we made the acquisition or investment.
In July 2019, we entered into a facility agreement as a borrower with certain financial institutions for up to US$2.0 billion equivalent transferable
term loan facility with a greenshoe option of up to US$500 million. The facilities have a 3-year tenor. The proceeds borrowed under such facilities may
be used for our general working capital requirements, including repayment of any existing financial indebtedness.
In September 2019, we completed put right offer relating to the US$975 million in aggregate principal amount of 1.25% convertible senior notes
due 2022 (taking into account of the fully exercised over-allotment option), or the 2022 Notes. US$924 million aggregate principal amount of the 2022
Notes were validly surrendered and not withdrawn prior to the expiration of the put right offer. The aggregate purchase price of these 2022 Notes was
US$924 million.
In October 2019, we completed a secondary offering of an aggregate of 36,000,000 ADSs, which included the exercise in full by the underwriters
of their option to purchase up to 4,695,648 additional ADSs to cover over-allotment, by our shareholder Baidu Holdings Limited at US$28.00 per ADS.
We did not issue or sell any ADSs in the offering or receive any proceeds from the sale of the ADSs by the selling shareholder.
In April 2020, we entered into a facility agreement as a borrower with certain financial institutions for up to US$1.0 billion transferrable term and
revolving loan facility with an incremental facility of up to US$500 million. The facilities have a 3-year tranche and a 5-year tranche. The proceeds
borrowed under the facilities may be used for our general working capital requirements, including repayment of any existing financial indebtedness.
In July 2020, we exercised our put right option relating to the US$400 million in aggregate principal amount of 1.99% convertible senior notes
due 2025, or the 2025 Notes, at an aggregate purchase price of US$395 million.
In July 2020, our US$700 million in aggregate principal amount of 1.00% convertible senior notes due 2020, or the 2020 Notes, were redeemed in
cash. The aggregate purchase price of the 2020 Notes was US$700 million.
In July 2020, we issued US$500 million in aggregate principal amount of 1.50% exchangeable senior notes due 2027, or the 2020 Exchangeable
Notes. The 2020 Exchangeable Notes are exchangeable, at the option of the holders and subject to certain conditions, into cash, ADSs of Huazhu Group
Limited (Nasdaq: HTHT), or a combination thereof, at our election subject to certain conditions. The initial exchange rate of the 2020 Exchangeable
Notes is 24.78 Huazhu ADSs per US$1,000 principal amount of the notes. The 2020 Exchangeable Notes bear interest at a rate of 1.50% per year,
payable semiannually beginning on January 1, 2021.
On March 18, 2021, we effected a change to our authorized share capital by one (1)-to-eight (8) subdivision of shares. Concurrently, we effected a
proportionate change in ADS to ordinary share ratio from eight (8) ADSs representing one (1) ordinary share to one (1) ADS representing one
(1) ordinary share. Such changes have been reflected retrospectively throughout this document.
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In April 2021, our ordinary shares commenced trading on the Main Board of the Hong Kong Stock Exchange under the stock code “9961.” We
raised approximately HK$9.6 billion, after deducting underwriting fees and other offering expenses payable by us, from our global offering, consisting
of an international offering of 34,166,400 ordinary shares and a Hong Kong public offering of 2,214,500 ordinary shares, collectively the Global
Offering, including the fully exercised over-allotment option of 4,745,300 ordinary shares.
In August and September 2021, we repurchased the entire aggregate principal amount of US$500 million of the 2.00% convertible notes due
2025, or the 2025 Hillhouse Notes, issued to HHLR Fund, L.P. and YHG Investment, L.P.
In October 2021, we entered into a facility agreement as a borrower with certain financial institutions for an update to US$1.5 billion transferrable
term loan facility. The facility has a 3-year tenor. The proceeds borrowed under this facility may be used for the refinancing and other general corporate
purposes.
In December 2021, we repurchased the entire principal amount of US$500 million of the 2.00% convertible notes due 2025, or the 2025 Booking
Notes, to a subsidiary of Booking Holdings Inc. (formerly known as the Priceline Group Inc.).
Our principal executive offices are located at 968 Jin Zhong Road, Shanghai 200335, People’s Republic of China, and our telephone number is
+86 (21) 3406-4880. Our principal website address is www.ctrip.com. The information on our websites should not be deemed to be part of this annual
report. SEC also maintains a website at www.sec.gov that contains reports, proxy and information statements, and other information regarding registrants
that make electronic filings with SEC using its EDGAR system.
B. Business Overview
We are a leading one-stop travel platform globally, integrating a comprehensive suite of travel products and services and differentiated travel
content. We are the go-to destination for travelers in China, and increasingly for travelers around the world, to explore travel and get inspired, to make
informed and cost-effective travel bookings, and to enjoy hassle-free, on-the-go support and share travel experience. Users come to our platform for any
type of trip, from in-destination activities, weekend getaways, and short-haul trips, to cross-border vacations and business trips. Our product and service
portfolio covers offerings that appeal to both our domestic users and our growing global user base. Founded in 1999, we now operate the most well-
known travel brands in China, and have solidified our leadership over the past two decades.
Our Platform
Our one-stop travel platform connects our users and our ecosystem partners. Leveraging our AI capabilities and travel insights accumulated over
the past over 21 years, we have evolved from an emerging online travel transaction platform to a one-stop travel platform integrating a comprehensive
suite of travel products and services and differentiated travel content. Our platform aggregates our product and service offerings, reviews and other
content shared by our users based on their real travel experiences, and original content from our ecosystem partners to enable leisure and business
travelers to have easy access to enjoyable travel experiences and make informed and cost-effective bookings.
As a result of our leading position in travel markets and our vast user base, our platform has attracted ecosystem partners across multiple sectors,
including accommodation reservation, transportation ticketing, packaged tours, and in-destination activities. We provide our ecosystem partners with a
variety of technology-enabled solutions and help them establish an online presence, access our massive and global user base, and engage with users in
real time. In addition, since 2018, we have been rolling out content sharing features on our platform, which allow users to discover, explore, and share
travel-related content featuring destination reviews and travel experiences and tips, thereby further enriching the ecosystem surrounding our platform.
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Omni-Channel Touchpoints for Users
We are the go-to travel platform for travelers in China and has been increasing our influence in target markets around the world. We are committed
to providing each user with a personalized, convenient, enjoyable, and inspirational travel experience.
Online Channels Our online channels consist of our mobile applications, other mobile access channels, and websites. Our online reservation and
fulfillment infrastructure enables our users to explore, search, reserve, and purchase travel products and other value-added services through our online
channels in China, and have continued to expand globally. For the year ended December 31, 2021, over 90% of our total transaction orders were
executed through our mobile channels. We maintain our main sites of Ctrip and Qunar through our subsidiaries and consolidated affiliated Chinese
entities in China, and over time, we have established localized sites for users outside China. As of December 31, 2021, our products and services
through Trip.com were available in 19 languages and 25 local currencies and local sites, and our products and services through Skyscanner were
available in 35 languages and over 50 countries and regions globally.
We offer personalized home pages based on user profiles or past transactions and display travel products and services based on geolocation and
other travel insights. While placing an order, users are prompted with options to customize their trips with packaged deals or additional value-added
services for their convenience, such as travel insurance, car rental, or hotel deals. All products and services are shown with full price transparency. Our
itinerary management tools enable users to review and manage their orders and itineraries. We encourage users to submit ratings, reviews, and
recommendations to our platforms during their trips and after they return from their trips. Leveraging our content sharing feature, users are inspired by
new travel ideas, make informed travel decisions, and share their travel experiences in an engaging community.
Offline Channels In addition to our seven customer service centers located in China and abroad, we are expanding our offline presence to open up
offline stores with our business partners to serve our users who prefer an in-person experience. In our offline stores, we provide users with one-stop
services, such as travel consultation services and other local support and assistance. In addition, our offline stores are expanding to lower-tier cities in
China to cover user base with different purchase and consumption habits, experiences, and needs. As of December 31, 2021, we had approximately
5,000 offline stores across approximately 300 cities in China.
User-Centric Approach Our users are at the center of our business’s philosophy and operations. Since our inception, we have constantly focused
on building trust with our users and creating a more personalized, convenient, enjoyable, and inspirational travel experience. We provide a broad
spectrum of travel products and services that accompany our users throughout their entire journey, from idea inspiration, trip research and planning, to
informed decision-making, travel booking, in-destination activities, on-the-journey support, and post-travel sharing of travel experiences. We
consistently refine our product interfaces to enable an increasingly frictionless booking experience for our users with full transparency in pricing, terms,
and value-added services. We extend good care for our users by providing 24/7 user support all along their trips.
Open Platform for Ecosystem Partners
We adopted an open platform business model to attract and facilitate customized travel offerings by ecosystem partners covering various sectors in
the travel vertical. Our open platform strategy allows ecosystem partners to join our open platform and directly post their own product and service
offerings on our platform alongside products and services that are negotiated with business partners and offered by us.
Our ecosystem partner base includes hotels and other accommodation providers, airlines and other air ticket partners, train ticket partners, car
rental companies, bus operators, ferry carriers, other travel agencies from whom we source travel products and services, and value-added service
partners. We also opened up our platform to international partners, search engines, e-commerce platforms, and other channels to expand their business
opportunities and increase the offerings available to our users. As of December 31, 2021, our open platform provided over 1.2 million global
accommodation listings, offered flights from over 470 airlines, and had a network of over 50,000 other ecosystem partners.
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We carry out ecosystem partner selection process to ensure the quality of product and service offerings to our users. When determining whether to
accept a prospective ecosystem partner to our open platform, we take into account various factors, including reputation, industry expertise and
know-how, price competitiveness, and track record of delivering high-quality products and services. We also have streamlined the contracting process
for ecosystem partners by using an e-contract system on our open platform. We set high service standards and manage product and service quality of our
ecosystem partners through screening and ratings. We monitor our ecosystem partners’ performance based on user feedback. Ecosystem partners with
good performance will be rewarded, while those with negative reviews will be flagged for improvement.
Our Products and Services
We offer accommodation reservation, transportation ticketing, packaged tours, and corporate travel management services, as well as other travel-
related services to meet the various booking and traveling needs of both leisure and business travelers through our travel platform. We began offering
accommodation reservation and transportation ticketing services in October 1999. Over the past two decades, we have been driving the transformation
of travel experience and the adoption of online- and mobile- based travel booking solutions for leisure and business travelers in China and globally. We
capture evolving user preferences and provide travel content as well as travel products and services to make travel effortlessly enjoyable. In addition, we
offer various other products and services, including packaged-tour and in-destination activity products and services, corporate travel management
services, and other travel-related services, such as car services, travel-related financing and insurance, and visa services to meet the various booking and
traveling needs of both leisure and business travelers. Our users also have access to both user-generated and professionally-generated content through
personalized content feeds and our search tools.
Accommodation Reservation
Users can search, compare, and book accommodations on our platforms based on their destination and detailed stay preferences, and may further
filter and sort search results by price range, star category, location, brand, and amenities. We also augment our accommodation reservation offerings
with traveler ratings, reviews, recommendations, and tour guides.
We act as an agent in substantially all of our hotel-related transactions. We generate substantially all of our accommodation reservation revenue
through commissions from our hotel reservation partners through our platform. We recognize revenues when the reservation becomes non-cancellable,
which is the point considered when we complete our performance obligation in accommodation reservation services. Contracts with certain hotel
reservation partners contain incentive commissions that are typically subject to specific performance targets. We generally receive incentive
commissions from hotels through monthly arrangements based on performance targets of accommodation reservations where our users have completed
their stay.
We contract with hotel partners for rooms under two agency models, the “guaranteed allotment” model and the “on-request” model. Under the
“guaranteed allotment” model, a hotel guarantees us a specified number of available rooms every day, allowing us to provide instant confirmations on
such rooms to our users before notifying the hotel.
Transportation Ticketing
Users can search and book transportation tickets via our online platform and customer service centers. Our search functions allow users to narrow
search results by specifying preferences, such as time and mode of transportation, and we leverage our data analytics capability to help them book
tickets that best suit their travel needs. As of December 31, 2021, our transportation ticketing network covered over 200 countries and regions.
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Air Tickets
We sell air tickets as an agent for substantially all domestic PRC airlines and major international airlines operating flights. As of December 31,
2021, we offered flights from over 470 global airlines, covering over 2,600 airports in over 200 countries and regions. Our air ticket booking engines
source real-time availability and pricing information from “direct connects” to airlines’ booking systems and the global distribution system (GDS), a
computerized network system that has real-time link to our ecosystem partners’ inventory.
In addition to selling air tickets, we also offer various options and services to help users travel with ease. Powered by our route planning
algorithms and travel supply, users can customize their trips by combining two or more of our core travel products, such as air tickets and hotels, which
are typically offered as a package at discounted rates. We also provide travel insurance products, such as flight delay insurance, air accident insurance,
and baggage loss coverage, and various ancillary value-added services built around users’ air travel needs, such as air-ticket delivery, online check-in
and seat selection, express security screening, real-time flight status tracker, and airport VIP lounge services.
Other Tickets
Other tickets covered by our transportation ticketing service include train, long-distance bus, and ferry tickets. In connection with such ticketing
services, we also offer various other ancillary travel products and services that are designed to streamline the ticketing process.
Packaged Tours and In-Destination Activities
We offer independent leisure travelers bundled packaged-tour products as well as in-destination activity products and services, catering to our
users’ evolving demands.
Packaged Tours
We offer our users a wide range of bundled packaged-tour products on our platform provided by our ecosystem partners, including group tours,
semi-group tours, customized tours, and packaged tours with different transportation arrangements, such as by air, cruise, bus, and car rental, covering
domestic and international destinations. For example, we focus on securing diverse boutique travel products domestically, such as combinations of
themed hotels and dining. We provide integrated transportation and accommodation services and offer a variety of value-added services including
transportation at destinations, attraction tickets, local activities, insurance, visa services, and tour guides. We also provide high-quality user support,
supplier management, and customer relationship management services to packaged-tour providers.
In-destination Activities
Destinations are often defined by the activities available upon arrival. Over the years, users are seeking more novel experiences and are eager to
do more memorable activities in the destinations. Driven by the rise of experiential travel, we offer a variety of in-destination products and services,
such as in-destination dining and shopping, day tours of popular tourist destinations, attraction and show tickets, customized tour guide services, and
virtual tour assistant. Users not only have plenty of options for what and when to book in-destination activities, but also can book at the last minute in a
quick and straightforward manner on our platform. As of December 31, 2021, we offered over 350,000 in-destination activities around the world.
Corporate Travel Management
In addition to serving individual users, we also serve corporate clients with similar products and services to help them plan business travel in a
cost-efficient way. We provide our corporate clients with business visits, incentive trips, meetings and conferences, travel data collection and analysis,
industry benchmarking, cost savings analysis, and travel management solutions. We have independently developed our Corporate Travel Management
System, which is an online platform integrating information management, online booking, online authorization, online inquiry, and travel reporting
systems.
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Other Travel-Related Services
Our other travel-related services primarily include online advertising and financial services. We provide marketing planning and travel media
services to our ecosystem partners, as well as a wide range of advertising services to pan-industry brand partners. Based on our travel product and
service offerings, user base, and industry value chain, we also have obtained necessary licenses to facilitate users and ecosystem partners on our
platform with our financial services, which mainly cover consumer financing, supply-chain financing, and a range of digital solutions for our users and
ecosystem partners.
Content Offerings
We consolidate and aggregate travel-related content for our users to help them get inspired by new travel ideas, make informed travel decisions,
and share their travel experiences. Our users have free access, through personalized content feeds and our search tools, to both user-generated content
shared by travelers based on their real travel experiences and professionally-generated content including our official selections and content produced by
professional travel bloggers, KOLs, and our ecosystem partners.
Reviews. We provide our users with detailed, authentic, and transparent information on our product and service offerings based on our users’
in-depth reviews and detailed ratings. We have been refining our user review framework to improve authenticity, objectivity, and relevance of our
review and rating system, creating a feedback loop for us to refine our products and services, enhance users’ search experience, and enable them to rely
on us for making well-informed travel decisions.
Community. Our community integrates the online travel content sharing features on our platform with our product and service offerings, so that
our users can discover, explore, and share travel-related content such as destination travel experiences and tips. In addition, leveraging our AI
technology and travel insights, we are able to push tailored recommendations to our users while they are browsing through our community.
Selections and Recommendations. We provide our users with various lists of selected and recommended product and service offerings, such as
popular destinations, themed activities, restaurant guides, and special deals. Our selections and recommendations help inspire our users’ next great
getaway, from long weekend escapes to must-see destinations and to bucket-list adventures from around the globe.
Live Streaming. In March 2020, we launched our first mobile BOSS live streaming event featuring a live tour by our management team and
Trip.com live streaming series. Since then we have upgraded our live streaming channel into a platform with integrated resources and content. In
addition to our official channel, our live streaming platform also hosts professionally-generated content contributed by professional travel bloggers,
KOLs, and our ecosystem partners. We have collaborated with leading international hotel brands to offer our users discounts on luxury hotels through
live streaming. Our live streaming has also showcased destinations around the world with featured international travel products, attracting millions of
views by our users.
User Support
We provide user support online and offline through multiple channels such as calls, instant messaging, email, and social networks, in multiple
media formats such as voice, text, image, and video, 24 hours a day, seven days a week. As of December 31, 2021, we had seven customer service
centers located in China and abroad, such as Shanghai, Nantong, Guangzhou, Manila, Tokyo, Seoul, and Edinburgh. These customer service centers are
staffed with in-house travel specialists who have participated in a formal training program before commencing work. We also provide comprehensive
aftersales services including aftersales support, pre-travel warnings, major incident compensation, a special situation refund policy, and emergency
support, among others.
In 2016, we launched the first travel safety center in China. The service center established seven mechanisms to provide travelers with more
protection, including the application of the global supplier travel safety standards, travel warning centers, a global travel destination emergency
assistance mechanism, major disaster protection funds, a special reason cancelation policy, global travel insurance and rescue services, and a tour guide
responsibility mechanism. We provide our users with travel insurance service including insurance consultation and claim settlements, from delayed and
cancelled trips to accidental injury treatment, through one of our consolidated entities with insurance license.
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In 2017, we launched the first global travel SOS service in China. Users who book a trip from our platforms have access to 24/7 emergency
support. The SOS service currently covers three major categories: (i) support in emergencies such as natural disasters and terrorist attacks, (ii) support in
case of injury or illness during the journey, including assistance in medical treatment, delivery of medicines, and translation services, and (iii) assistance
provided when valuables are lost during the journey, including assistance in the recovery of lost property and eventually bringing the property back to
the home country.
Technology
Since our inception, we have been able to support the growth in our online and offline traffic and transactions with our technology and
infrastructure. Our IT infrastructure is able to support nearly every aspect of our business, including our travel platform, mobile and website operations,
and customer service centers.
AI Technologies
Our technology platform is empowered by AI and other proprietary technologies. Our platform processes a massive amount of travel-related data.
We leverage various AI technologies such as natural language processing, speech recognition, computer vision, and conversational AI to inform various
applications such as traffic forecasting, civil aviation big data analysis, flight delay prediction, a tourism knowledge graph, and especially, improved
customer services to our global user base, among others. The application of the AI technologies benefits not only our users, but also our ecosystem
partners.
For our users, our technologies enable personalized recommendations, a streamlined user experience, enhanced user engagement, and the sharing
and viewing of user-generated content. Our user support cloud platform is developed on both public and private clouds to optimize operational
efficiency. The core technologies underlying our user support include (i) CtripIM, a self-developed instant messenger system which offers a streamlined
problem-solving process, (ii) Softswitch, which enables us to securely encrypt users’ displayed phone numbers to prevent leakage of sensitive user
information, and (iii) SoftPBX, a telephone system software that distributes calls through the intranet to different operators after the user’s phone call is
connected. These technologies enable us to handle user requests more efficiently, support our users in times of traffic spikes, enhance system stability,
and ensure consistent availability to our users.
For the ecosystem partners, our technologies enable marketing and optimize operating efficiency based on traveler preference and accurate
demand predictions. We offer a variety of solutions to our ecosystem partners, such as (i) E-booking System for accommodation partners, which
provides standardized information input to accommodation partners to digitalize their offerings, and (ii) pricing error monitoring system for airfare,
which detects flight tickets with abnormally low fares (bug fares) using anomaly detection models based on massive historical and real-time airfare data.
Proprietary Search and Transaction Engines
We apply proprietary technologies in flight ticket search and accommodation search and transactions, which help us attract and retain users and
improve their experiences on our platform. These technologies are able to process data that covers the global product offerings available on our
platform, use optimized algorithms to reduce computational cost, shorten search latency and processing time, and generate relevant results swiftly to
ensure good user experience.
Our technologies for flight ticket searches include a search engine and personalized recommendation system. These technologies can support
hundreds of millions of queries per day. The technology currently has covered departure or arrival cities worldwide and accommodates various
languages. We have also built intelligent tools and machine learning technologies for ecosystem partners to better price their products appropriately and
strengthen their competitive positions. We provide deep integration of travel information technology systems with online transaction platforms, which
further decreases airlines’ operating cost and maximizes revenue.
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Our technologies for accommodation searches include a hotel matching system and model algorithms. These technologies can support billions of
queries per day, with an industry leading average response time. They can also rapidly process tens of billions of data points needed to calculate
numerous room types, room status data, and room price data incrementally updated every day. The technology connects hotel sales sites in countries and
regions around the world and supports multiple currencies and all major international credit card payments. As a result of the technology applied in
accommodation search, we are able to attract and retain users and improve their overall experiences.
Marketing and Brand Awareness
Through a combination of online and offline marketing, brand promotion, cross-marketing, and rewards program, we have created strong brands
that are commonly associated in China with travel products and services and user support. In addition, we leverage word-of-mouth referrals among users
to promote our brands. We will continue to use our focused marketing strategy to further enhance awareness of our brands and acquire new target users.
Brand Advertising
We currently operate through four leading travel brands, including (i) Ctrip, a leading provider of online travel and related services in China;
(ii) Qunar, a leading online travel agency in China; (iii) Trip.com, an online travel agency for global travelers; and (iv) Skyscanner, a leading global
travel search company.
We conduct our brand campaigns through advertising on video streaming platforms, targeted LCD displays in public spaces, and billboards at
airports, railway stations, and bus stations. We also work with celebrities in our marketing campaigns and embed our brand and travel products into live
TV shows, movies, and other entertainment marketing channels. We also opened approximately 5,000 offline stores as of December 31, 2021 to
supplement our online marketing to acquire more consumers in the lower-tier cities in China and those who prefer an in-person experience. With these
diverse channels, we believe that we have effective strategies to enhance brand awareness and user engagement and attract a new generation of users,
and we have a unique advantage in our ability to develop truly multi-channel marketing solutions for global destinations.
Performance Advertising
We have contracted with the majority of the leading online marketing channels, such as search engines, browsers, and navigation websites, to
prominently feature our websites and have cooperated with online companies to promote our services, as well as conducting public relations activities.
We have purchased related keywords or directory links to direct potential users to our websites.
We have also worked with major internet portals and leading mobile applications in their respective sectors to advertise locally and also have
worked with top smart phone manufacturers to increase the number of our app downloads and promote more activations and transactions. In addition,
we will be actively testing all kinds of innovative and rapidly growing mobile channels that may appeal to consumers.
Cross-Marketing
We have entered into cross-marketing arrangements with major PRC domestic airlines, hotel chains, financial institutions, telecommunications
service providers, e-commerce and internet companies, and other corporations. For example, our airline partners and financial institution partners
recommend our products and services to members of their mileage programs or bank card holders. Users can accumulate miles by booking air tickets
through us or earn points by paying through co-branded credit cards.
Rewards Program
To secure our users’ loyalty and further promote our brand, we provide our users with a rewards program. This program allows our users to
accumulate membership points calculated according to the services purchased by the users. Our membership points have a fixed validity term and our
users may redeem these points for travel awards and other gifts.
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Seasonality
The travel service industry is characterized by seasonal fluctuations, and accordingly our revenues may vary from quarter to quarter. Since most of
our users are from China, to date, the third quarter of each year generally contributes the highest portion of our annual net revenues primarily due to the
strong demand for both leisure and business travel activities during the summer. These seasonality trends are difficult to discern in our historical results
because our revenues have grown substantially since inception. However, our future results may be affected by seasonal fluctuations in the use of our
services by our users. See “Item 5. Operating and Financial Review and Prospects —A. Operating Results.”
User Privacy and Data Security
Data security is crucial to our business operations. We have internal rules and policies to govern how we may use and share personal information,
as well as protocols, technologies and systems in place to ensure that such information will not be accessed or disclosed improperly. We establish
privacy policies to protect privacy of individuals and comply with laws and regulations enacted to protect personal information while conducting
business activities.
From an internal policy perspective, we limit access to our servers that store our user and internal data on a “need-to-know” basis. Our internal
control protocols cover the full lifecycle of data processing including data collection, data quality management, data encryption and transportation, data
storage security, data backup and recovery, data processing and analytics, proper use of data, and data destruction and disposition. We adopt a data
encryption system intended to ensure the secured storage and transmission of data, and prevent any unauthorized member of the public or third parties
from accessing or using our data in any unauthorized manner. We also deploy a variety of detection mechanisms, including machine learning technology
and other automated tools that help us independently identify certain misleading information on our platform to remove, suppress, or forward the
content for human review. As we continue to develop these tools, content is reviewed by our trained specialists to comply with applicable laws and
regulations. Furthermore, we implement comprehensive data masking of user data for the purpose of fending off potential hacking or security attacks.
We engage legal counsel in and outside China to advise on our data protection policies and ongoing compliance with applicable laws and
regulations. As part of our internal procedure, we engage overseas legal counsel to advise on the applicable licensing and compliance requirements
before entering into new markets.
For information about laws and regulations relating to user privacy and data security, see “Item 4. Information of the Company—B. Business
Overview—PRC Government Regulations—Regulations Related to Internet Information Security and Privacy Protection.”
Intellectual Property
Our intellectual property rights primarily include trademarks and domain names associated with the name “Ctrip,” “Qunar,” “Trip.com,” and
“Skyscanner” and copyright and other rights associated with our websites, technology platform, booking software, and other aspects of our business. We
regard our intellectual property as a critical factor contributing to our success, although we are not dependent on any patents, intellectual property related
contracts or licenses other than some commercial software licenses available to the general public. We rely on trademark and copyright law, trade secret
protection, and confidentiality agreements with our employees to protect our intellectual property rights. We require our employees to enter into
agreements to keep confidential all information relating to our users, methods, business, and trade secrets during and after their employment with us.
Our employees are required to acknowledge and recognize that all inventions, trade secrets, works of authorship, developments, and other processes
made by them during their employment are our property.
As of December 31, 2021, we had over 1,200 patents registered with the PRC Intellectual Property Administration, including over 400 invention
patents, and over 600 pending patent applications in China.
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As of the December 31, 2021, we owned over 1,300 registered trademarks and approximately 100 pending trademark applications, in various
categories with the Trademark Office of the PRC Intellectual Property Administration. In addition, we had over 75 registered trademarks in various
overseas countries and international jurisdictions. We have registered our major trademarks “Ctrip” and “携程” (simplified Chinese characters for Ctrip)
with the Trademark Office of the PRC Intellectual Property Administration, with the Registrar of Trademarks in Hong Kong, and also with the United
States Patent and Trademark Office. In 2009, we registered the trademark “携程Ctrip” (a combination of the Chinese and English characters for Ctrip)
with the Taiwan Intellectual Property Office and with Direcção dos Serviços de Economia of Macau. We have also registered the trademark “Ctrip” and
“携程” in Korea, European Union, Singapore, Switzerland, Australia, New Zealand, Japan, Turkey, Vietnam, the United Arab Emirates, Malaysia, India,
South Africa, Brazil, and Cambodia. We have also registered the trademark “Trip.com” in European Union, Japan, the United States and Australia.
As of December 31, 2021, we held over 700 computer software copyrights and over 200 other copyrights registered with the PRC Copyright
Administration.
As of December 31, 2021, we had over 300 registered domain names in China, including ctrip.com and ctrip.com.cn, and approximately 29
registered domain names outside China, including trip.com, all of which have been registered with www.markmonitor.com, and we have full legal rights
over these domain names. As of the date of this annual report, all of our registered domain names were in effect.
Competition
China’s travel industry is highly competitive. We compete primarily with other travel agencies, including domestic and foreign consolidators of
hotel accommodation and airline tickets as well as traditional travel agencies. As China’s travel market continues to evolve, we may be faced with
increased competition from new domestic travel agencies, including the ones operated by other major internet companies, or international players that
seek to expand into China. We may also face increasing competition from hotels and airlines as they increase their direct selling efforts or engage in
alliances with other travel service providers, as well as content platforms and social networks entering into the travel industry.
We compete based on a number of factors, including, among other things, brand recognition, depth and breadth of travel offerings, price
competitiveness, and user support and satisfaction. We believe that we are well-positioned to effectively compete on the basis of the factors listed above.
However, some of our current or future competitors may have longer operating histories, greater brand recognition, larger user and supplier bases, or
stronger financial, technical or marketing resources than we do. See “Item 3. Key Information—D. Risk Factors—Risks Relating to Our Business and
Industry—If we do not compete successfully against new and existing competitors, we may lose our market share, and our business may be materially
and adversely affected.”
Customers and Suppliers
We have a broad base of customers, which primarily consist of our ecosystem partners, including airlines and other air ticket partners, hotel and
alternative accommodation partners, and various value-added travel products and services partners, such as insurance companies. We have cultivated
and maintained good relationships with our ecosystem partners since our inception. We have a team of employees dedicated to enhancing our
relationship with existing ecosystem partners and developing relationships with prospective ecosystem partners. Our customers also include but are not
limited to (i) users who purchase travel products that we source from ecosystem partners, (ii) users who purchase ancillary value-added travel products
and services, and (iii) advertisers who post advertisements of their products and services on our online platforms.
Our suppliers primarily consist of online and mobile payment services, data storage, server hosting, and bandwidth providers, user acquisition
channels, and advertising and marketing service providers.
Strategic Investments and Acquisitions
To further strengthen our competitive position in China and to become a major travel service provider in the Greater China market, we constantly
evaluate opportunities for strategic investments in, and acquisitions of, complementary businesses, assets and technologies and have made such
investments and acquisitions from time to time. We have made the following material strategic investments and acquisitions over the past three years.
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In August 2019, we completed a share exchange transaction with Naspers, a shareholder of MakeMyTrip, pursuant to which Naspers exchanged
certain ordinary shares and Class B convertible ordinary shares of MakeMyTrip for 4,108,831 newly issued ordinary shares of our company with fair
value of US$1.1 billion as of the closing date. Concurrently with the share exchange, we invested in a third-party investment entity by contributing
certain ordinary shares and Class B convertible ordinary shares of MakeMyTrip held by us and recorded the investment using equity method.
Immediately after the closing of the transaction, Naspers owned approximately 5.6% of our then total issued and outstanding ordinary shares, and we
owned certain number of ordinary shares and Class B convertible ordinary shares of MakeMyTrip, representing approximately 49% of MakeMyTrip’s
then total voting power. From an accounting perspective, we recorded this investment using equity method and the total consideration for the shares we
held in MakeMyTrip immediately after the closing of the transaction consisted of certain number of our newly issued ordinary shares worth of
US$1.0 billion and our previously held equity investment of US$0.2 billion.
In November 2019, we and TripAdvisor, Inc. (Nasdaq: TRIP), or TripAdvisor, agreed on a strategic partnership to expand global cooperation
through various contracts. We and TripAdvisor agreed through our respective subsidiaries to form and jointly control a joint venture, where we would
contribute cash and market expertise and TripAdvisor would contribute a long-term exclusive brand and content license and other assets of its China
business. We both share inventories in travel categories at the joint venture level. The joint venture operates globally as TripAdvisor China. Due to the
partnership with TripAdvisor, Ms. Jane Jie Sun currently serves as a director of TripAdvisor.
In November 2019, we obtained control of an online travel agency company in which we previously had held 51% equity interest with substantive
participating rights being held by the non-controlling shareholder. We obtained control of the online travel agency company when the non-controlling
shareholder agreed to remove these substantive participating rights. The deemed consideration was the previously held 51% equity interest, the fair
value of which was RMB259 million. We also recognized a gain of RMB196 million from the re-measurement of the previously held equity interest.
Health, Work Safety, Social, and Environmental Matters
We are dedicated to the sustainable management of our environmental footprint and engaging our users and ecosystem partners to create synergy.
As a responsible corporate citizen, we recognize our role in combating the global challenge of climate change. To strategically manage the
environmental impacts arising from our operations, we are committed to promoting sustainable tourism and introducing carbon mitigation measures and
will continue to explore ways to further improve energy efficiency. Given that the majority of our operations are conducted online, we have a limited
impact on the environment with a small carbon footprint and our carbon reduction measures focus mainly on reducing energy consumption and
improving energy efficiency at our headquarters. Designed as a green building, our headquarters was awarded Leadership in Energy and Environmental
Design Gold precertification with several implemented environmental initiatives including the application of an intelligent building energy management
system. Trip.com and Skyscanner became founding members of a sustainable tourism campaign, “Travalyst,” which is developing sustainability
frameworks to guide sustainability practices across the travel industry. Skyscanner is developing an aviation sustainability framework that creates
greater transparency on carbon emissions for individual flights and highlights the sustainability practices of different airlines.
We do not operate any manufacturing or warehousing facilities. Therefore, we are not subject to significant health, work safety, social, or
environmental risks. To ensure compliance with applicable laws and regulations, from time to time, our human resources department would, if necessary
and after consultation with our legal advisor, adjust our human resources policies to accommodate material changes to relevant labor and safety laws and
regulations. For the year ended December 31, 2021 and up to the date of this annual report, we had not been subject to any material fines or other
penalties due to non-compliance with health, work safety, social, or environmental regulations.
PRC Government Regulations
Current PRC laws and regulations impose substantial restrictions on foreign ownership of the travel agency and value-added telecommunications
businesses in China. As a result, we conduct these businesses in China through contractual arrangements with our consolidated affiliated Chinese
entities as well as certain independent travel agencies. Some of our directors and officers, all of whom are PRC citizens, directly or indirectly own all or
most of the equity interests in our consolidated affiliated Chinese entities as of the date of this annual report.
According to our PRC legal counsel, Commerce & Finance Law Offices, the ownership structures, as described in this annual report, comply with
all existing PRC laws, rules and regulations.
Regulations Related to Foreign Investment in the PRC
Foreign Investment Industrial Policy
Investments activities in China by foreign investors are principally governed by the Catalog for the Encouragement of Foreign Investment
Industries (2020 Edition), or the Catalog, and the Special Administrative Measures (Negative List) for Foreign Investment Access (2021 Version), or the
Negative List, which were both promulgated by the MOFCOM and the NDRC and each became effective on January 27, 2021, and January 1, 2022.
The Catalog and the Negative List set forth the industries in which foreign investments are encouraged, restricted and prohibited. Industries that are not
listed in the Catalog and the Negative List are generally open to foreign investment unless otherwise specifically restricted by other PRC rules and
regulations.
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According to the Negative List, the foreign equity interests ownership of entities that engage in value-added telecommunications business (except
for e-commerce, domestic multi-party communication, storage and forwarding and call center) must not exceed 50%, and foreign investors are allowed
to hold up to 100% of equity interests in an online data processing and transaction processing business (including e-commerce business operation) in
China.
Foreign Investment Law and its Implementation Measures
On March 15, 2019, the National People’s Congress enacted the Foreign Investment Law, or the FIL, which came into effect on January 1, 2020.
The FIL has replaced the previous major laws and regulations governing foreign investment in the PRC, including the Sino-foreign Equity Joint
Ventures Enterprises Law of China, the Sino-foreign Co-operative Enterprises Law of China and the Wholly Foreign-invested Enterprise Law of China.
According to the FIL, “foreign-invested enterprises” refers to enterprises that are wholly or partly invested by foreign investors and registered under the
PRC laws within China, and “foreign investment” refers to any foreign investor’s direct or indirect investment activities in China, including:
(i) establishing foreign-invested enterprises in China either individually or jointly with other investors; (ii) obtaining stock shares, equity shares, shares
in properties or other similar interests of Chinese domestic enterprises; (iii) investing in new projects in China either individually or jointly with other
investors; and (iv) investing through other methods provided by laws, administrative regulations or provisions prescribed by the State Council.
On December 26, 2019, the State Council issued Implementation Regulations for the Foreign Investment Law of China, or the FIL
Implementation Rules, which came into effect on January 1, 2020. According to the FIL Implementation Rules, in the event of any discrepancy between
the FIL, the FIL Implementation Rules and the relevant provisions on foreign investment promulgated prior to January 1, 2020, the FIL and the FIL
Implementation Rules shall prevail. The FIL Implementation Rules also set forth that foreign investors that invest in sectors on the Negative List in
which foreign investment is restricted shall comply with special management measures with respect to, among others, shareholding and senior
management personnel qualification in the Negative List. Pursuant to the FIL and the FIL Implementation Rules, the existing foreign-invested
enterprises established prior to the effective date of the FIL are allowed to keep their corporate organization forms for five years from the effectiveness
of the FIL before such existing foreign-invested enterprises change their organization forms and organization structures in accordance with the PRC
Company Law, the Partnership Enterprise Law of China and other applicable laws.
On December 30, 2019, the MOFCOM and the SAMR jointly promulgated the Measures on Reporting of Foreign Investment Information, which
came into effect on January 1, 2020, and has replaced the Interim Measures for the Administration of Record-filling on the Establishment and Changes
in Foreign-Invested Enterprises. Foreign investors or foreign-invested enterprises shall submit investment information to the commerce administrative
authorities through the Enterprise Registration System and the National Enterprise Credit Information Publicity System.
In December 2020, the NDRC and the MOFCOM further promulgated the Foreign Investment Security Review Measures, which took effect on
January 18, 2021. These measures require direct or indirect investment by foreign investors of PRC companies engaged in military-related or certain
other industries be subject to security review before consummation of any such investment. “Certain other industries” refer to, among others, important
transportation services, important culture products and services, important information technology and internet products and services, and important
finance services that are crucial to national security.
Regulations Related to Value-Added Telecommunications Services
In 2000, the State Council promulgated the Telecommunications Regulations of China, or the Telecommunications Regulations, most recently
amended in February 2016, which provide the regulatory framework for telecommunications service providers in China and require a
telecommunications service provider to obtain an operating license prior to commencing its operations. The Telecommunications Regulations categorize
all telecommunications services as either basic telecommunications services or value-added telecommunications services. Providers of value-added
telecommunications services are required to obtain a license for value-added telecommunications services. Pursuant to the Catalog of
Telecommunications Services, an attachment to the Telecommunications Regulations, which was most recently amended on June 6, 2019, information
services provided via public telecommunication network or the internet and the online data processing and transaction processing services provided via
public telecommunication network or the Internet by utilizing various kinds of data and transaction processing application platforms that are connected
to public telecommunication network or the Internet fall within value-added telecommunications services.
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The Administrative Measures on Internet Information Services, which was promulgated by the State Council on September 25, 2000, and
amended on January 8, 2011, set out guidelines on the provision of internet information services. According to the Administrative Measures on Internet
Information Services, the internet information services is classified into commercial internet information services and non-commercial internet
information services; an operator of commercial internet information services must obtain a value-added telecommunications operating license for the
provision of internet information services from the appropriate telecommunications authorities. The Administrative Measures for Telecommunications
Operating Licenses, which was promulgated by the MIIT on July 3, 2017, and became effective on September 1, 2017, further regulates the
telecommunications operating licenses.
Restrictions Related to Travel Agency
On April 25, 2013, the Standing Committee of the National People’s Congress issued the PRC Tourism Law, which took effect on October 1, 2013
and was amended in 2016 and 2018. The PRC Tourism Law aims to protect tourists’ and tour operators’ legal rights, regulate travel market and promote
the development of travel industry, and sets forth specific requirements for the operation of travel agencies. Travel agencies are prohibited from
(i) leasing, lending or illegally transferring travel agency operation licenses or otherwise disseminating untrue or inaccurate information when soliciting
customers and organizing tours, (ii) conducting any false publicity to mislead customers, (iii) arranging visits to or participation in any project or activity
in violation of PRC laws and regulations or social morality, (iv) organizing tours at unreasonably low price to induce or cheat tourists, or obtaining
unlawful profits such as kickbacks, and (v) changing or ceasing scheduled itineraries without reasons and forcing the tourists to participate in other
activities against the will of tourists. In addition, travel agencies must enter into contracts with customers for travel services; and before a tour starts, a
customer may assign his personal rights and obligations in a packaged-tour contract to any third person, whom the travel agency cannot refuse without
cause, as long as any fee increase will be borne by the customer and the relevant third person. Accordingly, travel agencies may be subject to civil
liabilities for failing to fulfill the obligations discussed above, which include rectification, confiscation of any illegal income, imposition of a fine, an
order to cease business operation, or revocation of its travel agency permit.
The travel industry is subject to the supervision of the PRC Ministry of Culture and Tourism and local tourism administrations. The principal
regulations governing travel agencies in China include the Travel Agency Regulations, issued by the State Council in February 2009, which became
effective on May 1, 2009 and most recently amended on November 29, 2020, and the Implementing Rules of Travel Agency Regulations promulgated
by the PRC National Tourism Administration in April 2009, which became effective as of May 3, 2009 and most recently amended on December 12,
2016. Under these regulations, a travel agency must obtain a license from the National Tourism Administration or the provincial-level tourism
administration it authorizes to conduct outbound travel business, and a license from the provincial-level tourism administration or the municipal tourism
administration it authorizes to conduct domestic and inbound travel agency business.
The Travel Agency Regulations permit foreign investors to establish foreign invested travel agencies. Foreign-owned travel agencies are allowed
to open branches nationwide, but are restricted from engaging in outbound tourism business in China, unless otherwise determined by the State Council,
or provided under a bilateral free trade agreement between the country and China, or the closer economic partnership agreements between China, Hong
Kong and Macau. In December 2009, the State Council promulgated the Opinion on Accelerating Development of Travel Industry, which gradually
allows foreign invested travel agencies to operate business of arranging PRC residents traveling to overseas destinations on a trial basis. On August 29,
2010, the NTA and MOFCOM further promulgated the Interim Measures for Supervising Pilot Operation of Overseas Travel Business by Sino-Foreign
Joint Venture Travel Agencies, according to which the National Tourism Administration may choose and approve certain qualified Sino-foreign joint
venture travel agencies to operate business of arranging PRC residents traveling to overseas destinations, Hong Kong and Macau (excluding Taiwan), on
a trial basis. Based on the Plan to Strengthen the Reform and Open-up Policy in China (Shanghai) Pilot Free Trade Zone promulgated by the State
Council in March 2017, China (Shanghai) Pilot Free Trade Zone has implemented a pilot project that allows the wholly foreign-owned travel agencies
registered in China (Shanghai) Pilot Free Trade Zone that satisfied with required conditions to operate outbound tourism business. In January 2019, the
PRC State Council promulgated the Approval to the Work Plan on Fully Promoting the Comprehensive Pilot Program for Expanding the Opening-Up of
the Service Industry of Beijing Municipality, which allows wholly foreign-owned travel agencies to provide outbound travel services (except for
Taiwan) for PRC citizens on a trial basis.
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On August 20, 2020, the Ministry of Culture and Tourism promulgated a Tentative Administrative Measure on Online Travel Operation, which
intends to standardize the online travel operation business. The online travel operation services means provision of travel services to the travelers via the
information network such as Internet and such services include package tour, transportation, accommodation, dining, sightseeing, entertainment and so
on. The operator of online travel business shall provide real and accurate travel services information without false promotion and advertisement. The
operator of online travel platform shall verify the identification, license, quality standard and credit rating of all travel business operator registered on the
platform. The online travel business operator shall protect the personal data privacy of travelers and shall not set unfair trading conditions based on
consumption record and preference by abusing data analyzing technology. The platform operator shall examine the license and qualification of travel
business operator inside the platform and alert the travelers for safety warning, and shall take the liability if it fails to perform relevant obligations
requested by such administrative measures.
Regulations Related to Air-ticketing
The air-ticketing business is subject to the supervision of the China Air Transportation Association and its branches. In April 2015, the China Air
Transport Association issued the Air Transportation Sales Agent Qualification Accreditation Measures pursuant to which an air-ticketing agency must
obtain a permit from air transportation sales agency branch, an affiliate of the China Air Transport Association in which the agency proposes to conduct
the air-ticketing business. There are two types of air-ticketing permits in China, permits for selling tickets for international flights and flights to Hong
Kong, Macau and Taiwan, and permits for selling tickets for domestic flights in China.
In February 2019, the Air Transportation Sales Agent Qualification Accreditation Measures were abolished and air transportation sales agencies
can operate air-ticketing business without permits as was previously required. Alternatively, the Self-Discipline Measures for Air Transportation Sales
Agency Industry was promulgated by the China Air Transport Association, which encourages self-discipline administration for air transportation sale
agency industry. The China Air Transport Association has further promulgated the Business Standards of Air Passenger Transportation Sales Agencies
and the Business Standards of Air Freight Transportation Sales Agencies, which introduce general business standards applied by airlines for selecting
and authorizing their air-ticketing sales agents. For example, basic requirements for passenger air transportation sales agencies are, including but not
limited to, (i) having proper business license, (ii) having telecommunication and information services business license if conducting online air-ticketing
sales, (iii) having suitable capital contributed for business operation, (iv) having capital guarantee or pledge in favor of airlines, (v) agencies and their
principals not having poor credit records, and (vi) having sufficient, properly trained employees.
In August 2017, the Civil Aviation Administration of China issued the Notice on Regulating Online Air-ticketing, pursuant to which online
air-ticketing platform shall not conduct bundle sales of any other services and products by default along with selling air tickets. The online air-ticketing
platform shall display ancillary air-ticket-related services and products (e.g. VIP lounge coupon and insurance) in an explicit and accurate manner and
shall offer such services and products to customers as an option in addition to their air ticket purchases.
In March 2021, the Ministry of Transport of the People’s Republic of China promulgated the Administrative Provisions on Public Air Transport
Passenger Services, which became effective on September 1, 2021, stipulate certain obligation of aviation sales online platform operators and agents.
Regulations Related to E-commerce
The Measures for the Supervision and Administration of Online Trading, or the Online Trading Measures promulgated by the SAMR in March
2021, which became effective since May 2021 and replaced the Administrative Measures for Online Trading promulgated by the SAIC in January 2014,
stipulate the obligations of online trading operators. Social networking, live streaming or other network services providers who provide online trading
platform services for operators shall perform relevant obligations in accordance with the laws and regulations. On December 24, 2014, the MOFCOM
promulgated the Provisions on the Procedures for Formulating Transaction Rules of Third-Party Online Retail Platforms (Trial) to regulate the
formulation, revision and enforcement of transaction rules for online retail marketplace platforms.
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On August 31, 2018, the Standing Committee of the National People’s Congress promulgated the E-Commerce Law, which came into effect on
January 1, 2019. The E-commerce Law imposes a series of requirements on e-commerce operators including e-commerce platform operators, merchants
operating on the platform and the individuals and entities carrying out business online. According to the E-commerce Law, e-commerce operators who
provide search results based on consumers’ characteristics, such as hobbies and consumption habits, shall also provide consumers with options that are
not targeted at their personal characteristics at the same time, respect and fairly protect the legitimate interests of the consumers. In addition,
e-commerce platform operators are not allowed to impose unreasonable restrictions over or add unjustified conditions to transactions concluded on their
platforms by merchants, or charge merchants operating on its platform any unreasonable fees.
An e-commerce operator shall obtain a license for value-added telecommunications services with the specification of online data processing and
transaction processing business from appropriate telecommunications authorities, pursuant to the Telecommunications Regulations and the Catalog of
Telecommunications Services.
Regulations Related to Consumer Protection
The Consumer Protection Law, which was promulgated by the Standing Committee of the National People’s Congress on October 31, 1993, and
last amended on October 25, 2013, effective as of March 15, 2014, sets out the obligations of business operators and the rights and interests of
consumers. Business operators must guarantee the quality, function, usage and term of validity of the goods or services they sell or provide, if these
goods and services are consumed under normal standards. The consumers whose interests have been damaged due to their purchase of goods or
acceptance of services on online platforms may claim damages from the sellers or service providers. Online platform operators may be subject to
liabilities if the lawful rights and interests of consumers are infringed in connection with consumers’ purchase of goods or acceptance of services on
online platforms if the platform operators fail to provide consumers with authentic contact information of the sellers or service providers.
Regulations Related to Internet Information Security and Privacy Protection
Internet content in China is also regulated and restricted from a state security point of view. The Decision Regarding the Safeguarding of Internet
Security, enacted by the Standing Committee of the National People’s Congress on December 28, 2000, and amended with immediate effect on
August 27, 2009, makes it unlawful to conduct certain activities, including but not limited to: gain improper entry into a computer information system of
national affairs, national defense or cutting-edge science and technology. The Administrative Measures for the Security Protection of International
Connections to Computer Information Network, issued by the Ministry of Public Security, or the MPS, on December 30, 1997, and amended on
January 8, 2011, prohibits the use of the internet in ways that, among other things, result in a leakage of state secrets or the distribution of socially
destabilizing content. The Several Provisions on Regulating the Market Order of Internet Information Services were promulgated by the MIIT on
December 29, 2011, and became effective on March 15, 2012. On July 16, 2013, the MIIT issued the Order for the Protection of Telecommunication and
Internet User Personal Information.
On July 1, 2015, the Standing Committee of the National People’s Congress issued the National Security Law, which came into effect on the same
day.
On June 28, 2016, the Cyberspace Administration of China, or the CAC, promulgated the Administrative Provisions on Mobile Internet
Applications Information Services, which became effective on August 1, 2016, providing that mobile Internet application providers are prohibited from
engaging in any activity that may endanger national security, disturb social order or infringe the legal rights of third parties, and may not produce, copy,
release or disseminate through mobile internet applications any content prohibited by laws and regulations.
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On November 7, 2016, the Standing Committee of the National People’s Congress issued the Cyber Security Law, which came into effect on
June 1, 2017. The Cyber Security Law provides that network operators must set up a classified protection system for cyber security. The Cyber Security
Law imposes a relatively vague but broad obligation to provide technical support and assistance to the public and state security authorities in connection
with criminal investigations or for reasons of national security. The Cyber Security Law also requires network operators that provide network access or
domain name registration services, landline or mobile phone network access, or that provide users with information publication or instant messaging
services, to require users to provide a real identity when they sign up.
On January 23, 2019, the Cyberspace Administration of China, the MIIT and the MPS, and the SAMR jointly issued the Notice on Special
Governance of Illegal Collection and Use of Personal Information via Apps, which restates the requirement of legal collection and use of personal
information, encourages app operators to conduct security certifications and encourages search engines and app stores to clearly mark and recommend
those certified apps. On November 28, 2019, the Cyberspace Administration, MIIT, the MPS and SAMR jointly issued the Measures to Identify Illegal
Collection and Usage of Personal Information by Apps, which lists six types of illegal collection and usage of personal information. In July 2020, the
MIIT issued the Notice on Carrying out Special Rectification Actions in Depth against the Infringement on Users’ Rights and Interests by Apps to urge
app service providers, among others, to strengthen the protection of users’ personal information in relation to the download and usage of apps. In March
2021, the CAC the MIIT, the Ministry of Public Security of the PRC and the SAMR jointly issued the Provision on Scope of Necessary Personal
Information for Common Types of Mobile Internet Applications to further provide guidance over personal information security and privacy protection.
The PRC Data Security Law took effect in September 2021, established a tiered system for data protection in terms of their importance. Data
categorized as “important data,” which will be determined by governmental authorities in the form of catalogs, are required to be treated with higher
level of protection. In addition, such operator is required to evaluate the risks of its data activities periodically and file assessment reports with relevant
regulatory authorities.
On August 29, 2015, the Standing Committee of the National People’s Congress issued the Ninth Amendment to the Criminal Law, effective on
November 1, 2015. Any internet service provider that fails to comply with obligations related to internet information security administration as required
by applicable laws and refuses to rectify upon order shall be subject to criminal penalty for (i) any large-scale dissemination of illegal information;
(ii) any severe consequences due to the leakage of the user information; (iii) any serious loss of criminal evidence; or (iv) other severe circumstances.
Furthermore, any individual or entity that (i) sells or provides personal information in a manner which violates relevant regulations, or (ii) steals or
otherwise illegally obtains any personal information is subject to criminal penalty in severe circumstances.
Since September 2021, the CAC and other relevant government authorities promulgated a series of laws and regulations relating to information
protection and data security, including but not limited to, the Guidance on Strengthening the Comprehensive Governance of Internet Information Service
Algorithms, the Administrative Provisions on Internet Information Service Algorithm-Based Recommendation, the Safety Assessment Measures for
Data Outbound Transfer (Draft for Comments), the Administrative Regulations of Internet Data Security (Draft for Comments), the Administrative
Measures on Network Data Security (Draft for Comment), and the Administrative Measures on Data Security in the Field of Industry and Information
Technology (Trial) (Draft for Comments). Among these regulations, the Administrative Measures on Network Data Security (Draft for Comment)
published by the CAC in November 2021 stipulates that data processing entities should apply for cybersecurity review in the event that, among others,
its listing in Hong Kong has or could have influence on national security. As of the date of this annual report, the regulatory parameters for determining
“have or could have influence on national security” as stipulated in the Administrative Measures on Network Data Security (Draft for Comment) remain
unclear and are subject to further explanation and elaboration by the CAC. Substantial uncertainties remain with respect to the enactment timetable, final
content, interpretation, and implementation, especially the detailed interpretation of the standard for determining whether a listing in Hong Kong “has or
could have influence on national security.” As of the date of this annual report, the Administrative Measures on Network Data Security (Draft for
Comment) has not become effective yet, and no application channel or detailed procedures are in place for the implementation of the cybersecurity
review as stipulated therein.
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The Personal Information Protection Law took effect in November 2021, which integrates a variety of rules with respect to personal information
rights and privacy protection and applies to the processing of personal information within mainland China and certain personal information processing
activities outside mainland China, including those for the provision of products and services to natural persons within China or for the analysis and
assessment of acts of natural persons within China. Furthermore, in December 2021, the CAC and several other authorities jointly promulgated the
amended Cybersecurity Review Measures, which took effect in February 2022. Pursuant to the Cybersecurity Review Measures, where the relevant
activity affects or may affect national security, a CIIO that purchases network products and services, or an internet platform operator that conducts data
process activities, must be subject to the cybersecurity review. The Cybersecurity Review Measures also expands the cybersecurity review requirement
to cover “internet platform operators” in possession of personal information of over one million users if such operators intend to pursue a foreign list.
Additionally, relevant PRC governmental authorities may initiate cybersecurity review if they determine an internet platform operator’s network
products or services or data processing activities affect or may affect national security. According to the Regulations on the Security Protection of
Critical Information Infrastructure which became effective in September 2021, the CIIO shall perform certain obligations to protect the critical
information infrastructure’s security, including but not limited to, conducting network security test and risk assessment at least once a year. The security
protection departments are responsible for organizing the identification of critical information infrastructure in their respective industries and areas in
accordance with the identification rules, and shall inform the identification results to the operators in a timely manner and report such results to the
public security department of the State Council. The PRC government authorities have wide discretion in the interpretation and enforcement of these
laws. As a major internet platform, we are exposed to risks of being deemed to be a CIIO or a network platform operator meeting the above criteria
under the PRC cybersecurity laws.
Regulations Related to Advertising Business
The Advertisement Law of China, which was promulgated by the Standing Committee of the National People’s Congress on October 27, 1994,
and last amended on April 29, 2021, requires advertisers to ensure that the content of the advertisements are true. The content of advertisements shall
not contain prohibited information, including but not limited to: (i) information that harms the dignity or interests of the State or divulges the secrets of
the State, (ii) information that contains wordings such as “national level,” “highest level” and “best” and (iii) information that contains ethnic, racial,
religious or sexual discrimination. Advertisements posted or published through the internet shall not affect normal usage of network by users.
Advertisements published in the form of pop-up window on the internet shall display the close button clearly to make sure that the viewers can close the
advertisement by one click.
The Internet Advertisement Interim Measures, which were promulgated by the SAIC on July 4, 2016, and became effective on September 1, 2016,
regulate any advertisement published on the Internet, including but not limited to, those on websites, webpage and apps, those in the forms of word,
picture, audio, video and others. According to the Internet Advertisement Measures, Internet information service providers must stop any person from
using their information services to publish illegal advertisements if they are aware of, or should reasonably be aware of, such illegal advertisements even
if the Internet information service provider merely provides information services and has not involved in the internet advertisement businesses. In
November 2021, the SAMR released a draft of Measures for Administration of Internet Advertising, or the Draft Internet Advertising Measures, which
stipulate the obligations of the advertisers, the internet advertising operators and the internet information service providers. According to the Draft
Internet Advertising Measures, if the content of internet live streaming constitutes a commercial advertisement, relevant live streaming operators and
marketers shall take the responsibilities of and perform obligations in accordance with the laws and regulations. As of the date of this annual report, the
Draft Internet Advertising Measures has yet to come into effect.
Regulations Related to Insurance Business
In June 2007, the China Insurance Regulatory Commission, which has been merged into the China Banking and Insurance Regulatory
Commission, or the CBIRC, promulgated the Administrative Measures for Insurance Licenses, which was amended in February 2020. In April 2021, the
CBIRC promulgated the Administrative Measures for Licenses of Banking and Insurance Institutions, which became effective on July 1, 2021 and
replaced the Administrative Measures for Insurance Licenses. According to these measures, insurance agencies must obtain an insurance intermediary
license.
In November 2020, the CBIRC promulgated the Provisions on the Supervision and Administration of Insurance Agencies, which took effect on
January 1, 2021 and replaced the Provisions for the Supervision and Administration of Professional Insurance Agencies issued in September 2009,
pursuant to which an “insurance agency” refers to an agent that is instructed by and receives commissions from insurance companies to handle insurance
services to the extent authorized by the insurance companies, including professional insurance agencies, sideline insurance agencies, and individual
insurance agents. Professional insurance agencies and the sideline insurance agencies who are legal persons must obtain license relating to insurance
agency operations from the CBIRC.
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In December 2020, the CBIRC issued the Measures on the Supervision and Administration of Internet Insurance Business, which took effect on
February 1, 2021 and replaced the Interim Measures on the Supervision and Administration of Internet Insurance Business issued in July 2015, pursuant
to which internet insurance businesses shall be carried out by insurance institutions legally established, including insurance companies and insurance
intermediaries, and the insurance institutions are required to run a self-operated online platform that satisfy certain conditions.
Regulations Related to Intellectual Property Rights
Trademark
Trademarks are protected by the Trademark Law of China which was promulgated by the Standing Committee of the National People’s Congress
on August 23, 1982, last amended on April 23, 2019, and took effect on November 1, 2019, as well as the Implementation Regulation of the PRC
Trademark Law, adopted by the State Council on August 3, 2002, and revised on April 29, 2014. In the PRC, registered trademarks include commodity
trademarks, service trademarks, collective marks and certification marks. The Trademark Office of China National Intellectual Property Administration
handles trademark registrations and grants a term of 10 years to registered trademarks commencing from the date of registration and the registered
trademarks can be renewable every 10 years where a registered trademark needs to be used after the expiration of its validity term.
Patent
According to the Patent Law of China, or the Patent Law, promulgated by the Standing Committee of the National People’s Congress on
March 12, 1984, last amended on October 17, 2020 and will be effective on June 1, 2021, and the Implementing Rules of the Patent Law of China,
promulgated by the State Council on June 15, 2001, last amended on January 9, 2010, and effective from February 1, 2010, there are three types of
patents in the PRC: invention patents, utility model patents and design patents. Under the currently effective Patent Law, the protection period of a
patent right for invention patents shall be 20 years and the protection period of a patent right for utility model patents and design patents shall be 10
years, both commencing from the filing date. According to the Patent Law, any entity or individual that seeks to exploit a patent owned by another party
shall enter into a patent license contract with the patent owner concerned and pay patent royalties to the patent owner. Pursuant to the Measures for the
Filling of Patent Licensing Contracts, promulgated by the State Intellectual Property Office on June 27, 2011, and effective as of August 1, 2011, the
State Intellectual Property Office shall be responsible for filing of patent licensing contracts nationwide and the parties concerned shall complete filing
formalities within three months from the effective date of a patent licensing contract.
Copyright
The Copyright Law of China, or the Copyright Law, which was promulgated by the Standing Committee of the National People’s Congress on
September 7, 1990, last amended on November 11, 2020, and will take effect on June 1, 2021. Under the currently effective Copyright Law, Chinese
citizens, legal persons, or other organizations shall, whether published or not, enjoy copyright in their works, which include, among others, works of
literature, art, natural science, social science, engineering technology and computer software. The purpose of the Copyright Law aims to encourage the
creation and dissemination of works which is beneficial for the construction of socialist spiritual civilization and material civilization and promote the
development and prosperity of socialist cultural and scientific undertakings.
The Computer Software Copyright Registration Measures, or the Software Copyright Measures, promulgated by the National Copyright
Administration of China on February 20, 2002, regulate registrations of software copyright, exclusive licensing contracts and transfer contracts for
software copyright. The National Copyright Administration shall be the competent authority for the nationwide administration of software copyright
registration and the Copyright Protection Center of China is designated as the software registration authority. The Copyright Protection Center of China
shall grant registration certificates to the Computer Software Copyrights applicants if the applications conform to the provisions of both the Software
Copyright Measures and the Computer Software Protection Regulations.
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Domain Names
The Administrative Measures on Internet Domain Names, which was promulgated by the MIIT on August 24, 2017, and became effective on
November 1, 2017, regulates the “.CN” and the “zhongguo (in Chinese character)” shall be China’s national top level domains. Any party that engages
in internet information services shall use its domain name in compliance with laws and regulations and in line with relevant provisions of the
telecommunications authority, and shall not use its domain name to commit any illegal act.
Regulations Related to Anti-monopoly and Anti-unfair Competition
According to the Anti-Unfair Competition Law of China, or the Anti-Unfair Competition Law, which was adopted by the Standing Committee of
the National People’s Congress on September 2, 1993, became effective as of December 1, 1993, and last amended on April 23, 2019, unfair
competition refers to that the operator disrupts the market competition order and damages the legitimate rights and interests of other operators or
consumers in violation of the provisions of the Anti-unfair Competition Law in the production and operating activities. Pursuant to the Anti-unfair
Competition Law, operators shall abide by the principle of voluntariness, equality, impartiality, integrity and adhere to laws and business ethics during
market transactions. Operators in violation of the Anti-unfair Competition Law shall bear corresponding civil, administrative or criminal liabilities
depending on the specific circumstances.
In February 2021, the Anti-Monopoly Guidelines for the Internet Platform Economy Sector, or the Anti-Monopoly Guidelines, was promulgated
by the Antimonopoly Commission of the PRC State Council. The Anti-Monopoly Guidelines outlines certain practices that may, if without justifiable
reasons, constitute abuse of dominant position. Besides, the Anti-Monopoly Guidelines expressly states that concentration involving consolidated
affiliated Chinese entities will also be subject to antitrust filing requirements.
On August 17, 2021, the SAMR issued the Provisions on Preventing Unfair Online Competition (Draft for Comments), which detailed the
implementation of the PRC Unfair Competition Law, including specifying certain online unfair competition behaviors that should be prohibited. As of
the date of this annual report, the draft has not been formally adopted.
Regulations Related to Labor and Social Security
According to the Labor Law of China, which was promulgated by the Standing Committee of the National People’s Congress on July 5, 1994,
came into effect on January 1, 1995, and was last amended on December 29, 2018, the Labor Contract Law of China, which was promulgated by the
Standing Committee of the National People’s Congress on June 29, 2007, came into effect on January 1, 2008, and was amended on December 28, 2012,
and came into effect on July 1, 2013, and the Implementation Regulations on Labor Contract Law of China, which was promulgated and came into
effect on September 18, 2008, by the State Council, labor contracts in written form shall be executed to establish labor relationships between employers
and employees. In addition, wages cannot be lower than local minimum wage. The employers must establish a system for labor safety and sanitation,
strictly abide by State rules and standards, provide education regarding labor safety and sanitation to its employees, provide employees with labor safety
and sanitation conditions and necessary protection materials in compliance with State rules and carry out regular health examinations for employees
engaged in work involving occupational hazards.
According to the Social Insurance Law of China, which was promulgated by the Standing Committee of the National People’s Congress on
October 28, 2010, came into effect on July 1, 2011, and was amended on December 29, 2018, the Provisional Regulations on the Collection and
Payment of Social Insurance Premium, which was promulgated by the State Council on January 22, 1999, and amended on March 24, 2019, and the
Regulations on the Administration of Housing Fund, which was promulgated by the State Council on April 3, 1999, came into effective on the same date
and was last amended on March 24, 2019, employers are required to contribute, on behalf of their employees, to a number of social security funds,
including funds for basic pension insurance, unemployment insurance, basic medical insurance, occupational injury insurance, maternity insurance and
housing funds. Any employer who fails to contribute may be fined and ordered to make up for the deficit within a stipulated time limit.
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Regulations Related to Taxation
EIT
According to the Enterprise Income Tax Law of China, or the EIT Law, which was promulgated on March 16, 2007, came into effect on
January 1, 2008, and last amended on December 29, 2018, and the Implementation Regulations on the Enterprise Income Tax Law, which was
promulgated by the State Council on December 6, 2007, came into effect on January 1, 2008, amended by the State Council on April 23, 2019, and
came into effect on the same date, a uniform income tax rate of 25% will be applied to resident enterprises and non-resident enterprises that have
“establishment or place” situated in China. Besides enterprises established within the PRC, enterprises established in accordance with the laws of other
judicial districts whose “de facto management bodies” are within the PRC are considered “resident enterprises” and subject to the uniform 25%
enterprise income tax rate for their global income. A non-resident enterprise refers to an entity established under foreign law whose “de facto
management bodies” are not within the PRC but which have an establishment or place of business in the PRC, or which do not have an establishment or
place of business in the PRC but have income sourced within the PRC. An income tax rate of 10% will normally be applicable to dividends declared to
or any other gains realized on the transfer of shares by non-PRC resident enterprise investors that do not have an establishment or place of business in
the PRC, or that have such establishment or place of business but the relevant income is not substantially connected with the establishment or place of
business, to the extent such dividends or other gains are derived from sources within the PRC.
According to the Arrangement for the Avoidance of Double Taxation and Tax Evasion between Mainland of China and Hong Kong entered into
between Mainland China and Hong Kong on August 21, 2006, if the non-PRC parent company of a PRC enterprise is a Hong Kong resident which
directly owns 25% or more of the equity interest of the PRC foreign-invested enterprise which pays the dividends and interests, the 10% withholding tax
rate applicable under the EIT Law may be lowered to 5% for dividends and 7% for interest payments if a Hong Kong resident enterprise is determined
by the competent PRC tax authority to have satisfied the relevant conditions and requirements under such the Arrangement for the Avoidance of Double
Taxation and Tax Evasion between Mainland of China and other applicable laws. However, according to the Notice on the Certain Issues with Respect
to the Enforcement of Dividend Provisions in Tax Treaties, which was promulgated by the STA on February 20, 2009, and came into effect on the same
date, if the relevant PRC tax authorities determine, in their discretion, that a company benefits unjustifiably from such reduced income tax rate due to a
transaction or arrangement that is primarily tax-driven, such PRC tax authorities may adjust the preferential tax treatment; and based on the
Announcement of the Certain Issues with Respect to the “Beneficial Owner” in Tax Treaties, issued by the STA on February 3, 2018, and effective on
April 1, 2018, if an applicant’s business activities do not constitute substantive business activities, it could result in the negative determination of the
applicant’s status as a “beneficial owner,” and consequently, the applicant could be precluded from enjoying the above-mentioned reduced income tax
rate of 5% under the Arrangement for the Avoidance of Double Taxation and Tax Evasion between Mainland of China and Hong Kong.
VAT
The Provisional Regulations on Value-added Tax, which was promulgated on December 13, 1993, came into effect on January 1, 1994, last
amended on November 19, 2017, and the Detailed Implementing Rules of the Provisional Regulations on Value-added Tax, which was promulgated on
December 18, 2008, and amended on October 28, 2011, came into effect on November 1, 2011, set out that all taxpayers selling goods or providing
processing, repairing or replacement labor services, sales of services, intangible assets and real property and importing goods in China shall pay a value-
added tax.
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The State Council approved, and the STA and the Ministry of Finance officially launched a pilot value-added tax reform program starting from
January 1, 2012, or the VAT Pilot Program, applicable to businesses in selected industries. Businesses in the VAT Pilot Program would pay value-added
tax instead of business tax. The VAT Pilot Program was initiated in Shanghai, then further applied to 10 additional regions such as Beijing and
Guangdong province. On November 19, 2017, the State Council promulgated the Decisions on Abolishing the Provisional Regulations of China on
Business Tax and Amending the Provisional Regulations of China on Value-added Tax, according to which, all enterprises and individuals engaged in
the sale of goods, the provision of processing, repairing and replacement labor services, sales of services, intangible assets, real property and the
importation of goods within the territory of China are the taxpayers of value-added tax. The value-added tax rates generally applicable are simplified as
17%, 11%, 6% and 0%, and the value-added tax rate applicable to the small-scale taxpayers is 3%. According to the Notice of the Ministry of Finance
and the STA on Adjusting Value added Tax Rates, issued on April 4, 2018, and became effective on May 1, 2018, the value-add tax rates of 17% and
11% applicable to the taxpayers who have value-added tax taxable sales activities or imported goods are adjusted to 16% and 10%, respectively.
According to the Notice of the Ministry of Finance, the STA and the General Administration of Customs on Relevant Policies for Deepening Value
Added Tax Reform, issued on March 20, 2019, and became effective on April 1, 2019, such value added tax rate was reduced to 13% and 9%,
respectively. According to a series of announcements published by the MOF and the STA, the value-added tax rate applicable to the small-scale
taxpayers is reduced to 1% from March 1, 2020 to March 31, 2022, except for small-scale taxpayers in Hubei province that were exempted from paying
value-added tax until March 31, 2021. Since April 1, 2022 to December 31, 2022, small-scale taxpayers are exempted from paying value-added tax.
Regulations Related to Foreign Exchange Control
The principal regulations governing foreign currency exchange in China are the Regulation on the Foreign Exchange Control of PRC,
promulgated by the State Council on January 29, 1996, came into effect on April 1, 1996, and last amended on August 5, 2008, and the Regulations on
the Administration of Foreign Exchange Settlement, Sale and Payment, promulgated by the People’s Bank of China in June 1996 and came into effect
on July 1, 1996, according to which, Renminbi for current account items is freely convertible, including the distribution of dividends, interest payments,
trade and service-related foreign exchange transactions, but not for capital account items, such as direct investments, loans and investments in securities
outside of China, unless the prior approval or record-filing of SAFE or its local counterpart is obtained.
According to the Notice on Further Simplifying and Improving Policies for the Foreign Exchange Administration of Direct Investment, or the
SAFE Circular 13, which was promulgated by SAFE on February 13, 2015, came effective on June 1, 2015, and amended on December 30, 2019, banks
are required to review and carry out foreign exchange registration under foreign direct investment. The SAFE and its branches shall implement indirect
supervision over foreign exchange registration of foreign direct investment via the banks. The Circular on the Reforming of Administrative Methods
Regarding the Foreign Exchange Capital Settlement of Foreign-Invested Companies, or the SAFE Circular 19, promulgated on March 30, 2015, came
into effective on June 1, 2015, and last amended on December 30, 2019, allows foreign-invested enterprises whose main business is investment to make
equity investments by using RMB fund converted from foreign exchange capital. Under the SAFE Circular 19, the foreign exchange capital in the
capital account of foreign-invested enterprises upon the confirmation of interests of monetary contribution by the local foreign exchange bureau (or the
book-entry registration of monetary contribution by the banks) can be settled at the banks based on the actual operation needs of the enterprises. The
proportion of willingness-based foreign exchange settlement of capital for foreign-invested enterprises is temporarily set at 100%. The SAFE can adjust
such proportion in due time based on the circumstances of the international balance of payments. However, SAFE Circular 19 and the Circular on
Reforming and Regulating the Administrative Policy of the Settlement under Capital Accounts, promulgated on June 9, 2016, continues to prohibit
foreign-invested enterprises from, among other things, using RMB fund converted from its foreign exchange capitals for expenditure beyond its
business scope, investing and financing directly or indirectly in securities and other investments except for bank’s principal-secured products, providing
loans to non-affiliated enterprises except as permitted by its business scope, or constructing or purchasing real estate not for self-use.
On October 23, 2019, the SAFE released the Circular on Further Promoting the Facilitation of Cross-Border Trade and Investment, according to
which besides foreign-invested enterprises engaged in investment business, non-investment foreign-invested enterprises are also permitted to make
domestic equity investments with their capital funds in foreign currency provided that such investments do not violate the Negative List (2020) and the
target investment projects are genuine and in compliance with laws. According to the Circular on Optimizing Administration of Foreign Exchange to
Support the Development of Foreign-related Business, issued by the SAFE on April 10, 2020, eligible enterprises are allowed to make domestic
payments by using their income under capital accounts, such as capital funds, foreign debts and the proceeds from overseas listing, without submitting
the evidentiary materials concerning authenticity of such capital for banks in advance; provided that their capital use is authentic and in compliance with
administrative regulations on the use of income under capital accounts. The bank in charge shall conduct post spot checking in accordance with the
relevant requirements.
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According to the Notices on Issues Concerning the Foreign Exchange Administration for Domestic Individuals Participating in Stock Incentive
Plans of Overseas Publicly Listed Companies, which was promulgated by SAFE in February 2012, PRC citizens or non-PRC citizens residing in China
for a continuous period of not less than one year (except for foreign diplomatic personnel in China and representatives of international organizations in
China) who participate in any stock incentive plan of an overseas publicly listed company shall, collectively entrust a domestic agency (may be the
Chinese affiliate of the overseas publicly listed company which participates in stock incentive plan, or other domestic institutions qualified for asset trust
business lawfully designated by such company) through the Chinese affiliate of the overseas publicly listed company to handle foreign exchange
registration, and entrust an overseas institution to handle issues like exercise of options, purchase and sale of corresponding stocks or equity and transfer
of corresponding funds. In addition, the domestic agency is required to amend the SAFE registration with respect to the stock incentive plan if there is
any material change to the stock incentive plan.
The Circular of the SAFE on Foreign Exchange Administration of Overseas Investments and Financing and Round-Trip Investments by Domestic
Residents via Special Purpose Vehicles promulgated by the SAFE on July 4, 2014, and came into effective on the same date, which replaced the Circular
of the SAFE on Foreign Exchange Administration for Financing and Round-Trip Investments by Domestic Residents via Overseas Special Purchase
Vehicles promulgated by the SAFE on October 21, 2005 and came into effective on November 1, 2005, states that (i) a PRC resident, including a PRC
resident natural person or a PRC legal person, shall register with the local branch of the SAFE before it contributes its assets or equity interest in
domestic enterprises or offshore assets or interests into a special purpose vehicle for the purpose of investment and financing; and (ii) when the special
purpose vehicle undergoes change of basic information, such as change in PRC resident natural person shareholder, name or operating period, or
occurrence of a material event, such as change in share capital of a PRC resident natural person, performance of merger or split, the PRC resident shall
register such change with the local branch of the SAFE in a timely manner.
Regulations Related to Dividend Distributions
The principal laws and regulations regulating the dividend distribution of dividends by foreign-invested enterprises in China include the Company
Law of China last amended in 2018 and the FIL. Under the current regulatory regime in the PRC, foreign-invested enterprises in the PRC may pay
dividends only out of their accumulated profit, if any, determined in accordance with PRC accounting standards and regulations. A PRC company,
including foreign-invested enterprise, is required to set aside as statutory reserve funds at least 10% of its after-tax profit, until the cumulative amount of
such reserves funds reaches 50% of its registered capital, and shall not distribute any profits until any losses from prior fiscal years have been offset.
Profits retained from prior fiscal years may be distributed together with distributable profits from the current fiscal year.
Regulations Related to M&A and Overseas Listings
The M&A Rules was jointly promulgated by six PRC governmental authorities including the MOFCOM, the STA, the SAFE, the SAIC, the State-
owned Assets Supervision and Administration Commission of the State Council and the CSRC on August 8, 2006, and amended on June 22, 2009.
Foreign investors must comply with the M&A Rules when they purchase equity interests of a domestic company or subscribe the increased capital of a
domestic company, and thus changing of the nature of the domestic company into a foreign-invested enterprise; or when the foreign investors establish a
foreign-invested enterprise in China, purchase and operate the assets of a domestic company; or when the foreign investors purchase the assets of a
domestic company by agreement, establish a foreign-invested enterprise by injecting such assets, and operate the assets. According to Article 11 of the
M&A Rules, where a domestic enterprise, or a domestic natural person, through an overseas company established or controlled by it/him/her, acquires a
domestic enterprise which is related to or connected with it/him/her, approval from the MOFCOM is required. The M&A Rules, among other things,
further purport to require that an offshore special purpose vehicle, formed for listing purposes and controlled directly or indirectly by PRC companies or
individuals, shall obtain the approval of the CSRC prior to the listing and trading of such special purpose vehicle acquires shares of or equity interests in
the PRC companies in exchange for the shares of offshore companies.
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On July 6, 2021, the relevant PRC government authorities issued Opinions on Strictly Cracking Down Illegal Securities Activities in Accordance
with the Law. These opinions emphasized the need to strengthen the administration over illegal securities activities and the supervision on overseas
listings by China-based companies and proposed to take effective measures, such as promoting the construction of relevant regulatory systems to deal
with the risks and incidents faced by China-based overseas-listed companies. As a follow-up, on December 24, 2021, the State Council issued a draft of
the Provisions of the State Council on the Administration of Overseas Securities Offering and Listing by Domestic Companies, or the Draft Provisions,
and the CSRC issued a draft of Administration Measures for the Filing of Overseas Securities Offering and Listing by Domestic Companies, or the Draft
Administration Measures, for public comments.
The Draft Provisions and the Draft Administration Measures propose to establish a new filing-based regime to regulate overseas offerings and
listings by domestic companies. According to the Draft Provisions and the Draft Administration Measures, an overseas offering and listing by a
domestic company, whether directly or indirectly, shall be filed with the CSRC. Specifically, the examination and determination of an indirect offering
and listing will be conducted on a substance-over-form basis, and an offering and listing shall be considered as an indirect overseas offering and listing
by a domestic company if the issuer meets the following conditions: (i) the operating income, gross profit, total assets, or net assets of the domestic
enterprise in the most recent fiscal year was more than 50% of the relevant line item in the issuer’s audited consolidated financial statement for that year;
and (ii) senior management personnel responsible for business operations and management are mostly PRC citizens or are ordinarily resident in the
PRC, and the main place of business is in the PRC or the business is mainly carried out in the PRC. According to the Draft Administration Measures, the
issuer or its affiliated domestic company, as the case may be, shall file with the CSRC for its initial public offering, follow-on offering and other
equivalent offing activities. Particularly, the issuer shall submit the filing with respect to its initial public offering and listing within three business days
after its initial filing of the listing application, and submit the filing with respect to its follow-on offering within three business days after completion of
the follow-on offering. Failure to comply with the filing requirements may result in fines to the relevant domestic companies, suspension of their
businesses, revocation of their business licenses and operation permits and fines on the controlling shareholder and other responsible persons. The Draft
Administration Measures also sets forth certain regulatory red lines for overseas offerings and listings by domestic enterprises. As of the date of this
annual report, these drafts have not been formally adopted.
Relatedly, on December 27, 2021, the NDRC and the Ministry of Finance, or the MOC, jointly issued the Special Administrative Measures
(Negative List) for Foreign Investment Access (2021 Version), or the 2021 Negative List, which became effective on January 1, 2022. Pursuant to the
2021 Negative List, if a PRC domestic company engaging in the prohibited business stipulated in the 2021 Negative List seeks an overseas offering and
listing, it shall obtain the approval from the competent governmental authorities. Besides, the foreign investors of the company shall not be involved in
the company’s operation and management, and their shareholding percentages shall be subject, mutatis mutandis, to the relevant regulations on the
domestic securities investments by foreign investors.
C. Organizational Structure
The following diagram illustrates our corporate structure, including our significant subsidiaries and consolidated affiliated Chinese entities as of
December 31, 2021.
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Notes:
(1)
(2)
(3)
(4)
(5)
(6)
(7)
For further details about the indirect ownership of Qunar Cayman Islands Limited, see “Item 4. Information on the Company — A. History and Development of the Company.”
Indirectly owned through Ctrip Travel Holding, a Cayman Islands company, and its Hong Kong subsidiary, Ctrip Travel Holding (Hong Kong) Limited.
Indirectly owned through Ctrip Investment (Shanghai) Co., Ltd., a PRC company.
Indirectly owned through Queen’s Road Travel Information Limited, a Hong Kong company.
Min Fan and Qi Shi hold 99.5% and 0.5% of the equity interest in Chengdu Ctrip Travel Agency Co., Ltd., respectively.
Bo Sun and Maohua Sun hold 89.8% and 10.2% of the equity interest in Shanghai Ctrip Commerce Co., Ltd., respectively.
Hui Cao and Hui Wang hold 60% and 40% of the equity interest in Beijing Qu Na Information Technology Co., Ltd., respectively.
We are a holding company incorporated in the Cayman Islands and rely on dividends from our subsidiaries in China and consulting and other fees
paid to our subsidiaries by our consolidated affiliated Chinese entities. We conduct a majority of our business through our wholly-owned subsidiaries in
China. Due to the current restrictions on foreign ownership of travel agency and value-added telecommunications businesses in China, we have
conducted part of our operations in these businesses through a series of contractual arrangements between our PRC subsidiaries and our consolidated
affiliated Chinese entities. Our significant consolidated affiliated Chinese entities included Ctrip Commerce, Shanghai Huacheng, Chengdu Ctrip, and
Qunar Beijing as of December 31, 2021. From time to time, we amended and restated the contractual arrangements that we had entered into with our
consolidated affiliated Chinese entities in order to further strengthen our ability to control these entities and receive substantially all of the economic
benefits from them. We have entered into additional contractual arrangements based on substantially the same series of amended and restated forms with
our other consolidated affiliated Chinese entities subsequent to our adoption of these forms, and plan to enter into substantially the same series of
agreements with all of our future consolidated affiliated Chinese entities. From 2015 to 2021, we further optimized the functions of our various
consolidated affiliated Chinese entities to avoid duplicative operations among these consolidated affiliated Chinese entities.
As of the date of this report, some of our directors and officers are principal record owners of our consolidated affiliated Chinese entities. Each of
them has signed an irrevocable power of attorney to appoint the primary beneficiary of the applicable consolidated affiliated Chinese entity or its
designated person, as attorney-in-fact to vote, by itself or any other person to be designated at its discretion, on all matters of our consolidated affiliated
Chinese entities. Each power of attorney will remain effective during the existence of the applicable consolidated affiliated Chinese entity.
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D. Property, Plants and Equipment
Our principal place of business is located in Shanghai, China, where we own over 179,000 square meters of customer service center, principal
sales, marketing and development facilities, and administrative offices. We also own and occupy another customer service center in Nantong, China with
a total floor area of 80,000 square meters.
As of February 28, 2022, we leased offices and data centers with an aggregate gross floor area of over 67,000 square meters.
ITEM 4.A. UNRESOLVED STAFF COMMENTS
Not applicable.
ITEM 5.
OPERATING AND FINANCIAL REVIEW AND PROSPECTS
The following discussion of our financial condition and results of operations is based upon and should be read in conjunction with our
consolidated financial statements and their related notes included in this annual report on Form 20-F. This annual report contains forward-looking
statements. See “Forward-Looking Statement.” In evaluating our business, you should carefully consider the information provided under the caption
“Item 3. Key Information — D. Risk Factors” in this annual report. We caution you that our businesses and financial performance are subject to
substantial risks and uncertainties.
A. Operating Results
We are a leading one-stop travel platform globally, integrating a comprehensive suite of travel products and services and differentiated travel
content. We are the go-to destination for travelers in China, and increasingly for travelers around the world, to explore travel and get inspired, to make
informed and cost-effective travel bookings, and to enjoy hassle-free, on-the-go support and share travel experience.
In 2021, we derived approximately 41%, 34%, 6%, 7%, and 12% of our total revenues from our accommodation reservation, transportation
ticketing, packaged tour, corporate travel, and other products and services, respectively.
In 2021, we generated our revenues primarily from the Greater China, based on the geographic location of our websites. See Notes 22 to our
audited consolidated financial statements included elsewhere in this annual report for further information. Also as part of our international strategy, we
consummated the acquisition transaction of the United Kingdom-based Skyscanner in December 2016 and maintained its independent management of
operations as part of the Trip.com Group to complement our positioning at a global scale.
Major Factors Affecting Our Results of Operations
Economy and Travel Industry Trends
As a leading travel platform both in China and globally, our business is driven by the demand for travel services in our key markets, especially in
China, which primarily depends on the growth of the economy. Economic growth generally stimulates willingness to pay for travel services and their
affordability, thus helping increase travel frequency and spending.
We also benefit from certain other key trends in China’s travel industry that affect how and how often users choose to purchase travel services,
such as the increasing consumption potential in China’s rising middle class, user preference for diverse travel options and quality experience, the
booming demand for travel and high-quality user experience, and technology-driven enhancement in the travel industry supply chain.
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Our business and results of operations can be adversely affected by disruptions in the travel industry, such as (i) the outbreaks of pandemics such
as COVID-19, epidemics, or fear of spread of contagious diseases, (ii) geopolitical uncertainty, political unrest, or civil strife, (iii) natural disasters or
poor weather conditions, such as hurricanes, earthquakes, or tsunamis, and (iv) any travel restrictions or other security procedures implemented in
connection with any major events in key markets. While we have demonstrated the resilience of our business model during the current COVID-19
pandemic, our financial condition, results of operations, and cash flows for 2020 and 2021 were affected by the downturn in the travel industry and
general economy associated with the COVID-19 pandemic, and the impact may continue in subsequent periods. For details, see “—Impact of the
COVID-19 Pandemic on Our Operations.”
Despite the ongoing adverse impact to the global economy and travel industry in 2021 due to the COVID-19 pandemic, we expect the economy
and travel industry to resume growth in 2022 and beyond.
The depth and breadth of our travel offerings
Our results of operations depend on the effectiveness of our product and service offerings and our ability to broaden our offerings to appeal to
wider audience, which contributes to our GMV growth. We offer a comprehensive suite of travel products and services leveraging our network of
ecosystem partners. Our relationships with the expanding pool of ecosystem partners enable us to provide diverse selection of travel offerings from
budget to premium products and services, including long-tail and customized products, to satisfy the needs of our user base. In addition, we have been
upgrading our open platform that connects us with domestic and international travel partners, search engines, e-commerce platforms, and other
ecosystem partners to expand our business opportunities.
Our financial performance is also affected by our product and service mix. Our products and services have different, sometimes contrasting, GMV
contribution and take rates. For example, transportation ticketing is relatively a low take rate service, while accommodation reservation is typically a
high take rate service. In addition, GMVs, take rates, and terms of travel products and service may vary depending on the specific ecosystem partners
providing them. Any material changes in our product and service mix could materially affect our results of operations.
Our ability to strengthen our brand recognition and maintain market position
We operate some of the most recognized travel brands. Our ability to strengthen our brand recognition and maintain our market position among
the OTA platforms is critical for us to build and maintain relationships with our users and ecosystem partners. We have built a number of well-known
travel brands in China and globally, and have solidified our market position over the past two decades. In order to strengthen our brand recognition and
maintain market position, we may need to increase our investments in marketing activities, product and service development, and user and ecosystem
partner engagement, which may affect our operating margin.
Our market position and our ability to attract new users and continue to retain and engage our existing users also depends on our ability to
continue to provide users with superior experiences. For years, we have been consistently enhancing our technology, product, service, and content
offerings, and user interfaces to offer a personalized, convenient, enjoyable, and inspirational user experience. We have also been continuously catering
to our users’ diverse needs and evolving preferences.
Our ability to enhance operating efficiency
Our results of operations have been, and will continue to be, affected by our ability to improve our operating efficiency, especially through
investment in technology. As our business continues to scale up, it is essential to improve operating efficiency to enhance the competitiveness of our
platform. For example, our AI capabilities coupled with our in-depth travel insights accumulated throughout our operating history allow us to curate
suitable travel products and offer personalized recommendations to individual users, which enables significant cross-selling opportunities on our
platform. In addition, we apply various AI technologies to achieve effective and precise marketing with reduced cost. In the future, we will continue to
invest in technology to further enhance our operations, which may increase our capital expenditure or operating costs but will improve our operating and
cost efficiency and service quality in the long run.
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Seasonality
Our users generally come to our platform for travel products and services to satisfy their leisure and business trip needs. Therefore, our business is
subject to seasonal fluctuations, and our revenues may vary from quarter to quarter throughout a year. Since most of our users are from China, to date,
the third quarter of each year generally contributes the highest portion of our annual net revenues primarily due to the strong demand for both leisure
and business travel activities during the summer. Our future results may continue to be affected by such seasonal fluctuations.
Impact of COVID-19 on Our Operations
Our results of operations for the year ended December 31, 2021 have been significantly and negatively impacted by the COVID-19 pandemic. The
pandemic drove a significant decline in travel demand resulting in reservation cancelations and reduced new orders. In response to the COVID-19
pandemic, we have swiftly adopted cost control measures to mitigate a significant slowdown in user demand. As the COVID-19 pandemic is still
evolving, we will continuously review the provisions for losses and make adjustment accordingly.
For the year ended December 31, 2021, our financial performance was materially and adversely affected as a result of the domestic and
international travel restrictions and significant incremental costs and expenses incurred to facilitate our users’ cancelations and refund requests. While
we have seen recovery in the China travel market in 2021 due to the substantial containment of the COVID-19 pandemic in China, we have seen a
slower recovery of the international travel market, and in turn, a slower recovery of our international business. In addition, we made provisions for the
expected difficulty in collection of receivables, which resulted in additional allowance for expected credit losses from the receivables due from our
customers, and significant downward adjustments and impairment to our long-term investments, as the impacts of the COVID-19 pandemic on certain
of our long-term investments are considered to be other than temporary. In 2021, we recognized allowance for credit losses of RMB141 million (US$22
million) and impairments of long-term investments of RMB96 million (US$15 million), compared to RMB700 million and RMB905 million in the same
period in 2020, respectively. As of December 31, 2021, our long-term investments consisted of debt investment of RMB16.5 billion (US$2.6 billion)
and equity investments of RMB28.5 billion (US$4.5 billion). While the duration and the development of the pandemic is difficult to predict, our
performance generally improved in 2021 compared to 2020, in terms of our key financial metrics such as revenues and net loss, benefiting from the
containment of the COVID-19 pandemic in China in 2021.
The global spread of COVID-19 pandemic in a significant number of countries around the world has resulted in, and may intensify, global
economic distress, and the extent to which it may affect our financial condition, results of operations, and cash flows will depend on future
developments, which are highly uncertain and cannot be reasonably predicted. In 2021 and early 2022, there were several waves of COVID-19
infections emerged in various regions of China. In response to those emerged cases, precautionary measures, including varying levels of travel
restrictions, quarantine and testing requirements, and encouragement of reduced travel, were reinstated in China. These measures reduce users’ demand
for our products, and materially and adversely affected our results of operations in 2021 and potentially beyond. See “Item 3. Key Information—D. Risk
Factors—Risks Relating to Our Business and Industry—Pandemics (such as COVID-19), epidemics, or fear of spread of contagious diseases could
disrupt the travel industry and our operations, which could materially and adversely affect our business, financial condition, and results of operations.”
Any future outbreak of contagious diseases or similar adverse public health developments, extreme unexpected bad weather, or severe natural
disasters would affect our business and operating results. Ongoing concerns regarding contagious disease or natural disasters, particularly its effect on
travel, could adversely affect our users’ desire to travel. If there is a recurrence of an outbreak of certain contagious diseases or natural disasters, travel
to and from affected regions could be curtailed. Public policy regarding, or governmental restrictions on, travel to and from these and other regions on
account of an outbreak of any contagious disease or occurrence of natural disasters could materially and adversely affect our business and operating
results.
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Key Components of Our Results of Operations
Revenues
We generate our revenues primarily from the accommodation reservation and transportation ticketing businesses. The table below sets forth the
revenues from our principal lines of business as a percentage of our revenues for the periods indicated.
Year-Ended December 31,
2020
2019
2021
Revenues:
Accommodation reservation
Transportation ticketing
Packaged tours
Corporate travel
Others
Total revenues
38%
39%
13%
4%
6%
100%
39%
39%
7%
5%
10%
100%
41%
34%
6%
7%
12%
100%
Under most circumstances, we do not take ownership of the products and services being sold and act as an agent in substantially all of our
transactions. Our risk of loss due to obligations for canceled hotel and airline ticket reservations is thus relatively remote. Accordingly, we recognize
revenues primarily based on commissions earned rather than transaction value.
Since current PRC laws and regulations impose substantial restrictions on foreign ownership of travel agency and value-added
telecommunications businesses in China, we conduct part of our transportation ticketing and packaged-tour businesses through our consolidated
affiliated Chinese entities. Historically, we generated a portion of our revenues from fees charged to these entities. See “Item 7. Major Shareholders and
Related Party Transactions — B. Related Party Transactions — Arrangements with Consolidated Affiliated Chinese Entities” for a description of our
relationship with these entities.
Accommodation Reservation. Accommodation reservation revenue constitutes a significant source of our revenues. In 2019, 2020 and 2021,
revenues from our accommodation reservation business accounted for RMB13.5 billion, RMB7.1 billion and RMB8.1 billion (US$1.3 billion),
representing 38%, 39% and 41% of our total revenues, respectively.
We generate substantially all of our accommodation reservation revenue through commissions from hotel reservation partners through our
platform. We recognize revenues when the reservation becomes non-cancellable, which is the point considered when we complete our performance
obligation in accommodation reservation services. Contracts with certain hotel reservation partners contain incentive commissions that are typically
subject to specific performance targets. We generally receive incentive commissions from hotels through monthly arrangements based on performance
targets of accommodation reservations where our users have completed their stay.
Transportation Ticketing. In 2019, 2020 and 2021, revenues from our transportation ticketing business accounted for RMB14.0 billion,
RMB7.1 billion and RMB6.9 billion (US$1.1 billion), representing 39%, 39% and 34% of our total revenues, respectively.
We operate our transportation ticketing business primarily through our wholly-owned subsidiaries, consolidated affiliated Chinese entities, and a
network of ecosystem partners. Commissions from transportation ticketing rendered are recognized after tickets are issued as this is when our
performance obligation is satisfied.
Packaged tours. In 2019, 2020 and 2021, our packaged-tour revenue was RMB4.5 billion, RMB1.2 billion and RMB1.1 billion (US$173 million),
respectively. We bundle the packaged-tour products and services and receive referral fees from ecosystem partners for packaged-tour products and
services through our platform. Referral fees are recognized on the departure date of the packaged tours as this is when our performance obligation is
satisfied.
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Corporate Travel. Our corporate travel revenue primarily includes commissions from transportation ticket booking, accommodation reservation,
and packaged-tour services rendered to corporate clients. In 2019, 2020 and 2021, revenues from our corporate travel services accounted for
RMB1.3 billion, RMB877 million and RMB1.3 billion (US$211 million), respectively. We contract with corporate clients based on a service fee model.
Travel reservations are made via online and offline services for transportation ticket booking, accommodation reservation, and packaged-tour services.
Corporate travel revenue is recognized on a net basis after the services are rendered and collections are reasonably assured.
Other Businesses. Our other businesses primarily consist of online advertising services and financial services. In 2019, 2020 and 2021, revenues
from other business accounted for RMB2.5 billion, RMB1.9 billion and RMB2.5 billion (US$396 million), respectively. Advertising revenues are
recognized ratably over the fixed term of the agreement as services are provided. The financial service revenues mainly represent the platform service
fees from third-party financial institutions that are recognized ratably over the service period as well as the interest income from the receivables due
from the users that are recognized over the credit period.
Cost of Revenues
Cost of revenues primarily consists of payroll compensation of customer service center personnel, credit card service fees, payments to ecosystem
partners, telecommunication expenses, direct cost of principal travel tour services, depreciation, rentals, direct cost of financial service and related
expenses incurred by our platform that are directly attributable to the rendering of our travel-related services and other businesses.
Cost of revenues as a percentage of our net revenues was 21%, 22% and 23% in 2019, 2020 and 2021, respectively. We believe our relatively low
ratio of cost of revenues to revenues is primarily due to competitive labor costs in China, high efficiency of our customer service system and efficiency
of our enhanced website operations.
Operating Expenses
Operating expenses consist primarily of product development expenses, sales and marketing expenses and general and administrative expenses, all
of which include share-based compensation expense. In 2021, we recorded RMB1.7 billion (US$264 million) of share-based compensation expense,
compared to RMB1.9 billion in 2020 and RMB1.7 billion for 2019. Share-based compensation expense is included in the same income statement
category as the cash compensation paid to the recipient of the share-based award.
Product development expenses primarily include expenses that we incur to develop our ecosystem partner network and expenses that we incur to
maintain, monitor, and manage our platform. Product development expenses as a percentage of our net revenues was 30%, 42% and 45% in 2019, 2020
and 2021, respectively.
Sales and marketing expenses primarily include payroll compensation and benefits for our sales and marketing personnel, advertising expenses,
and other related marketing and promotion expenses. Sales and marketing expenses as a percentage of our net revenues was 26%, 24% and 25% in
2019, 2020 and 2021, respectively.
General and administrative expenses primarily include payroll compensation, benefits and travel expenses for our administrative staff, credit
losses, professional service fees, and administrative office expenses. General and administrative expenses as a percentage of our net revenues was 9%,
20% and 15% in 2019, 2020 and 2021, respectively.
Taxation
Our effective income tax rate was 19%, -29% and -57% for 2019, 2020 and 2021, respectively. The change in our effective income tax rate from
2020 to 2021 was mainly due to the non-taxable fair value changes in equity securities investments and exchangeable senior notes, as well as the change
in valuation allowance provided to deferred tax assets. The change in our effective income tax rate from 2019 to 2020 was mainly due to valuation
allowances provided against the deferred tax assets associated with the accumulated loss, the non-deductible share-based compensation expenses, the
fair value changes in equity securities investments and exchangeable senior notes, as well as non-taxable gain on deconsolidation of a subsidiary.
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We are subject to various rates of income tax under different jurisdictions. The following summarizes major factors affecting our applicable tax
rates in the Cayman Islands, Hong Kong, and China.
Cayman Islands
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. In
addition, the Cayman Islands does not impose withholding tax on dividend payments.
Hong Kong
On March 21, 2018, the Hong Kong Legislative Council passed The Inland Revenue (Amendment) (No. 7) Bill 2017, which introduces the
two-tiered profits tax rates regime. The bill was signed into law on March 28, 2018 and was gazetted on the following day. Under the two-tiered profits
tax rates regime, the first HK$2 million of profits of the qualifying group entity will be taxed at 8.25%, and profits above HK$2 million will be taxed at
16.5%. The profits of group entities not qualifying for the two-tiered profits tax rates regime will continue to be taxed at a flat rate of 16.5%.
Accordingly, the Hong Kong profits tax of the qualifying group entity is calculated at 8.25% on the first HK$2 million of the estimated assessable
profits and at 16.5% on the estimated assessable profits above HK$2 million.
China
Pursuant to the PRC Enterprise Income Tax Law, companies established in China are generally subject to enterprise income tax at a statutory rate
of 25%. The 25% rate applies to most of our subsidiaries and consolidated affiliated Chinese entities established in China. Some of our PRC subsidiaries
and consolidated affiliated Chinese entities, Ctrip Computer Technology, Ctrip Travel Information, Ctrip Travel Network, Qunar Software, Qunar
Beijing, Beijing Hujinxinrong, Ctrip Business Travel, Shanghai Xielv Information, Chengdu Ctrip, Chengdu Ctrip International, and Chengdu
Information benefit from a preferential tax rate of 15% by either qualifying as HNTEs or qualifying under the Western Regions Catalog under the PRC
Enterprise Income Tax Law as follows:
•
In 2020, Ctrip Computer Technology, Ctrip Travel Information, and Ctrip Travel Network reapplied for their qualification as HNTE, which
were approved by the relevant government authority. Thus, these subsidiaries are entitled to a preferential income tax rate of 15% from
2020 to 2022 as long as they maintained their qualifications for HNTEs that are subject to verification by competent authorities and
renewals every three years. In 2021, Qunar Software and Qunar Beijing have renewed their HNTE certificates and are continued with a
preferential income tax rate of 15% from 2021 to 2023. Beijing Hujinxinrong is also a HNTE entitled to a preferential income tax rate of
15% from 2019 to 2021 and is applying for renewal of its qualification. In addition, Ctrip Business Travel and Shanghai Xielv Information
were designated by relevant local authorities in Shanghai as HNTEs for the first time in 2021 and are entitled to a preferential income tax
rate of 15% till 2023.
•
In 2001, the STA started to implement preferential tax policy in China’s western regions, and companies located in applicable jurisdictions
covered by the Western Regions Catalog are eligible to apply for a preferential income tax rate of 15% if their businesses fall within the
“encouraged” category of the policy. On April 23, 2020, the Ministry of Finance, the STA, and the NDRC jointly issued the
Announcement on Renewing the Enterprise Income Tax Policy for Western Development, which reduced the revenue percentage
requirement of the “encouraged” businesses to no less than 60% and would be applied from 2021 to 2030. Chengdu Ctrip, Chengdu Ctrip
International, and Chengdu Information are entitled to enjoy a preferential tax rate of 15% until 2030, provided that their “encouraged”
businesses account for no less than required percentage pursuant to current policies.
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In 2019, 2020 and 2021, our subsidiaries received financial subsidies from the government authorities globally in the amount of approximately
RMB589 million, RMB601 million and RMB550 million (US$86 million), respectively, which we recorded as other income upon cash receipt. Such
financial subsidies were granted to us at the sole discretion of the government authorities. We cannot assure you that our subsidiaries will continue to
receive financial subsidies in the future.
Pursuant to the China’s VAT reform, from April 1, 2019 to December 31, 2022, general tax payers engaged in certain industries, including the
travel and entertainment industry, are allowed to claim an additional 10% or 15% super-credit on their input VAT (with the 15% rate applicable from
October 1, 2019). This super-credit amount can be deducted from VAT payable, and any remaining amount can be transferred to the next filing period
for credit.
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% may be imposed on dividends that non-PRC resident enterprise holders of our ordinary shares or ADSs receive from us and on
gains realized on their sale or other disposition of ordinary shares or ADSs, if such income is considered income derived from within China. See “Item
3. Key Information— D. Risk Factors—Risks Relating to Our Corporate Structure—Our PRC subsidiaries are subject to restrictions on paying
dividends or making other payments to us while our consolidated affiliated Chinese entities can only make payments to us in accordance with the
contractual arrangements, which may restrict our ability to satisfy our liquidity requirements.”
Critical Accounting Policies and Estimates
We prepare financial statements in conformity with U.S. GAAP, which requires us to make estimates and assumptions that affect the reported
amounts of assets and liabilities, disclosures of contingent assets and liabilities on the date of the balance sheet and the reported amounts of revenues
and expenses during the financial reporting period. We continually evaluate these estimates and assumptions based on the most recently available
information, our own historical experiences and various other assumptions that are believed to be reasonable under the circumstances, which together
form the basis for making judgments about the carrying values of assets and liabilities that are not readily apparent from other sources. Since the use of
estimates is an integral component of the financial reporting process, actual results could differ from those estimates. Some of our accounting policies
require higher degrees of judgment than others in their application. We consider the policies discussed below to be critical to an understanding of our
financial statements as their application places the most significant demands on management’s judgment.
Revenue Recognition. We recognize revenues in accordance with ASC 606, “Revenue from Contracts with Customers” (“ASC 606”). Under
which, our revenues are substantially reported on a net basis as the travel supplier is primarily responsible for providing the underlying travel services
and we do not control the service provided by the travel supplier to the traveler. Revenues are recognized at gross amounts for merchant business where
we undertake substantive inventory risks by pre-purchasing inventories. Revenue from accommodation reservation services, transportation ticketing
services, packaged tours, and corporate travel are substantially recognized at a point of time when the performance obligations are satisfied. Revenue
from other businesses comprise primarily of online advertising services and financial services, which are recognized ratably over time.
Business Combination. We apply ASC 805 “Business Combination,” which requires that all business combinations not involving entities or
business under common control be accounted for under the acquisition method. The cost of an acquisition is measured as the aggregate of fair values at
the date of exchange of assets given, liabilities incurred and equity instruments issued. The costs directly attributable to the acquisition are expensed as
incurred. Identifiable assets, liabilities and contingent liabilities acquired or assumed are measured separately at their fair value as of the acquisition
date, irrespective of the extent of any non-controlling interests. The excess of (i) the total of cost of acquisition, fair value of non-controlling interests
and acquisition date fair value of any previously held equity interest in an acquiree over (ii) the fair value of identifiable net assets of an acquiree is
recorded as goodwill. If the cost of acquisition is less than the fair value of the net assets of a subsidiary acquired, the difference is recognized directly in
the consolidated statements of comprehensive income.
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The determination and allocation of fair values to the identifiable assets acquired and liabilities assumed is based on various assumptions and
valuation methodologies requiring considerable management judgment. The most significant variables in these valuations are discount rates, terminal
values, growth rates, the number of years on which to base the cash flow projections, as well as the assumptions and estimates used to determine the
cash inflows and outflows.
Fair Value of Available-for-sale Debt Investments. We had available-for-sale debt investments as set out in Note 8 to our audited consolidated
financial statements included in elsewhere in this annual report. We report available-for-sale debt investments at fair value at each balance sheet date
with the aggregate unrealized gains and losses, net of tax, reflected in “Accumulated other comprehensive loss” in the consolidated balance sheets.
Management determined the fair value of these Level 3 investments based on income approach using various unobservable inputs. Valuation
techniques are certified by an independent and recognized international business valuer before being implemented for valuation and are calibrated to
ensure that outputs reflect market conditions. Valuation models established by the valuer make the maximum use of market inputs and rely as little as
possible on our own specific data. However, it should be noted that some inputs, such as revenue growth rate and lack of marketability discounts, require
management estimates. Management estimates and assumptions are reviewed periodically and are adjusted if necessary. Should any of the estimates and
assumptions changed significantly, it may lead to a material change in the fair value of available-for-sale debt investments. The fair values of the
available-for-sale debt investments are set out in Note 7 to the audited consolidated financial statements included elsewhere in this annual report.
In relation to the valuation of the available-for-sale debt investments, our directors, based on the professional advice received, adopted the
following procedures: (i) obtained and reviewed the capability statements and credentials provided by Avista and Duff&Phelps. Based on which, we
believe that both Avista and Duff&Phelps have significant experience and adequate expertise in valuation services and are therefore qualified to perform
our roles; (ii) provided the independent valuers with necessary financial and non-financial information as required so as to enable the valuers to perform
the pertinent valuation assessment. For the forecast of operation results and cash flow performances, we take a prudently reasonable approach as to
determine the significant estimates, including the revenue growth rate, and makes necessary adjustments on periodical basis to reflect the actual
development of the underlying business; (iii) keep frequent discussion with valuers and review their valuation work papers and reports. During which,
we carefully understand and evaluate the appropriateness and reasonableness of the overall valuation methodologies, computation basis, significant
assumptions and estimates therein, including weighted average cost of capital, lack of marketability discounts, expected volatilities and probabilities in
equity allocation; and (iv) review the results of the fair value assessments to understand the reasonableness of the changes of the fair values of the
investments. Based on the above procedures, our directors are of the view that the valuation analysis performed by the valuer is fair and reasonable, and
the financial statements of our group are properly prepared.
Details of the fair value measurement of available-for-sale debt investments, particularly the fair value hierarchy, the valuation techniques and key
inputs, including significant unobservable inputs, the relationship of unobservable inputs to fair value are disclosed in Note 8 of the audited consolidated
financial statements included elsewhere in this annual report.
Investment. Our investments include equity method investments, equity securities without readily determinable fair values, equity securities with
readily determinable fair values, held to maturity debt securities, and available-for-sale debt securities. We apply equity method in accounting for the
investments in entities in which we have the ability to exercise significant influence but do not have control and the investments are in either common
stock or in-substance common stock. Unrealized gains on transactions between an affiliated entity and us are eliminated to the extent of our interest in
the affiliated entity; unrealized losses are also eliminated unless the transaction provides evidence of an impairment of the asset transferred. Equity
securities without readily determinable fair values are measured and recorded using a measurement alternative that measures the securities at cost minus
impairment, if any, plus or minus changes resulting from qualifying observable price changes. Equity securities with readily determinable fair values are
measured and recorded at fair value on a recurring basis with changes in fair value, whether realized or unrealized, recorded through the income
statement. Debt securities that we have positive intent and ability to hold to maturity are classified as held-to-maturity debt securities and are stated at
amortized cost.
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We have classified our investments in debt securities, other than the held to maturity debt securities, as available-for-sale securities.
Available-for-sale debt securities are reported at estimated fair value with the aggregate unrealized gains and losses, net of tax, reflected in
“Accumulated other comprehensive loss” in the consolidated balance sheets. If the amortized cost basis of an available-for-sale security exceeds its fair
value and if we have the intention to sell the security or it is more likely than not that our will be required to sell the security before recovery of the
amortized cost basis, an impairment is recognized in the consolidated statements of operations. If we do not have the intention to sell the security and it
is not more likely than not that we will be required to sell the security before recovery of the amortized cost basis and we determines that the decline in
fair value below the amortized cost basis of an available-for-sale security is entirely or partially due to credit-related factors, the credit loss is measured
and recognized as an allowance for credit losses along with the operating expense in the consolidated statements of operations. The allowance is
measured as the amount by which the debt security’s amortized cost basis exceeds our best estimate of the present value of cash flows expected to be
collected.
We monitor our investments for other-than-temporary impairment by considering factors including, but not limited to, current economic and
market conditions, the operating performance of the companies including current earnings trends and other company-specific information. When
indicators of impairment exist, we also prepare quantitative measurements of the fair value of our investments using income or market approach, which
requires the use of unobservable inputs, such as revenue growth rate, weighted average cost of capital, selection of comparable companies and multiples,
expected volatility, discount for lack of marketability and probability of exit events as it relates to liquidation and redemption preferences when
applicable. The fair value information is sensitive to changes in the unobservable inputs used to determine fair value and such changes could result in
the fair value at the reporting date to be different from the fair value presented.
Goodwill, Intangible Assets and Long-Lived Assets. Goodwill represents the excess of the purchase price over the fair value of the identifiable
assets and liabilities acquired as a result of our acquisitions of interests in its subsidiaries and consolidated affiliated Chinese entities. Goodwill is not
amortized but is reviewed at least annually for impairment or earlier, if an indication of impairment exists. We first assess qualitative factors to
determine whether it is necessary to perform the quantitative goodwill impairment test, by taking into consideration of macroeconomics, overall
financial performance, industry and market conditions and the share price of our company. If determined to be necessary, the quantitative impairment
test shall be used to identify goodwill impairment. Based on the qualitative assessment, if it is more likely than not that the fair value of a reporting unit
is less than the carrying amount, the quantitative impairment test is performed. For the quantitative assessment of goodwill impairment, we compare the
fair value of the unit to its carrying amount, including goodwill. If the fair value of the reporting unit exceeds its carrying amount, goodwill is not
considered to be impaired. If the carrying amount of a reporting unit exceeds its fair value, the amount by which the carrying amount exceeds the
reporting unit’s fair value is recognized as impairment. Judgment in estimating the fair value of reporting units includes estimating future cash flows,
determining appropriate discount rates and making other assumptions. Changes in these estimates and assumptions could materially affect the
determination of fair value for each reporting unit. We evaluate if goodwill impairment may be indicated on quarterly basis and performs the annual
goodwill impairment test as of December 31. As of December 31, 2021, we qualitatively assessed relevant events and circumstances, including
macroeconomics conditions, industry and market considerations, our overall financial performance and the share price, and concluded by weighing all
these factors in their entirety that it was not more likely than not the fair value of our single reporting unit was lower than its carrying value. There was
no impairment of goodwill during the years ended December 31, 2019, 2020 and 2021. Separately identifiable intangible assets that have determinable
lives continue to be amortized and consist primarily of non-compete agreements, customer list, supplier relationship, technology, business relationship
and payment business license. We amortize intangible assets on a straight-line basis over their estimated useful lives, which is 3 to 15 years. The
estimated life of amortized intangibles is reassessed if circumstances occur that indicate the life has changed. Other intangible assets that have indefinite
useful life primarily include trademark and domain names. We evaluate indefinite-lived intangible assets each reporting period to determine whether
events and circumstances continue to support an indefinite useful life. If an intangible asset that is not being amortized is subsequently determined to
have a finite useful life, the asset is tested for impairment. Judgment in estimating the fair value of these intangible assets includes estimating future cash
flows, determining appropriate discount rates and making other assumptions. Changes in these estimates and assumptions could materially affect the
determination of fair value for each asset group. Long-lived assets (including intangible with definite lives) are reviewed for impairment whenever
events or changes in circumstances indicate that the carrying amount of an asset may not be recoverable. Reviews are performed to determine whether
the carrying value of asset group is impaired, based on comparison to undiscounted expected future cash flows. If this comparison indicates that there is
impairment, we recognize impairment of long-lived assets to the extent the carrying amount of such assets exceeds the fair value. In 2019, 2020 and
2021, we did not recognize any impairment charges for goodwill, intangible assets or long-lived assets. If different judgments or estimates had been
utilized, however, material differences could have resulted in the amount and timing of the impairment charge.
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Share-Based Compensation. We follow ASC 718 “Stock Compensation to account for the share-based payments. We recognize share-based
compensation net of an estimated forfeiture rate and therefore only recognize compensation cost for those shares expected to vest over the service period
of the award. We applied the Black-Scholes valuation model in determining the fair value of options granted. Risk-free interest rates are based on US
Treasury yield for the terms consistent with the expected life of award at the time of grant. Expected life is based on historical exercise patterns.
Expected dividend yield is determined in view of our historical dividend payout rate and future business plan. We estimate expected volatility at the date
of grant based on historical volatilities. We recognize compensation expense on all share-based awards on a straight-line basis over the requisite service
period. Forfeiture rate is estimated based on historical forfeiture patterns and adjusted to reflect future change in circumstances and facts, if any. If actual
forfeitures differ from those estimates, we may need to revise those estimates used in subsequent periods. If the fair value of the underlying equity and
any of the assumptions used in the Black-Scholes model changes significantly, share-based compensation expense for future awards may differ
materially compared with the awards granted previously.
We calculate incremental compensation cost of a modification as the excess of the fair value of the modified option over the fair value of the
original option immediately before its terms are modified, measured based on the share price and other pertinent factors at the modification date. For
vested options, we would recognize incremental compensation cost in the period the modification occurs and for unvested options, we would recognize,
over the remaining requisite service period, the sum of the incremental compensation cost and the remaining unrecognized compensation cost for the
original award on the modification date.
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Deferred Tax Valuation Allowances. We provide a valuation allowance on our deferred tax assets to the extent we consider it to be more likely
than not that we will be unable to realize all or part of such assets. In assessing the realizability of deferred tax assets, we generally consider cumulative
pre-tax losses for recent years to be a significant negative indicator regarding future profitability. We also consider the strength and trend of earnings, as
well as other relevant factors. Our future realization of our deferred tax assets also depends on certain other factors, including our ability to generate
taxable income within the period during which temporary differences reverse or before our tax loss carry-forwards expire and the outlook for the
economy and our industry. We consider these factors at each balance sheet date and determine whether valuation allowances are necessary. Changes in
these factors and assumptions could materially affect the valuation allowance on our deferred tax assets. As of December 31, 2019, 2020 and 2021, we
recorded deferred tax assets, net of valuation allowances, of RMB976 million, RMB1.4 billion and RMB1.7 billion (US$265 million), respectively. If,
however, unexpected events occur in the future that would prevent us from realizing all or a portion of our net deferred tax assets, an adjustment would
result in a charge to income in the period in which such determination was made. As of December 31, 2019, 2020 and 2021, a valuation allowance of
RMB482 million, RMB589 million and RMB892 million, respectively, was provided primarily for net operating losses where it is more likely than not
that the deferred tax assets resulting from such losses of certain subsidiaries will not be realized. Hence, we recorded valuation allowance against our
gross deferred tax assets in order to reduce the deferred tax assets to the amount that is more likely than not to be realized.
Allowance for Expected Credit Losses. On January 1, 2020, we adopted the accounting standards update on the measurement of credit losses,
which requires us to estimate lifetime expected credit losses upon recognition of the financial assets. We adopted the accounting standards update using
a modified retrospective approach. Upon adoption of the new standard on January 1, 2020, we recorded a net decrease to our retained earnings of
RMB83 million, net of tax.
Our accounts receivable, prepayments and other current assets (including the receivables of financial services), due from related parties, long-term
deposits and prepayments and long-term receivables due from related parties are within the scope of ASC Topic 326. We have identified the relevant
risk characteristics of our customers and the related receivables and prepayments, which include size, type of the reservation services we provide or
geographic location of the customer, or a combination of these characteristics. Receivables with similar risk characteristics have been grouped into
pools. For each pool, we consider the historical credit loss experience, current economic conditions, supportable forecasts of future economic conditions,
and any recoveries in assessing the lifetime expected credit losses. Other key factors that influence the expected credit loss analysis include customer
demographics, payment terms offered in the normal course of business to customers, and industry-specific factors that could impact our receivables.
Additionally, external data and macroeconomic factors are also considered. This is assessed at each quarter based on our specific facts and
circumstances.
In 2020, we facilitated and processed significant volume of the reservation cancelation requests from the end users due to the COVID-19
pandemic which resulted in the significant increase of the accounts receivables due from the customers (i.e. the travel suppliers) as a result of the
refunds we paid the end users on behalf of our customers and will collect from our customers. Given the business disruptions and financial challenges
faced by our customers as driven by the COVID-19 pandemic, we have further analyzed the credit risks of our customers with the considerations
including the recent credit losses, repayment pattern and business conditions and has increased our allowance for expected credit losses on receivables
from and prepayments to our customers. Such analysis was performed based on individual customer’s level or a group of customers’ level depends on
the amount and extent of overdue as well as the risk characteristics of the different customers.
Significant judgments and assumptions are required to estimate the allowance for expected credit losses on receivables from and prepayments to
customers and such assumptions may change in future periods, particularly the assumptions related to the impact of the COVID-19 pandemic on the
business prospects and financial condition of customers and our ability to collect the receivable or recover the prepayment. As of December 31, 2019,
2020 and 2021, the allowance for expected credit losses was RMB256 million, RMB799 million and RMB815 million (US$128 million), respectively.
Comparing to 2019, the increase of allowance for expected credit losses in 2020 and 2021 was primarily attributable to the increased receivables mainly
due to the refunds for reservation cancelations that we paid on behalf our ecosystem partners that are subject to the increased credit risks as a result of
the COVID-19 pandemic.
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Results of Operations
The following table sets forth a summary of our consolidated statements of operations for the periods indicated both in amount and as a
percentage of net revenues.
For the Year Ended December 31,
2019
RMB
%
2020
RMB
%
(in millions)
2021
RMB
US$
%
Revenues:
Accommodation reservation
Transportation ticketing
Packaged tours
Corporate travel
Others
Total revenues
Less: Sales tax and surcharges
Net revenues
Cost of revenues
Gross profit
Operating expenses:
Product development(1)
Sales and marketing(1)
General and administrative(1)
Total operating expenses
Income/(loss) from operations
Interest income
Interest expense
Other income/(expense)
Income/(loss) before income tax expense and equity in income/(loss) of affiliates
Income tax expense
Equity in (loss)/income of affiliates
Net income/(loss)
Net loss attributable to non-controlling interests
Accretion to redemption value of redeemable non-controlling interests
Net income/(loss) attributable to Trip.com Group Limited
Note:
(1)
Share-based compensation was included in the associated operating expense categories as follows:
Product development
Sales and marketing
General and administrative
13,514 38 7,132 39 8,148 1,279 41
13,952 39 7,146 39 6,905 1,084 34
7 1,105
6
4,534 13 1,241
173
5 1,347
4
7
877
1,255
211
2,461
396 12
6 1,931 10 2,524
35,716 100 18,327 100 20,029 3,143 100
(0)
35,666 100 18,316 100 20,023 3,142 100
(721) (23)
(7,372) (21) (4,031) (22) (4,598)
28,294 79 14,285 78 15,425 2,421 77
(50)
(11)
(0)
(0)
(6)
(1)
(10,670) (30) (7,667) (42) (8,992) (1,411) (45)
(772) (25)
(9,295) (26) (4,405) (24) (4,922)
(3,289)
(459) (14)
(9) (3,636) (20) (2,922)
(23,254) (65) (15,708) (86) (16,836) (2,642) (84)
(8) (1,411)
(221)
5,040 14 (1,423)
(7)
6 2,187 12 2,132
335 11
2,094
(9) (1,565)
(5) (1,716)
(8)
(246)
(1,677)
2
58
373
(1)
3,630 10
(273)
(2)
(74)
(471)
(6)
9,087 25 (1,225)
(1)
(42)
(270)
(2)
(5)
(1,742)
(355)
0
15
96
(9)
(1) (1,689)
(347)
(3)
(101)
(645)
6,998 19 (3,269) (17)
95
0
0
15
— — —
(0)
(3)
7,011 19 (3,247) (17)
57
(44)
62
(40)
0
(0)
(550)
(86)
For the Year Ended December 31,
2019
2020
%
RMB
RMB
RMB
%
(in millions)
(919) (3) (964) (5) (802) (126) (4)
(144) (0) (159) (1) (149) (23) (1)
(651) (2) (750) (4) (730) (115) (4)
%
2021
US$
Any discrepancies in the above table between the amounts or percentages identified as total amounts or percentages and the sum of the amounts or
percentages listed therein are due to rounding.
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2021 compared to 2020
Revenues
Total revenues increased by 9% to RMB20.0 billion (US$3.1 billion) in 2021 from RMB18.3 billion in 2020, primarily due to the general
containment of the COVID-19 pandemic in China, partially offset by the re-emergence of COVID-19 infection in certain regions in China in January,
February and the second half of 2021.
Accommodation Reservation. Accommodation reservation revenue increased by 14% to RMB8.1 billion (US$1.3 billion) in 2021 from
RMB7.1 billion in 2020. This was in line with the 25% increase in accommodation reservation GMV which was primarily due to the recovery of
China’s domestic market and people’s increased demand for inter-provincial travel and intra-provincial staycation, especially during the first half of
2021.
Transportation Ticketing. Transportation ticketing revenue decreased by 3% to RMB6.9 billion (US$1.1 billion) in 2021 from RMB7.1 billion in
2020. Transportation GMV increased by 22% in 2021 as a result of the recovery of China’s domestic market. The discrepancy was primarily due to the
abnormally high take rate in 2020 as a result of lower domestic air ticket prices during the pandemic. The take rate level has generally returned to
normal in 2021.
Packaged tours. Packaged tours revenues decreased by 11% to RMB1.1 billion (US$173 million) in 2021 from RMB1.2 billion in 2020, primarily
due to the relatively slow recovery of group travel in response to the COVID-19 pandemic.
Corporate Travel. Corporate travel revenues increased by 54% to RMB1.3 billion (US$211 million) in 2021 from RMB877 million in 2020,
primarily driven by expansion in corporate customer base and an optimized product mix beginning from the third quarter of 2021.
Others. Other revenues increased by 31% to RMB2.5 billion (US$396 million) in 2021 from RMB1.9 billion in 2020, primarily due to the strong
growth of our financial services and advertisement services.
Cost of Revenues
Cost of revenues increased by 14% to RMB4.6 billion (US$721 million) in 2021 from RMB4.0 billion in 2020, generally in line with the revenues
increase in the same year, primarily due to an increase in credit card service fee and customer service related expenses.
Operating Expenses
Operating expenses include product development expenses, sales and marketing expenses, and general and administrative expenses.
Product Development. Product development expenses increased by 17% to RMB9.0 billion (US$1.4 billion) in 2021 from RMB7.7 billion in
2020, primarily due to an increase in product development personnel related expenses.
Sales and Marketing. Sales and marketing expenses increased by 12% to RMB4.9 billion (US$772 million) in 2021 from RMB4.4 billion in 2020,
primarily due to an increase in sales and marketing related activities.
General and Administrative. General and administrative expenses decreased by 20% to RMB2.9 billion (US$459 million) in 2021 from
RMB3.6 billion in 2020, primarily due to a decrease in allowance for credit losses booked for our travel suppliers reflecting the change in credit risk
with travel industry recovery.
Interest Income
Interest income decreased by 3% to RMB2.1 billion (US$335 million) in 2021 from RMB2.2 billion in 2020, primarily due to a decrease in long-
term held to maturity deposits in 2021.
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Interest Expense
Interest expense decreased by 9% to RMB1.6 billion (US$246 million) in 2021 from RMB1.7 billion in 2020, primarily due to fluctuation in the
principal amount of both short-term and long-term debt in 2021.
Other (Expense)/ Income
Other income was RMB373 million (US$58 million) in 2021, compared to other expense of RMB273 million in 2020. Other income in 2021
primarily consists of the RMB550 million (US$86 million) subsidy income, partially offset by the RMB170 million (US$27 million) fair value loss of
equity securities investments and exchangeable senior notes. Other expense in 2020 primarily consisted of the RMB612 million fair value loss of equity
securities investments and exchangeable senior notes, the RMB602 million loss on disposal of long-term investments and the RMB905 million
impairments of long-term investments in 2020, partially offset by the RMB 1.1 billion gain on deconsolidation of subsidiaries.
Income Tax Expense
Income tax expense decreased to RMB270 million (US$42 million) in 2021 from RMB355 million in 2020. Our effective income tax rate in 2021
was -57%, as compared to -29% in 2020. The change in our effective income tax rate from 2020 to 2021 was primarily due to combined impacts of
change in respective profitability of our subsidiaries with different tax rates and certain non-taxable income or loss resulting from the fair value changes
in equity securities investments and exchangeable senior notes.
Equity in (Loss)/Income of Affiliates
Equity in income of affiliates was RMB96 million (US$15 million) in 2021, compared to equity in loss of affiliates of RMB1.7 billion in 2020.
This was primarily due to the loss incurred from our equity method investments in 2020, mainly in MakeMyTrip, whose operating results were
significantly impacted by the COVID-19 pandemic in 2020.
2020 compared to 2019
Revenues
Total revenues decreased by 49% to RMB18.3 billion in 2020 from RMB35.7 billion in 2019, primarily due to the negative impact from the
COVID-19 pandemic in China and globally.
Accommodation Reservation. Accommodation reservation revenue decreased by 47% to RMB7.1 billion in 2020 from RMB13.5 billion in 2019,
primarily due to the decrease in the accommodation reservation GMV facilitated by our platform in 2020 by 47% as a result of the reduction in the
traveling demand of our Chinese and international users due to the COVID-19 pandemic in China and globally.
Transportation Ticketing. Transportation ticketing revenue decreased by 49% to RMB7.1 billion in 2020 from RMB14.0 billion in 2019, primarily
due to the decrease in the transportation ticketing GMV facilitated by our platform in 2020 by 57% as a result of the reduction in the traveling demand
of our Chinese and international users due to the COVID-19 pandemic in China and globally.
Packaged tours. Packaged tours revenues decreased by 73% to RMB1.2 billion in 2020 from RMB4.5 billion in 2019, primarily due to the cross-
region travel restrictions in China and global in response to the COVID-19 pandemic.
Corporate Travel. Corporate travel revenues decreased by 30% to RMB877 million in 2020 from RMB1.3 billion in 2019, primarily due to the
decrease in the travel demand for our corporate clients as a result of the COVID-19 pandemic.
Others. Other revenues decreased by 22% to RMB1.9 billion in 2020 from RMB2.5 billion in 2019, primarily due to the decrease in the
advertising revenue primarily due to weakness in online advertising demand as our advertising clients, including our ecosystem partners, were
negatively impacted by the COVID-19 pandemic.
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Cost of Revenues
Cost of revenues decreased by 45% to RMB4.0 billion in 2020 from RMB7.4 billion in 2019, which was in line with the revenue decrease in the
same year.
Operating Expenses
Operating expenses include product development expenses, sales and marketing expenses, and general and administrative expenses.
Product Development. Product development expenses decreased by 28% to RMB7.7 billion in 2020 from RMB10.7 billion in 2019, primarily due
to a decrease in product development personnel related expenses.
Sales and Marketing. Sales and marketing expenses decreased by 53% to RMB4.4 billion in 2020 from RMB9.3 billion in 2019, primarily due to
a decrease in sales and marketing related activities during the COVID-19 pandemic.
General and Administrative. General and administrative expenses increased by 11% to RMB3.6 billion in 2020 from RMB3.3 billion in 2019,
primarily due to credit losses for the increased receivables mainly attributable to the refunds for reservation cancelations that we paid on behalf of our
ecosystem partners that are subject to the increased credit risk as a result of the COVID-19 pandemic.
Interest Income
Interest income increased by 4% to RMB2.2 billion in 2020 from RMB2.1 billion in 2019, primarily due to an increase in short-term investments,
held to maturity deposits and financial products in 2020.
Interest Expense
Interest expense increased by 2% to RMB1.7 billion in 2020 from RMB1.7 billion in 2019, primarily due to fluctuation in the principal amount of
both short-term and long-term debt in 2020.
Other Income/(Expense)
Other expense was RMB273 million in 2020, compared to other income of RMB3.6 billion in 2019, primarily due to the RMB612 million fair
value loss of equity securities investments and exchangeable senior notes for the year ended December 31, 2020 and the RMB2.3 billion fair value gain
of equity securities investments for the year ended December 31, 2019.
Income Tax Expense
Income tax expense decreased significantly to RMB355 million in 2020 from RMB1.7 billion in 2019, primarily due to a decrease in our taxable
income.
Equity in Loss of Affiliates
Equity in loss of affiliates increased significantly to RMB1.7 billion in 2020 from RMB347 million in 2019, primarily due to the losses incurred
from our equity method investments, mainly in MakeMyTrip, whose operating results were significantly impacted by the COVID-19 pandemic.
Inflation
Inflation in China has not materially impacted our results of operations. According to NBS, the year-over-year percent changes in the consumer
price index for December 2019, 2020 and 2021 were increases of 4.5%, 0.2% and 1.2%, respectively. Inflation in recent years has been associated with
food and other consumption items and minimum wages in China. Consumption items do not represent major direct cost items for our business. While
personnel costs represent a material part of our total operating costs and expenses, inflation in minimum wages in China primarily affects certain
categories of our non-managerial staff costs while increases in total personnel costs of our business remain manageable. Although we have not been
materially affected by inflation in the past, we can provide no assurance that we will not be affected in the future by higher rates of inflation in China.
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B. Liquidity and Capital Resources
Liquidity
The following table sets forth the summary of our cash flows for the periods indicated:
Net cash provided by/(used in) operating activities
Net cash used in investing activities
Net cash (used in)/provided by financing activities
Effect of foreign exchange rate changes on cash and cash equivalents, restricted cash
Net (decrease)/increase in cash and cash equivalents, restricted cash
Cash and cash equivalents, restricted cash, beginning of year
Cash and cash equivalents, restricted cash, end of year
For the Year Ended December 31,
2019
RMB
2020
RMB
2021
RMB
US$
(in millions)
7,333 (3,823) 2,475 388
(2,413) (3,821) (4,148) (651)
(9,256) 6,025 3,919 615
(73)
(713)
(4,027) (2,332) 1,781 279
25,774 21,747 19,415 3,047
21,747 19,415 21,196 3,326
(465)
309
Net cash provided by operating activities amounted to RMB2.5 billion (US$388 million) in 2021, which was primarily attributable to (i) our net
loss of RMB645 million (US$101 million), (ii) an add-back of RMB3.4 billion (US$535 million) in non-cash expense or loss items relating to share-
based compensation expenses, depreciation and amortization expenses, loss from changes in fair value for equity securities investment and
exchangeable senior notes, and allowance for credit losses, and (iii) an increase in accounts payables of RMB1.5 billion (US$237 million). The
foregoing were partially offset by (i) an increase in prepayments and other current assets of RMB560 million (US$88 million), (ii) an increase in
accounts receivable of RMB468 million (US$73 million), (iii) a decrease in other payables and accruals of RMB463 million (US$73 million), and
(iv) deferred income tax benefits of RMB337 million (US$53 million).
Net cash used in operating activities amounted to RMB3.8 billion in 2020, which was primarily attributable to (i) our net loss of RMB3.3 billion
in 2020, (ii) a decrease in accounts payable of RMB7.8 billion in 2020, mainly due to a decrease in new bookings of hotel, transportation ticketing, and
packaged-tour services during the COVID-19 pandemic, which were exceeded by settlement, (iii) a decrease in advances from customers of
RMB4.1 billion, mainly due to a decrease in demand for packaged tours, transportation ticketing, and accommodation services, (iv) a decrease in salary
and welfare payable of RMB1.3 billion, mainly due to a decrease in personnel related expenses, (v) a decrease in other payables and accruals of
RMB1.3 billion, mainly due to a decrease in accrued operating related expenses, and (vi) the gain on deconsolidation of subsidiaries of RMB1.1 billion.
The foregoing were partially offset by (i) an add-back of RMB4.1 billion in non-cash expense or loss items, mainly relating to share-based
compensation expenses, depreciation and amortization expenses, allowance for credit losses, and amortization of ROU assets; (ii) a decrease in
prepayments and other current assets of RMB3.8 billion, mainly due to a decrease in prepayment for packaged tours and accommodation services; (iii) a
decrease in accounts receivable of RMB3.2 billion, mainly due to a decrease of corporate travel management services and credit card payments from our
individual users for transportation ticket booking; (iv) the equity in loss of affiliates of RMB1.7 billion mainly in MakeMyTrip; (v) the impairments of
long-term investment of RMB905 million; (vi) a decrease in due from related parties of RMB821 million. Our operating cash flow results in 2020 were
adversely impacted as a result of the COVID-19 pandemic.
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Net cash provided by operating activities amounted to RMB7.3 billion in 2019, which was primarily attributable to (i) our net income of
RMB7.0 billion in 2019; (ii) an add-back of RMB3.9 billion in non-cash expense or loss items, mainly relating to share-based compensation expenses,
depreciation and amortization expenses, and amortization of ROU assets; (iii) an increase in advances from customers of RMB2.2 billion, mainly due to
an increase in demand for packaged tours, transportation ticketing, and accommodation services; (iv) an increase in other payables and accruals of
RMB1.2 billion, mainly due to an increase in accrued operating related expenses; (v) an increase in salary and welfare payable of RMB1.1 billion,
mainly due to an increase in personnel related expenses; and (vi) an increase in accounts payable of RMB540 million, mainly due to an increase in hotel,
transportation ticketing, and packaged-tour services, as we are generally entitled to certain credit terms from our suppliers. These increases were
partially offset by (i) changes in fair value for equity investments measured at fair value of RMB2.3 billion; (ii) an increase in prepayments and other
current assets of RMB2.2 billion, mainly due to an increase in prepayment for packaged tours, transportation ticketing, and accommodation services;
(iii) an increase in accounts receivable of RMB2.0 billion, mainly due to an increase of corporate travel management services, hotels, and credit card
payments from our individual customers for transportation ticket booking; (iv) an increase in due from related parties of RMB1.1 billion; (v) the gain on
disposal and settlement of long-term investment of RMB921 million.
Under PRC laws and regulations, our subsidiaries are required to set aside at least 10% of their respective after-tax profits each year, if any, to
statutory reserve funds, unless such reserve funds have reached 50% of their respective registered capital. These reserve funds are not distributable as
cash dividends and dividends cannot be distributed until any losses from prior fiscal years have been offset. See “Item 3. Key Information —D. Risk
Factors — Risks Relating to Our Corporate Structure — Our PRC subsidiaries are subject to restrictions on paying dividends or making other payments
to us while our consolidated affiliated Chinese entities can only make payments to us in accordance with the contractual arrangements, which may
restrict our ability to satisfy our liquidity requirements.”
Net cash used in investing activities amounted to RMB4.1 billion (US$651 million) in 2021, compared to net cash used in investing activities of
RMB3.8 billion in 2020 and RMB2.4 billion in 2019. The increase in 2021 was primarily due to the decrease in net cash inflows provided by short-term
investments and loan-related cash flows driven by our financial services, offset by a decrease in cash paid for long-term investments. The increase in
2020 was primarily due to an increase in cash paid for long-term investments which was offset by the fluctuations of short-term investments.
Net cash provided by financing activities amounted to RMB3.9 billion (US$615 million) in 2021, compared to net cash provided by financing
activities of RMB6.0 billion in 2020 and net cash used in financing activities of RMB9.3 billion in 2019. We did not make any dividend payment in
2019, 2020 and 2021. Net cash flow in financing activities in 2021 was mainly due to the cash proceeds from the Global Offering and short-term loans,
which were offset by the cash redemption with respect to the 2025 Hillhouse Notes and the 2025 Booking Notes. Net cash flow in financing activities in
2020 was mainly due to the cash proceeds from short-term loans, long-term loans and Exchangeable Senior Notes, which were offset by the cash
redemption with respect to the 2020 Notes and cash put redemption for the 2025 Notes.
Capital Resources
As of December 31, 2021, our principal sources of liquidity have been cash generated from operating activities, borrowings from third-party
lenders, as well as the proceeds we received from our public offerings of ordinary shares and our offerings of convertible senior notes. Our cash and
cash equivalents consist of cash on hand and liquid investments which are unrestricted as to withdrawal or use. Our financing activities consist of
issuance and sale of our ordinary shares, convertible senior notes and exchangeable senior notes to investors and related parties and borrowings from
third-party lenders. As of the date of this annual report, we had convertible senior notes outstanding in an aggregate principal amount of US$81 million,
exchangeable senior notes outstanding in an aggregate principal amount of US$500 million and three major facility loans outstanding under which the
aggregate outstanding principal balance was US$2.5 billion.
Except as disclosed in this annual report, we have no outstanding bank loans or financial guarantees or similar commitments to guarantee the
payment obligations of third parties. The COVID-19 pandemic had material and adverse impacts on our cash flow in 2020 and 2021 with potential
continuing impacts on subsequent periods. However, based on our liquidity assessment, we believe that our cash flow from operations and proceeds
from our financing activities will be sufficient to meet our anticipated cash needs, including our cash needs for working capital and capital expenditures,
for the foreseeable future and for at least 12 months subsequent to the filing of this annual report. We may, however, require additional cash resources
due to changing business conditions or other future developments, including any investments or acquisitions we may decide to pursue. See also “Item 3.
Key Information — D. Risk Factors — Risks Relating to Our Business and Industry — Pandemics (such as COVID-19), epidemics, or fear of spread of
contagious diseases could disrupt the travel industry and our operations, which could materially and adversely affect our business, financial condition,
and results of operations.”
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Off-balance Sheet Arrangements
In connection with our air ticketing business, we are required by the China Air Transport Association and International Air Transport Association
to enter into guarantee arrangements and to pay deposits. The unused deposits are repaid at the end of the guaranteed period on an annual basis. As of
December 31, 2021, the total quota of the air tickets that we were entitled to issue was up to RMB1.1 billion (US$171 million). The total amount of the
deposit we paid was RMB147 million (US$23 million).
Based on the guarantee arrangements and historical experience, the maximum amount of the future payments is approximately RMB943 million
(US$148 million), which is the guaranteed amount of the air ticket that we could issue rather than a financial guarantee. We will be liable to pay only
when we issue the air tickets to our users and such payable is included in the accounts payable. Therefore, we believe the guarantee arrangements do not
constitute any contractual and constructive obligation of us and has not recorded any liability beyond the amount of the tickets that have already been
issued.
Material Cash Requirements
Our material cash requirements as of December 31, 2021 primarily include our debt obligations and capital expenditure commitments.
Our debt obligations consist of the principal amount and cash interests in connection with our convertible and exchangeable notes, term loans and
other debts. Payment due within one year from December 31, 2021 for our debt obligations amounted to RMB40.4 billion (US$6.3 billion). Payment
due after one year from December 31, 2021 for our debt obligations amounted to RMB10.3 billion (US$1.6 billion).
The following sets forth our major debt obligations for the year ended December 31, 2021 and subsequent period:
•
In June 2015, we issued the 2025 Notes in an aggregate principal amount of US$400 million, which may be converted, at each holder’s
option at any time prior to the close of business on the second business day immediately preceding the maturity date of July 1, 2025 based
on an initial conversion rate of 9.3555 of our ADSs per US$1,000 principal amount of notes. The conversion rate is subject to adjustment
upon occurrence of certain events. The 2025 Notes bear interest at a rate of 1.99% per year, payable semiannually in arrears on January 1
and July 1 of each year, beginning on January 1, 2016. In July 2020, we exercised our put right option relating to the 2025 Notes at an
aggregate purchase price of US$395 million.
•
In September 2016, we issued US$25 million in aggregate principal amount of 1.25% convertible notes due 2022, or the 2022 Booking
Notes, to a subsidiary of Booking Holdings Inc. (formerly known as the Priceline Group Inc.), which will mature on September 15, 2022,
unless earlier repurchased or converted into our ADSs based on an initial conversion rate of 15.2688 of our ADSs per US$1,000 principal
amount of notes. The conversion rate is subject to adjustment upon occurrence of certain events. The 2022 Booking Notes bear interest at a
rate of 1.25% per year, payable semiannually beginning on March 15, 2017.
•
In September 2016, we issued the 2022 Notes in an aggregate principal amount of US$975 million, which may be converted, at each
holder’s option at any time prior to the close of business on the business day immediately preceding the maturity date of September 15,
2022 based on an initial conversion rate of 15.2688 of our ADSs per US$1,000 principal amount of notes. The conversion rate is subject to
adjustment upon occurrence of certain events. The 2022 Notes bear interest at a rate of 1.25% per year, payable semiannually in arrears on
March 15 and September 15 of each year, beginning on March 15, 2017. In September 2019, we completed put right offer relating to the
2022 Notes. US$924 million aggregate principal amount of the 2022 Notes were validly surrendered and not withdrawn prior to the
expiration of the put right offer. The aggregate purchase price of these 2022 Notes was US$924 million.
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•
In July 2019, we entered into a facility agreement as a borrower with certain financial institutions for up to US$2.0 billion equivalent
transferable term loan facility with a greenshoe option of up to US$500 million. The facilities have a 3-year tenor. The proceeds borrowed
under such facilities may be used for our general working capital requirements, including repayment of any existing financial indebtedness.
As of December 31, 2021, US$1.5 billion was outstanding under this facility.
•
In April 2020, we entered into a facility agreement as a borrower with certain financial institutions for up to US$1.0 billion transferrable
term and revolving loan facility with an incremental facility of up to US$500 million. The facilities have a 3-year tranche and a 5-year
tranche. The proceeds borrowed under the facilities may be used for our general working capital requirements, including repayment of any
existing financial indebtedness. As of December 31, 2021, US$1.0 billion was outstanding under this facility.
•
In July 2020, we issued the US$500 million in aggregate principal amount of 1.50% exchangeable senior notes due 2027, or the 2020
Exchangeable Notes. The 2020 Exchangeable Notes are exchangeable, at the option of the holders and subject to certain conditions, into
cash, ADSs of Huazhu Group Limited (Nasdaq: HTHT), or a combination thereof, at our election subject to certain conditions. The initial
exchange rate of the 2020 Exchangeable Notes is 24.78 Huazhu ADSs per US$1,000 principal amount of the notes. The 2020
Exchangeable Notes bear interest at a rate of 1.50% per year, payable semiannually beginning on January 1, 2021.
•
In October 2021, we entered into a facility agreement as a borrower with certain financial institutions for an up to US$1.5 billion
transferrable term loan facility. The facility has a 3-year tenor. The proceeds borrowed under this facility may be used for refinancing and
other general corporate purposes. As of December 31, 2021, no amount was drawn down and outstanding.
Our capital expenditure commitments primarily consist of contracted future purchases of property, equipment and software. The unpaid purchase
price due within one year after December 31, 2021 was RMB7 million (US$1 million) as of December 31, 2021. The unpaid purchase price due after
one year from December 31, 2021 was RMB4 million (US$1 million).
We intend to fund our existing and future material cash requirements with our existing cash balance and other financing alternatives. We will
continue to make cash commitments, including capital expenditures, to support the growth of our business.
Other than as discussed above, we did not have any significant capital and other commitments, long-term obligations or guarantees as of
December 31, 2021. While the above indicates our material cash requirements as of December 31, 2021, the actual amounts we are eventually required
to pay may be different in the event that any agreements are renegotiated, cancelled or terminated.
Holding Company Structure
Trip.com Group Limited is a holding company with no material operations of its own. We conduct our operations primarily through our
subsidiaries and consolidated affiliated Chinese entities in China. As a result, our ability to pay dividends depends upon dividends paid by our PRC
subsidiaries. If our existing PRC subsidiaries or any newly formed ones incur debt on their own behalf in the future, the instruments governing their debt
may restrict their ability to pay dividends to us. In addition, our wholly foreign-owned subsidiaries in China are permitted to pay dividends to us only
out of their retained earnings, if any, as determined in accordance with PRC accounting standards and regulations. Under PRC law, each of our
subsidiaries and our consolidated affiliated Chinese entities in China is required to set aside at least 10% of its after-tax profits each year, if any, to fund
certain statutory reserve funds until such reserve funds reach 50% of its registered capital. Each of the other PRC subsidiaries and our consolidated
affiliated Chinese entities is required to allocate a portion of its after-tax profits after contribution of statutory reserve funds based on PRC accounting
standards to a discretionary surplus funds at its discretion. The statutory reserve funds are not distributable as cash dividends. Remittance of dividends
by a wholly foreign-owned company out of China is subject to examination by the banks designated by SAFE.
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C. Research and Development, Patents and Licenses, etc.
Our research and development efforts consist of continuing to develop our proprietary technology as well as incorporating new technologies from
third parties. We intend to continue to upgrade our proprietary booking, customer relationship management and yield management software to keep up
with the continued growth in our transaction volume and the rapidly evolving technological conditions. We will also seek to continue to enhance our
electronic confirmation system and promote such system with more hotel suppliers, as we believe that the electronic confirmation system is a cost-
effective and convenient way for hotels to interface with us.
In addition, we have utilized and will continue to utilize the products and services of third parties to support our technology platform.
D. Trend Information
Other than as disclosed elsewhere in this annual report, we are not aware of any trends, uncertainties, demands, commitments or events for the
period from January 1, 2021 to December 31, 2021 that are reasonably likely to have a material effect on our net revenues, income, profitability,
liquidity or capital resources, or that caused the disclosed financial information to be not necessarily indicative of future operating results or financial
conditions.
E. Critical Accounting Estimates
For our critical accounting estimates, see “Item 5. Operating and Financial Review And Prospects—A. Operating Results—Critical Accounting
Policies and Estimates.”
ITEM 6.
DIRECTORS, SENIOR MANAGEMENT AND EMPLOYEES
A. Directors and Senior Management
The names of our current directors and senior management, their ages as of the date of this annual report, and the principal positions with
Trip.com Group Limited held by them are as follows:
Directors and Executive Officers
James Jianzhang Liang
Min Fan
Jane Jie Sun
Cindy Xiaofan Wang
Neil Nanpeng Shen (1)(2)
Qi Ji (2)
Gabriel Li (1)
JP Gan (1) (2)
Robin Yanhong Li
Dou Shen
Notes:
(1)
(2)
Member of the Audit Committee.
Member of the Compensation Committee.
Age
Position/Title
52 Co-founder; Executive Chairman of the Board
56 Co-founder; Vice Chairman of the Board and President
53 Chief Executive Officer and Director
46 Chief Financial Officer and Executive Vice President
54 Co-founder; Independent Director
55 Co-founder; Independent Director
54 Vice Chairman of the Board, Independent Director
50
53 Director
42 Director
Independent Director
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Pursuant to the currently effective articles of association of our company, our board of directors consists of nine directors, including without
limitation (i) three directors appointed by our co-founders consisting of Messrs. James Jianzhang Liang, Neil Nanpeng Shen, Qi Ji, and Min Fan, subject
to the approval of a majority of our independent directors; and (ii) one director who is the current chief executive officer of our company. Each of our
directors will hold office until such director’s successor is elected and duly qualified, or until such director’s earlier death, bankruptcy, insanity,
resignation or removal. There are no family relationships among any of the directors or executive officers of our company.
Biographical Information
James Jianzhang Liang is one of the co-founders and the executive chairman of our company. He has served as a member of our board of
directors since our inception and has been the chairman of the board since August 2003. Mr. Liang served as our chief executive officer from 2000 to
2006, and from March 2013 to November 2016. Mr. Liang has served as a director of MakeMyTrip Limited (Nasdaq: MMYT) since January 2016, a
director of BTG Hotels Group (SHSE:600258) since January 2017, and a director of Tongcheng Travel Holdings Limited (formerly known as
Tongcheng-Elong Holdings Limited) (SEHK: 0780) since 2016. Mr. Liang formerly served on the boards of Sina Corporation (Nasdaq: SINA, delisted
and privatized in March 2021), Tuniu Corporation (Nasdaq: TOUR), eHi Car Services Limited (NYSE: EHIC, delisted and privatized in April 2019),
51job, Inc (Nasdaq: JOBS), Jiayuan.com International Ltd. (Nasdaq: DATE, delisted and privatized in May 2016), and Homeinns Hotel Group (Nasdaq:
HMIN, delisted and privatized in April 2016). Mr. Liang has won many accolades for his contributions to the Chinese travel industry, including Best
CEO in the Internet category in the 2016 All-Asia Executive Team Rankings by Institutional Investor and 2015 China’s Business Leader of the Year by
Forbes. Mr. Liang obtained his master’s and bachelor’s degrees from Georgia Institute of Technology in the United States.
Min Fan is one of the co-founders of our company. Mr. Fan has been a member of our board of directors since October 2006 and has served as the
vice chairman of our board of directors since March 2013. Mr. Fan has served as our president since February 2009. He also served as our chief
executive officer from January 2006 to March 2013, as our chief operating officer from November 2004 to January 2006, and as our executive vice
president from 2000 to November 2004. During his tenure as our chief executive officer, Mr. Fan was named one of the Top 10 Pioneer Leaders of the
Year on the 2010 APEC China SME Value List, 2008 EY Entrepreneur of the Year (Services Category) and 2007 Best New Economic Figure of the
Year. In 2009 and 2016, Mr. Fan was elected Vice Chairman of the Board of the China Tourism Association. Mr. Fan has served as an independent
director of Leju Holdings Limited (NYSE: LEJU) since April 2014. He served as a director of Huazhu Group Limited (Nasdaq: HTHT, SEHK: 1179)
from March 2010 to January 2018. Mr. Fan obtained his Master’s and Bachelor’s degrees in industrial engineering and management from Shanghai Jiao
Tong University in January 1990 and July 1987, respectively.
Jane Jie Sun has served as the chief executive officer of our company, as well as a member of the board of directors, since November 2016. Prior
to that, she was a co-president since March 2015, chief operating officer since May 2012, and chief financial officer from 2005 to 2012. Ms. Sun is vice
chair of the World Travel and Tourism Council, co-chair of the Development Advisory Board of University of Michigan and Shanghai Jiao Tong
University Joint Institute, and a board member and Business Leaders Group Committee member of Business China established by Singapore’s Founding
Prime Minister Mr. Lee Kuan Yew. In 2019, Ms. Sun was awarded an Asia Society Asia Game Changer Award. Forbes named her one of the Emergent
25 Asia’s Latest Star Businesswomen in 2018, and one of the Top 100 Businesswomen in China in 2017. She was also one of Fortune’s Top 50 Most
Powerful Women in Business, and one of Fast Company’s Most Creative People in Business in 2017. During her tenure at our company, she also won
the Institutional Investor Awards for the Best CEO in July 2017 and the Best CFO in July 2011 and 2012. Ms. Sun received her Bachelor’s degree in
science in accounting from the Fisher School of Accounting at the University of Florida in August 1992 with high honors. She also obtained her LL.M.
degree from Peking University Law School in July 2010. Ms. Sun has been a director of TripAdvisor, Inc. (Nasdaq: TRIP) since July 2020, a director of
MakeMyTrip Limited (Nasdaq: MMYT) since August 2019, an independent director of iQIYI, Inc. (Nasdaq: IQ) since June 2018, and an independent
director of TAL Education Group (NYSE: TAL) since October 2010.
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Cindy Xiaofan Wang has served as our chief financial officer since November 2013 and executive vice president since May 2016. Prior to that, she
was our Vice President since January 2008. Ms. Wang joined us in December 2001 and has held a number of managerial positions at our Company.
Ms. Wang won the Best CFO Award by Institutional Investor in the 2017 All-Asia Executive Team Rankings in 2017, and China Best CFO Leadership
Award by SNAI/ACCA/Korn Ferry in 2021. Previously, Ms. Wang worked with PricewaterhouseCoopers Zhong Tian CPAs Limited Company from
1997 to 1999. Ms. Wang has been a director of MakeMyTrip Limited (Nasdaq: MMYT) since August 2019. She also served on the board of directors of
Huazhu Group Limited (Nasdaq: HTHT, SEHK: 1179) from January 2018 to July 2020. Ms. Wang received a Master of Business Administration from
Massachusetts Institute of Technology in 2013 and obtained her Bachelor’s degree from Shanghai Jiao Tong University in 1997. Ms. Wang is a Certified
Public Accountant (CPA).
Neil Nanpeng Shen is one of the co-founders of our company and has been our company’s director since our inception and an independent director
since October 2008. Neil Nanpeng Shen founded Sequoia Capital China in 2005 and has been serving as the founding managing partner since then.
Mr. Shen served as our president from August 2003 to October 2005 and as chief financial officer from 2000 to October 2005. Mr. Shen also co-founded
and served as non-executive co-chairman of Homeinns Hotel Group (formerly Home Inns & Hotels Management Inc.) (Nasdaq: HMIN, delisted), a
leading economy hotel chain in China, which commenced operations in July 2002. Currently, Mr. Shen also serves as a director of a number of public
and private companies, including a non-executive director of BTG Hotels Group (SHSE: 600258) since January 2017, a non-executive director of Noah
Holdings Limited (NYSE: NOAH) since January 2016, an independent non-executive director of Pinduoduo Inc. (Nasdaq: PDD) since April 2018, a
non-executive director of Meituan (formerly Meituan Dianping) (SEHK: 3690) since October 2015, and a non-executive director of Ninebot Limited
(SHSE: 689009) since July 2015. Mr. Shen was a non-executive director of 360 Security Technology Inc. (SHSE: 601360) from February 2018 to May
2020, and a non-executive director of China Renaissance Holdings Limited (SEHK: 1911) from June 2018 to June 2020. Mr. Shen received his Master’s
degree from Yale University in November 1992 and his Bachelor’s degree in applied mathematics from Shanghai Jiao Tong University in July 1988.
Qi Ji is one of the co-founders of our company. He has served as our director since our inception and as an independent director since 2008. He
was the chief executive officer and president of our Company from 1999 to 2001. Mr. Ji founded Huazhu Group Limited (Nasdaq: HTHT; SEHK:
1179), served as its director since February 2007. He has also served as the executive chairman of its board since August 2009 and its chief executive
officer since November 2019. Prior to his current role, he also served at Huazhu Group Limited as chief executive officer from January 2012 to May
2015 and from 2007 to August 2009. Mr. Ji has over 20 years of experience in the hospitality industry. He co-founded Homeinns Hotel Group (formerly
Home Inns & Hotels Management Inc.) (Nasdaq: HMIN, delisted), and served as its chief executive officer from 2002 to January 2005. He received his
bachelor degree in engineering mechanics and master degree in mechanical engineering from Shanghai Jiao Tong University in the PRC in 1989 and
February 1992, respectively.
Gabriel Li has served at different times on our board of directors since March 2000. Mr. Li has been vice chairman of our board since August
2003 and an independent director since October 2003. Mr. Li has been serving as the managing partner and a member of the investment committee of
Orchid Asia Group Management Limited since August 2004. Mr. Li is a non-executive director of Qeeka Home (Cayman) Inc. (SEHK: 1739), where he
has been a director since April 2015, and was a director of Sangfor Technologies Inc. (SZSE: 300454) from January 2017 to December 2019. Mr. Li
graduated from the University of California in Berkeley, the United States, with a bachelor’s degree in chemical engineering in May 1990. He received
his master of science degree in chemical engineering practice from the Massachusetts Institute of Technology in the United States in September 1991,
and his master’s degree in business administration from Stanford University Business School in the United States in June 1995.
JP Gan has served as our director since April 2002, and as an independent director since July 2005. Mr. Gan has been a founding partner of INCE
Capital Limited since 2019. From December 2006 to June 2019, Mr. Gan was a managing partner of Qiming Venture Partners. From July 2005 to
December 2006, Mr. Gan was the chief financial officer of KongZhong Corporation (Nasdaq: KZ, delisted), a wireless internet company formerly listed
on the Nasdaq. Mr. Gan has been an independent director of BiliBili Inc. (Nasdaq: BILI, SEHK: 9626) since January 2015. Mr. Gan obtained his
Masters of Business Administration from the University of Chicago Graduate School of Business in June 1999 and his Bachelor of Business
Administration from the University of Iowa in May 1994.
Robin Yanhong Li has served as our director since October 2015. He is a co-founder of Baidu, Inc. (Nasdaq: BIDU, SEHK: 9888), a leading AI
company with strong Internet foundation. Mr. Li has been serving as the chairman of Baidu’s Board of Directors since its inception in January 2000 and
as its chief executive officer since February 2004. He served as the president of Baidu from February 2000 to December 2003. Prior to founding Baidu,
Mr. Li worked as an engineer for Infoseek, a pioneer in the search industry, and as a senior consultant for IDD Information Services. Mr. Li currently
serves on the board of New Oriental Education & Technology Group Inc., a private educational services provider in China (NYSE: EDU; SEHK: 9901)
and iQIYI (Nasdaq: IQ). Mr. Li received a bachelor’s degree in information science from Peking University and a master’s degree in computer science
from the State University of New York at Buffalo.
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Dou Shen has served as our director since October 2019. Dr. Shen has served as an executive vice president of Baidu, Inc. (Nasdaq: BIDU, SEHK:
9888) since May 2019. Dr. Shen has also been a director of Beijing Xiaodu Interactive Entertainment Technology Co., Ltd. since January 2018, and the
chairman of Beijing Xiaodu Interactive Entertainment Technology Co., Ltd. since September 2020. Previously, Dr. Shen served as senior vice president
of Baidu, Inc., overseeing the businesses related to Baidu APP, Haokan short video APP and Smart Mini Program. Dr. Shen joined Baidu in 2012 and
has served in management roles in business lines, including web search, advertising display and the financial services group. Prior to joining Baidu,
Dr. Shen worked at Microsoft and cofounded BuzzLabs, Inc., a company engaged in social media monitoring and analysis, which was subsequently
acquired by CityGrid Media. Dr. Shen holds directorships at various other companies. Dr. Shen has been a director of iQIYI, Inc. (Nasdaq: IQ) since
September 2019, has been a director of Kuaishou Technology (SEHK: 1024) since April 2018 and was previously a director of Uxin Limited (Nasdaq:
UXIN) from May 2018 to November 2019. Dr. Shen received his bachelor’s degree in information engineering (computer technology) from North
China Electric Power University in Beijing, the PRC, in June 2001, a master’s degree in computer science and technology from Tsinghua University in
Beijing, the PRC, in July 2004, and a Ph.D. degree in computer science from the Hong Kong University of Science and Technology in Hong Kong in
November 2007. Dr. Shen was awarded by Beijing Overseas Talent Service Joint Council as “Beijing High-Caliber Talent from Overseas” and “Beijing
Distinguished Expert” in July 2014. Dr. Shen was also acknowledged by Beijing Senior Specialized Technique Qualification Evaluation Committee as a
senior engineer in computer technology in May 2018.
B. Compensation
We have entered into a standard form of director agreement with each of our directors. Under these agreements, we paid cash compensation
(inclusive of directors’ fees) to our directors in an aggregate amount of US$1.9 million in 2021. Directors are reimbursed for all expenses incurred in
connection with each Board of Directors meeting and when carrying out their duties as directors of our company. See “Item 6. Directors, Senior
Management and Employees — B. Compensation — Employees’ Share Incentive Plans” for options granted to our directors in 2021.
We have entered into standard forms of employment agreements with our executive officers. Under these agreements, we paid cash compensation
to our executive officers in an aggregate amount of US$0.9 million in 2021, excluding compensation paid to Min Fan, James Jianzhang Liang and Jane
Jie Sun, who also serve and receive compensation as our executive directors. These agreements provide for terms of service, salary and additional cash
compensation arrangements, all of which have been reflected in the 2021 aggregate compensation amount. See “Item 6. Directors, Senior Management
and Employees — B. Compensation — Employees’ Share Incentive Plans” for options granted to our executive officers in 2021.
Our PRC subsidiaries are required by law to make contributions equal to certain percentages of each employee’s salary for his or her pension
insurance, medical insurance, housing fund, unemployment and other statutory benefits. Except for the above statutory contributions, we have not set
aside or accrued any amount to provide pension, retirement or other similar benefits to our executive officers and directors.
Employees’ Share Incentive Plans
Our board of directors has made share-based awards under five share incentive plans, namely, the Global Share Incentive Plan, as amended and
restated in July 2018 and further amended and restated in December 2019, or the Second A&R Global Plan, the 2007 Share Incentive Plan, or the 2007
Plan, the 2005 Employee’s Stock Option Plan, or the 2005 Plan, the 2003 Employee’s Option Plan, or the 2003 Plan, and the 2000 Employee’s Stock
Option Plan, or the 2000 Plan. The terms of the 2005 Plan, the 2003 Plan and the 2000 Plan are substantially similar. The purpose of the plans is to
attract and retain the best available personnel for positions of substantial responsibility, to provide additional incentive to employees, officers and
directors and to promote the success of our business. Our board of directors believes that our company’s long-term success is dependent upon our ability
to attract and retain superior individuals who, by virtue of their ability and qualifications, make important contributions to our business.
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The 2007 Plan, the 2005 Plan, the 2003 Plan and the 2000 Plan have all expired. Under the Second A&R Global Plan, the maximum aggregate
number of ordinary shares that may be issued pursuant to awards was 120,117,135 as of the first business day of 2022, with annual increases on
January 1 of each subsequent calendar year by the number of ordinary shares representing 3% of our then total issued and outstanding share capital as of
December 31 of the preceding year until the termination of the plan. Under the 2007 Plan, options to purchase 15,264,921 shares were issued and
outstanding as of February 28, 2022. Under the Second A&R Global Plan, options to purchase 50,482,054 shares and 840,405 restricted share units were
issued and outstanding as of February 28, 2022.
In December 2019, we completed a one-time modification of share options, pursuant to which eligible employees were able to exchange every
four share options previously granted under the 2007 Share Incentive Plan or the Amended and Restated Global Incentive Plan for one new option that
entitles each eligible grantee to purchase one ordinary share, provided that the eligible options previously granted (and subject to exchange) each had an
exercise price exceeding US$40 per ordinary share. The exercise price of each new option is US$0.00125 per ordinary share and the vesting schedules
remaining unchanged. As a result of the modification, prior options to purchase 6,686,792 ordinary shares were exchanged for new options to purchase
1,672,208 ordinary shares.
In November 2020, as approved by our compensation committee, we extended the exercise period of certain options that were granted under our
2007 Plan to our directors and executive officers that would originally expire for additional five years from their respective original expiration dates.
Following the one (1)-to-eight (8) Share Subdivision on March 18, 2021, the number of ordinary shares that each grantee is entitled to according
to the previously granted share option and restricted share is increased by eight times, while the weighted average grant date fair value per restricted
share and the weighted average exercise price per share option are diluted by eight times.
The following table summarizes, as of February 28, 2022, the outstanding options granted under our 2007 Plan and the Second A&R Global Plan
to the individual executive officers and directors named below. No restricted share units granted under these plans were outstanding as of February 28,
2022. The table gives effect to the modifications described above.
James Jianzhang Liang
Jane Jie Sun
Min Fan
Cindy Xiaofan Wang
Neil Nanpeng Shen
Qi Ji
Gabriel Li
JP Gan
Ordinary Shares
Underlying
Options
Granted
24,993,600
10,649,600
*
*
*
*
*
*
Exercise Price
(US$/Share)
20.25; 22.46; 29.63;
30.93; 40.62; 43.84;
26.13; 31.68; 25.92;
31.86
9.82; 20.25; 22.46; 29.63;
30.93; 40.62; 43.84;
26.13; 31.68; 25.92;31.86
9.82; 20.25; 22.46; 29.63;
30.93; 40.62; 43.84;
0.00125; 31.68;
0.00125; 26.13; 31.68
9.82; 22.46; 29.63; 30.93;
40.62; 43.84; 26.13;
31.68; 31.86
22.46; 29.63; 30.93;
40.62; 43.84; 26.13;
31.68; 31.86
9.82; 22.46; 29.63; 30.93;
40.62; 43.84; 26.13;
31.68; 31.86
22.46; 29.63; 30.93; 40.62;
43.84; 26.13;
31.68; 31.86
Date of Grant
From January 9, 2014 to
February 3, 2021
Date of Expiration
From April 2,
2023 to February 3, 2029
From January 27, 2013 to
February 3, 2021
From April 2,
2023 to February 3, 2029
From January 27, 2013 to
February 3, 2021
From April 2,
2023 to February 3, 2029
From February 9, 2018 to
February 3, 2021
From January 27, 2013 to
February 3, 2021
From February 9,
2026 to February 3, 2029
From April 2,
2023 to February 3, 2029
From December 6, 2014
to February 3, 2021
From April 2,
2023 to February 3, 2029
From January 27, 2013 to
February 3, 2021
From April 2,
2023 to February 3, 2029
From December 6, 2014
to February 3, 2021
From April 2,
2023 to February 3, 2029
* Aggregate number of shares represented by all grants of options to the person account for less than 1% of our total outstanding ordinary shares.
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The following paragraphs summarize the terms of our 2007 Plan, which was amended and restated effective November 17, 2008.
Plan Administration. Our board of directors, or a committee designated by our board or directors, will administer the plan. The committee or the
full board of directors, as appropriate, will determine the type or types of incentive share awards to be granted and provisions and terms and conditions
of each grant and may at their absolute discretion adjust the exercise price of an option grant. The exercise price per share subject to an option may be
reduced by the committee or the full board of directors, without shareholder or option holder approval. The types of incentive share awards pursuant to
the 2007 Plan include, among other things, an option, a restricted share award, a share appreciation right award and a restricted share unit award.
Award Agreements. Options and stock purchase rights granted under our plan are evidenced by a stock option agreement or a stock purchase right
agreement, as applicable, that sets forth the terms, conditions and limitations for each grant.
Eligibility. We may grant awards to our employees, directors and consultants or any of our related entities, which include our subsidiaries or any
entities which are not subsidiaries but are consolidated in our consolidated financial statements prepared under U.S. GAAP.
Acceleration of Options upon Corporate Transactions. The outstanding options will terminate and accelerate upon occurrence of a change of
control corporate transaction where the successor entity does not assume our outstanding options under the plan. In such event, each outstanding option
will become fully vested and immediately exercisable, and the transfer restrictions on the awards will be released and the repurchase or forfeiture rights
will terminate immediately before the date of the change of control transaction provided that the grantee’s continuous service with us shall not be
terminated before that date.
Term of the Options. The term of each option grant shall be stated in the stock option agreement, provided that the term shall not exceed ten years
from the date of the grant, and in the case of incentive share options, five years from the date of the grant.
Vesting Schedule. In general, the plan administrator determines, or the incentive award agreement specifies, the vesting schedules. Currently, three
types of vesting schedules were adopted for the incentive awards granted under the 2007 Plan. One of the vesting schedules is that one-third of the
incentive awards vest 24 months after a specified vesting commencement date, an additional one-third vest 36 months after the specified vesting
commencement date and the remaining one-third vest 48 months after the specified vesting commencement date, subject to other terms under the 2007
Plan and the incentive award agreement. Another type of vesting schedule is that one-fourth of the incentive awards vest every 12 months over a four-
year vesting period starting from a specified vesting commencement date, subject to other terms under the 2007 Plan and the incentive award agreement.
The last type of vesting schedule is that one-tenth of the incentive awards vest 12 months after a specified vesting commencement date, an additional
three-tenth vest 24 months after the specified vesting commencement date, another three-tenth vest 36 months after the specified vesting commencement
date and the remaining three-tenth vest 48 months after the specified vesting commencement date, subject to other terms under the 2007 Plan and the
incentive award agreement.
Other Equity Awards. In addition to stock options, we may also grant to our employees, directors and consultants or any of our related entities
share appreciation rights, restricted share awards, restricted share unit awards, deferred share awards, dividend equivalents and share payment awards,
with such terms and conditions as our board of directors (or, if applicable, the compensation committee) may, subject to the terms of the plan, establish.
Transfer Restrictions. Options to purchase our ordinary shares may not be transferred in any manner by the optionee other than by will or the laws
of succession and may be exercised during the lifetime of the optionee only by the optionee.
Termination or Amendment of the Plan. Unless terminated earlier, the plan was terminated automatically in 2017. Our board of directors has the
authority to amend or terminate the plan subject to shareholder approval to the extent necessary to comply with applicable law, regulation or stock
exchange rule. We must also generally obtain approval of our shareholders to (i) increase the number of shares available under the plan (other than any
adjustment as described above), (ii) permit the grant of options with an exercise price that is below fair market value on the date of grant, (iii) extend the
exercise period for an option beyond ten years from the date of grant, or (iv) results in a material increase in benefits or a change in eligibility
requirements.
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The following paragraphs summarize the principal terms of our Second A&R Global Plan.
Plan Administration. Our compensation committee of the board of directors, or a committee delegated by our compensation committee, will
administer the plan. The committee or the full board of directors, as appropriate, will determine the type or types of incentive share awards to be granted
and provisions and terms and conditions of each grant and may at their absolute discretion adjust the exercise price of an option grant. The exercise price
per share subject to an option may be reduced by the committee or the full board of directors, without shareholder or option holder approval. The types
of incentive share awards pursuant to the Second A&R Global Plan include, among other things, an option, a restricted share award, a share appreciation
right award and a restricted share unit award.
Award Agreements. Options and stock purchase rights granted under our plan are evidenced by an award agreement, that sets forth the terms,
conditions and limitations for each grant.
Eligibility. We may grant awards to our employees, directors and consultants or any of our related entities, which include our subsidiaries or any
entities which are not subsidiaries but are consolidated in our consolidated financial statements prepared under U.S. GAAP.
Term of the Options. The term of each option grant shall be stated in the stock option agreement, provided that the term shall not exceed ten years
from the date of the grant, and in the case of incentive share options, five years from the date of the grant.
Vesting Schedule. In general, the plan administrator determines, or the incentive award agreement specifies, the vesting schedules. Our vesting
schedule is mainly that (i) one-tenth of the incentive awards vest 12 months after a specified vesting commencement date, an additional three-tenth vest
24 months after the specified vesting commencement date, another three-tenth vest 36 months after the specified vesting commencement date and the
remaining three-tenth vest 48 months after the specified vesting commencement date, or (ii) a quarter of the incentive awards vest every 12 months over
a four-year vesting period starting from a specified vesting commencement date, subject to other terms under the Second A&R Global Plan and the
incentive award agreement.
Other Equity Awards. In addition to stock options, restricted share awards and restricted share unit awards, we may also grant to our employees,
directors and consultants or any of our related entities share appreciation rights, deferred share awards, dividend equivalents and share payment awards,
with such terms and conditions as our board of directors (or, if applicable, the compensation committee) may, subject to the terms of the plan, establish.
Transfer Restrictions. Awards may not be transferred in any manner by the participant other than by will or the laws of succession and may be
exercised during the lifetime of the participant only by the participant.
Termination or Amendment of the Plan. Unless terminated earlier, the plan will terminate automatically in 2027. Our board of directors has the
authority to amend or terminate the plan to the extent necessary to comply with applicable law, regulation or stock exchange rule. We must also
generally obtain approval of our shareholders to (i) increase the number of shares available under the plan (other than any adjustment as described
above), (ii) permits the committee to extend the exercise period for an option beyond ten years from the date of grant, or (iii) results in a change in
eligibility requirements, unless we decide to follow home country practice pursuant to Rule 5615(a)(3) of the Nasdaq listing rules applicable to foreign
private issuers.
C. Board Practices
Our board of directors currently consists of nine directors. A director is not required to hold any shares in our company by way of qualification.
Our board of directors may exercise all the powers of our company to borrow money, mortgage or charge its undertaking, property and uncalled capital,
and issue debentures or other securities whenever money is borrowed or as security for any obligation of our company or of any third party. No director
is entitled to any severance benefits upon termination of his directorship with us. As of the date of this annual report, four out of nine of our directors
meet the “independence” definition under The Nasdaq Stock Market, Inc. Marketplace Rules, or the Nasdaq Rules. As Nasdaq Rules permit a foreign
private issuer like us to follow the corporate governance practices of its home country, we chose to rely on home country practice in lieu of the
requirement to have a majority of independent directors on our board under Nasdaq Rules. See “Item 16G. Corporate Governance.”
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Committees of the Board of Directors
Audit Committee. Our audit committee reports to the board regarding the appointment of our independent auditors, the scope and results of our
annual audits, compliance with our accounting and financial policies and management’s procedures and policies relatively to the adequacy of our
internal accounting controls.
As of the date of this annual report, our audit committee consists of Messrs. Gan, Li and Shen. All of these directors meet the audit committee
independence standard under Rule 10A-3 under the Exchange Act. The independence definition under Rules 5605 of the Nasdaq Rules is met by
Messrs. Gan, Li and Shen. In addition, all the members of our audit committee qualify as “audit committee financial experts” as defined in the relevant
Nasdaq Rules.
Compensation Committee. Our compensation committee reviews and evaluates and, if necessary, revises the compensation policies adopted by the
management. Our compensation committee also determines all forms of compensation to be provided to our senior executive officers. In addition, the
compensation committee reviews all annual bonuses, long-term incentive compensation, share options, employee pension and welfare benefit plans. Our
chief executive officer may not be present at any committee meeting during which her compensation is deliberated.
As of the date of this annual report, our compensation committee consists of Messrs. Gan, Ji and Shen, all of whom meet the “independence”
definition under the Nasdaq Rules.
Duties of Directors
Under Cayman Islands law, our directors owe fiduciary duties to our company, including a duty of loyalty to act honestly and in good faith in the
best interests of our company. Our directors must also exercise their powers only for a proper purpose. Our directors also owe to our company a duty to
act with skill and care. It was previously considered that a director need not exhibit in the performance of his duties a greater degree of skill than what
may reasonably be expected from a person of his knowledge and experience. However, English and Commonwealth courts have moved towards an
objective standard with regard to the required skill and care, and these authorities are likely to be followed in the Cayman Islands. In fulfilling their duty
of care to us, our directors must ensure compliance with our memorandum and articles of association, as amended and restated from time to time, and
the class rights vested thereunder in the holders of the shares. Our company has the right to seek damages if a duty owed by our directors is breached. A
shareholder may in certain circumstances have rights to damages if a duty owed by the directors is breached.
Our board of directors has all the powers necessary for managing, and for directing and supervising, our business affairs. The functions and
powers of our board of directors include, among others:
•
•
•
•
•
convening shareholders’ annual general meetings and reporting its work to shareholders at such meetings;
declaring dividends and distributions;
appointing officers and determining the term of office of the officers;
exercising the borrowing powers of our company and mortgaging the property of our company; and
approving the transfer of shares in our company, including the registration of such shares in our share register.
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Terms of Directors and Officers
All directors hold office until their successors have been duly elected and qualified unless such office is vacated earlier in accordance with the
articles of association. A director may only be removed by the shareholders who appointed such director, except in the case of ordinary directors, who
may be removed by ordinary resolutions of the shareholders. Officers are elected by and serve at the discretion of the board of directors.
Board Diversity
Board Diversity Matrix (As of February 28, 2022)
Country of Principal Executive Offices:
Foreign Private Issuer
Disclosure Prohibited Under Home Country Law
Total Number of Directors
Part I: Gender Identity
Directors
Part II: Demographic Background
Underrepresented Individual in Home Country Jurisdiction
LGBTQ+
Did Not Disclose Demographic Background
D. Employees
People’s Republic of China
Yes
No
9
Female Male
Non-
Binary
Did Not
Disclose
Gender
1
8
—
—
—
—
3
As of December 31, 2021, we and our consolidated subsidiaries and consolidated affiliated Chinese entities had approximately 33,732 employees,
including approximately 2,986 in management and administration, approximately 9,764 in our customer service centers, approximately 4,381 in sales
and marketing, and approximately 16,601 in product development including supplier management personnel and technical support personnel. Most of
our employees are based in Shanghai, Beijing, Nantong, and Chengdu.
Our success depends on our ability to attract, retain, and motivate qualified personnel. As part of our retention strategy, we offer employees
competitive salaries, performance-based cash bonuses, regular awards, and long-term incentives.
We primarily recruit our employees through recruitment agencies, on-campus job fairs, industry referrals, and online channels. In addition to on-
the-job training, we have adopted a training system, pursuant to which management, technology, regulatory, and other trainings are regularly provided to
our employees by internally sourced speakers or externally hired consultants. Our employees may also attend external trainings upon their supervisors’
approvals.
As required by PRC laws and regulations in respect of our PRC employment, we participate in housing fund and various employee social
insurance plans that are organized by applicable municipal and provincial government authorities, including housing, pension, medical, work-related
injury, maternity, and unemployment insurance, under which we make contributions at specified percentages of the salaries of our employees. We also
purchase commercial health and accidental insurance coverage for our employees. Bonuses are generally discretionary and based in part on employee
performance and in part on the overall performance of our business. We have adopted several share incentive plans to grant share-based incentive
awards to our eligible employees to incentivize their contributions to our growth and development.
We enter into standard confidentiality and employment agreements with our employees. The contracts with our key personnel typically include a
standard non-compete covenant that prohibits the employee from competing with us, directly or indirectly, during his or her employment and for two
years after the termination of his or her employment, provided that we pay a certain amount of compensation during the restriction period.
We believe that we maintain a good working relationship with our employees, and we did not experience any significant labor disputes or any
difficulty in recruiting staff for our operations in 2021.
E. Share Ownership
As of February 28, 2022, 641,754,377 of our ordinary shares were issued and outstanding (excluding the 41,773,397 ordinary shares that were
issued to Bank of New York Mellon, the depositary of our ADS program, for bulk issuance of ADSs reserved for future issuances upon the exercise or
vesting of awards granted under our stock incentive plans and for our treasury ADSs, and treasury shares we own). Our shareholders are entitled to vote
together as a single class on all matters submitted to shareholders vote. No shareholder has different voting rights from other shareholders. We are not
aware of any arrangement that may, at a subsequent date, result in a change of control of our company.
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The following table sets forth information with respect to the beneficial ownership of our ordinary shares as of February 28, 2022 by each of our
directors and executive officers and each person known to us to own beneficially more than 5% of our ordinary shares. The information below has taken
the one (1)-to-eight (8) subdivision that we effected on March 18, 2021 into account. Except as otherwise noted, the address of each person listed in the
table is c/o Trip.com Group Limited, 968 Jin Zhong Road, Shanghai 200335, People’s Republic of China.
Directors and Senior Management:
James Jianzhang Liang(3)
Min Fan(4)
Jane Jie Sun(5)
Neil Nanpeng Shen(6)
Cindy Xiaofan Wang
Other directors and executive officers as a group, each of whom individually owns less than 0.1%
All directors and officers as a group(7)
Principal Shareholders:
Baidu Entities(8)
Morgan Stanley(9)
T.ROWE PRICE ASSOCIATES, INC.(10)
*
Less than 1% of our total outstanding ordinary shares.
Ordinary Shares Beneficially
Owned(1)
Number
%(2)
23,986,376
9,110,447
8,210,468
*
*
*
44,332,234
3.6%
1.4%
1.3%
*
*
*
6.6%
69,159,340
37,375,739
32,180,651
10.8%
5.8%
5.0%
Notes:
(1)
(2)
(3)
(4)
(5)
(6)
(7)
(8)
Beneficial ownership is determined in accordance with the SEC rules, and includes voting or investment power with respect to the securities.
For each person and group included in this table, percentage ownership is calculated by dividing the number of shares beneficially owned by such person or group by the sum of the
number of ordinary shares outstanding as of February 28, 2022, the number of ordinary shares underlying share options held by such person or group that were exercisable within 60
days after February 28, 2022.
Includes 7,858,776 ordinary shares held by Mr. Liang and 16,127,600 ordinary shares that were issuable upon exercise of options exercisable within 60 days after February 28, 2022
held by Mr. Liang.
Includes 8,080,178 ordinary shares held Mr. Fan and 1,030,269 ordinary shares that were issuable upon exercise of options exercisable within 60 days after February 28, 2022 held by
Mr. Fan.
Includes 1,243,868 ordinary shares held by Ms. Sun and 6,966,600 ordinary shares that were issuable upon exercise of options exercisable within 60 days after February 28, 2022 held
by Ms. Sun.
Mr. Shen’s business address is Suite 3613, 36/F, Two Pacific Place, 88 Queensway, Hong Kong.
Includes 19,345,189 ordinary shares and 24,987,045 ordinary shares that were issuable upon exercise of options exercisable within 60 days after February 28, 2022 held by all of our
current directors and executive officers, as a group.
Includes 69,159,340 ordinary shares beneficially owned as of December 31, 2021 by Baidu Holdings Limited, a wholly-owned subsidiary of Baidu, Inc. (collectively, “Baidu
Entities”). Information regarding beneficial ownership is reported as of December 31, 2021, based on the information provided by Baidu Entities to us. The address for Baidu Holdings
Limited is c/o Baidu, Inc., No. 10 Shangdi 10th Street, Haidian District, Beijing 100085, the People’s Republic of China, and the address for Baidu, Inc. is No. 10 Shangdi 10th Street,
Haidian District, Beijing 100085, the People’s Republic of China.
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(9)
(10)
Includes 37,375,739 ordinary shares held by Morgan Stanley. Information regarding beneficial ownership is reported as of December 31, 2021, based on the information contained in
the Schedule 13G/A filed by Morgan Stanley with SEC on February 11, 2022. Please see the Schedule 13G/A filed by Morgan Stanley with SEC on February 11, 2022 for information
relating to Morgan Stanley. The address for Morgan Stanley. is 1585 Broadway New York, NY 10036, the United States.
Includes 32,180,651 ordinary shares held by T.ROWE PRICE ASSOCIATES, INC. Information regarding beneficial ownership is reported as of March 2, 2022. Please see the
Disclosure of Interests Notice filed by T.ROWE PRICE ASSOCIATES, INC. with HKEX on March 2, 2022 for information relating to T.ROWE PRICE ASSOCIATES, INC. The
address for T.ROWE PRICE ASSOCIATES, INC. is 100 E. Pratt Street, Baltimore, Maryland 21202, the United States.
To our knowledge, we believe that as of February 28, 2022, 516,416,032 ordinary shares were held by two record shareholders in the United
States, including 516,416,024 ordinary shares (including ordinary shares that were issued for bulk issuance of ADSs reserved for future issuances upon
the exercise or vesting of awards granted under our stock incentive plans and treasury shares that were repurchased but not retired by our company) held
of record by The Bank of New York Mellon, the depositary of our ADS program. The number of beneficial owners of our ADSs in the United States is
likely to be much larger than the number of record holders of our ordinary shares in the United States.
ITEM 7.
MAJOR SHAREHOLDERS AND RELATED PARTY TRANSACTIONS
A. Major Shareholders
Please refer to “Item 6. Directors, Senior Management and Employees — E. Share Ownership.”
B. Related Party Transactions
Arrangements with Consolidated Affiliated Chinese Entities
Current PRC laws and regulations impose substantial restrictions on foreign ownership of the travel agency and value-added telecommunications
businesses in China. Therefore, we conduct part of our businesses through a series of agreements between our PRC subsidiaries, our consolidated
affiliated Chinese entities and/or their respective shareholders. Our consolidated affiliated Chinese entities hold the licenses and approvals for operating
the travel agency, and value-added telecommunications businesses in China. We do not hold any ownership interest in our consolidated affiliated
Chinese entities. In 2015, we restructured our business lines and most of the contractual arrangements that we previously entered into with our
consolidated affiliated Chinese entities in order to further strengthen our ability to control these entities and receive substantially all of the economic
benefits from them. Moreover, we plan to enter into the same series of agreements with all of our future consolidated affiliated Chinese entities. As of
the date of this annual report, Min Fan, our vice chairman of the board and president, Bo Sun, Maohua Sun, Qi Shi, Hui Cao, and Hui Wang, all being
our officers or senior counsels, are the principal record owners of our consolidated affiliated Chinese entities.
As of the date of this annual report, the equity holding structures of each of our significant consolidated affiliated Chinese entities are as follows:
•
•
•
•
Maohua Sun and Bo Sun owned 10.2% and 89.8%, respectively, of Ctrip Commerce.
Ctrip Commerce owned 100% of Shanghai Huacheng.
Min Fan and Qi Shi owned 99.5% and 0.5%, respectively, of Chengdu Ctrip.
Hui Cao and Hui Wang owned 60% and 40%, respectively, of Qunar Beijing.
We believe that the terms of these agreements are no less favorable than the terms that we could obtain from disinterested third parties. The terms
of the agreements with the same title between us and our respective consolidated affiliated Chinese entities are substantially similar except for the
amount of the business loans to the shareholders of each entity and the amount of service fees paid by each entity. We believe that the shareholders of
our consolidated affiliated Chinese entities will not receive any personal benefits from these agreements except as shareholders of our company.
According to our PRC legal counsel, Commerce & Finance Law Offices, these agreements are valid, binding and enforceable under the current laws and
regulations of China as of the date of this annual report. The principal terms of these agreements are described below.
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Powers of Attorney. Each of the shareholders of our consolidated affiliated Chinese entities, except for Hui Cao and Hui Wang, signed an
irrevocable power of attorney to appoint Ctrip Travel Network or Ctrip Travel Information, as attorney-in-fact to vote, by itself or any other person to be
designated at its discretion, on all matters of the applicable consolidated affiliated Chinese entities. Each such power of attorney will remain effective as
long as the applicable consolidated affiliated Chinese entity exists, and such shareholders of the applicable consolidated affiliated Chinese entities are
not entitled to terminate or amend the terms of the power of attorneys without prior written consent from us.
As of the date of this annual report, each of the shareholders of Qunar Beijing, Hui Cao and Hui Wang, also signed an irrevocable power of
attorney authorizing an appointee, to exercise, in a manner approved by Qunar, on such shareholder’s behalf the full shareholder rights pursuant to
applicable laws and Qunar Beijing’s articles of association, including without limitation full voting rights and the right to sell or transfer any or all of
such shareholder’s equity interest in Qunar Beijing. Each such power of attorney is effective until such time as such relevant shareholder ceases to hold
any equity interest in Qunar Beijing. The terms of the power of attorney with respect to Qunar Beijing are substantially similar to the terms described in
the foregoing paragraph.
Technical Consulting and Services Agreements. Ctrip Travel Information and Ctrip Travel Network, each a wholly-owned PRC subsidiary of ours,
provide our consolidated affiliated Chinese entities, except for Qunar Beijing, with technical consulting and related services and staff training and
information services on an exclusive basis. We also maintain their network platforms. In consideration for our services, our consolidated affiliated
Chinese entities agree to pay us service fees as calculated in such manner as determined by us from time to time based on the nature of service, which
may be adjusted periodically. For 2020, our consolidated affiliated Chinese entities paid Ctrip Travel Information (after our restructuring of business
lines and restatement of contractual arrangements in 2015) and Ctrip Travel Network (after our restructuring of business lines and restatement of
contractual arrangements in 2015) a quarterly fee based on the number of transportation tickets sold in the quarter, at an average rate of RMB3 (US$0.4)
per ticket. Although the service fees are typically determined based on the number of transportation tickets sold, given the fact that the nominee
shareholders of such consolidated affiliated Chinese entities have irrevocably appointed a designated person to vote on their behalf on all matters they
are entitled to vote on, we have the right to determine the level of service fees paid and therefore receive substantially all of the economic benefits of our
consolidated affiliated Chinese entities in the form of service fees. The services fees paid by all of such consolidated affiliated Chinese entities as a
percentage of their total net income were 95%, 117% and 108% for the years ended December 31, 2019, 2020 and 2021. Ctrip Travel Information or
Ctrip Travel Network, as appropriate, will exclusively own any intellectual property rights arising from the performance of this agreement. The initial
term of these agreements is 10 years and may be renewed automatically in 10-year terms unless we disapprove the extension. We retain the exclusive
right to terminate the agreements at any time by delivering a 30-day advance written notice to the applicable consolidated affiliate Chinese entity.
As of the date of this annual report, pursuant to the restated exclusive technical consulting and services agreement between Qunar Beijing and
Qunar Software, Qunar Software provides Qunar Beijing with technical, marketing and management consulting services on an exclusive basis in
exchange for service fee paid by Qunar Beijing based on a set formula defined in the agreement subject to adjustment by Qunar Software at its sole
discretion. This agreement will remain in effect until terminated unilaterally by Qunar Software or mutually. The terms of this agreement are
substantially similar to the terms described in the foregoing paragraph.
Equity Pledge Agreements. The shareholders of our consolidated affiliated Chinese entities, except for Hui Cao and Hui Wang, have pledged their
respective equity interests in the applicable consolidated affiliated Chinese entities as a guarantee for the performance of all the obligations under the
other contractual arrangements, including payment by such consolidated affiliated Chinese entities of the technical and consulting services fees to us
under the technical consulting and services agreements, repayment of the business loan under the loan agreements and performance of obligations under
the exclusive option agreements, each agreement as described herein. This agreement shall be valid and binding on the parties, their heirs, successors
and permitted assignees. In the event any of such consolidated affiliated Chinese entity breaches any of its obligations or any shareholder of such
consolidated affiliated Chinese entities breaches his or her obligations, as the case may be, under these agreements, we are entitled to enforce the equity
pledge right and sell or otherwise dispose of the pledged equity interests, and have priority in receiving payment from proceeds from the auction or sale
of all or part of the pledge until the obligations are settled. The pledge shall be established upon registration with the local branch of the SAMR, which
has been completed, and will expire two years after the pledgor and the applicable consolidated affiliated Chinese entities no longer undertake any
obligations under the above-referenced agreements.
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As of the date of this annual report, pursuant to the equity interest pledge agreement among Qunar Software, Hui Cao and Hui Wang, Hui Cao and
Hui Wang have pledged their equity interests in Qunar Beijing along with all rights, titles and interests to Qunar Software as guarantee for the
performance of all obligations under the relevant contractual arrangements mentioned herein. This agreement shall be valid and binding on the parties,
their heirs, successors and permitted assignees. Qunar Software may enforce this pledge upon the occurrence of a settlement event or as required by the
PRC law. The pledge shall be established upon registration with the local branch of the SAMR, which has been completed, and will expire when all
obligations under the relevant contractual arrangements have been satisfied. In enforcing the pledge, Qunar Software is entitled to dispose of the pledge
and have priority in receiving payment from proceeds from the auction or sale of all or part of the pledge until the obligations are settled. The terms of
this agreement are substantially similar to the terms described in the foregoing paragraph.
Loan Agreements. Under the loan agreements we entered into with the shareholders of our consolidated affiliated Chinese entities, except for Hui
Cao and Hui Wang, we extended long-term business loans to these shareholders of our consolidated affiliated Chinese entities with the sole purpose of
providing funds necessary for the capitalization or acquisition of such consolidated affiliated Chinese entities. These business loan amounts were
injected into the applicable consolidated affiliated Chinese entities as capital and cannot be accessed for any personal uses. The initial term of the loan
agreements is 10 years and may be renewed automatically in 10-year terms unless we disapprove the extension by written notice in advance. The loan
agreements shall remain effective until the parties have fully performed their respective obligations under the agreement, and the shareholders of such
consolidated affiliated Chinese entities have no right to unilaterally terminate these agreements or repay the loan in advance. The loan agreements shall
be valid and binding on the parties, their successors and permitted assignees. In the event that the PRC government lifts its substantial restrictions on
foreign ownership of the travel agency or value-added telecommunications business in China, as applicable, we will exercise our exclusive option to
purchase all of the outstanding equity interests of our consolidated affiliated Chinese entities, as described in the following paragraph, and the loan
agreements will be canceled in connection with such purchase. However, it is uncertain when, if at all, the PRC government will lift any or all of these
restrictions.
The following table sets forth, as of the date of this report, the amount of each business loan, the date each business loan arrangement was entered
into, the principal, interest, maturity date and outstanding balance of the loan, the borrower and the relevant significant consolidated affiliated Chinese
entity.
Date of Loan Agreement
Borrower
Significant
Consolidated
Affiliated Chinese
Entity
Principal
RMB US$
(in millions)
Interest
Maturity Date
November 30, 2021
April 9, 2019
December 14, 2015
March 20, 2017
December 14, 2015
March 20, 2017
December 14, 2015
March 23, 2016
March 23, 2016
Ctrip Commerce 808.2 126.8 None November 29, 2031
Bo Sun
Maohua Sun Ctrip Commerce 88.7 13.9 None December 13, 2025
Maohua Sun Ctrip Commerce
0.5 None December 13, 2025
477.6 74.9 None December 13, 2025
Min Fan
3.1 None December 13, 2025
19.9
Min Fan
0.4 None December 13, 2025
2.4
Qi Shi
0.0 None December 13, 2025
0.1
Qi Shi
1.0 None Until repayment notice
6.6
Hui Cao
0.7 None Until repayment notice
4.4
Hui Wang
Chengdu Ctrip
Chengdu Ctrip
Chengdu Ctrip
Chengdu Ctrip
Qunar Beijing
Qunar Beijing
3.1
120
Outstanding
Balance
RMB
US$
(in millions)
808.2
88.7
3.1
477.6
19.9
2.4
0.1
6.6
4.4
126.8
13.9
0.5
74.9
3.1
0.4
0.0
1.0
0.7
Table of Contents
As of the date of this annual report, pursuant to the loan agreement among Qunar Software, Hui Cao and Hui Wang, the loans extended by Qunar
Software to each of Hui Cao and Hui Wang are only repayable by a transfer of such borrower’s equity interest in Qunar Beijing to Qunar Software or its
designated party, in proportion to the amount of the loan to be repaid. This loan agreement will continue in effect indefinitely until such time when
(i) the borrowers receive a repayment notice from Qunar Software and fully repay the loans, or (ii) an event of default (as defined therein) occurs unless
Qunar Software sends a notice indicating otherwise within 15 calendar days after it is aware of such event. The loan agreements shall be valid and
binding on the parties, their successors and permitted assignees. The terms of this loan agreement is substantially similar to the terms described in the
foregoing paragraphs.
Exclusive Option Agreements. As consideration for our entering into the loan agreements described above, each of the shareholders of our
consolidated affiliated Chinese entities, except for Hui Cao and Hui Wang, has granted us an exclusive, irrevocable option to purchase, or designate one
or more person(s) at our discretion to purchase, all of their equity interests in the applicable consolidated affiliated Chinese entities at any time we
desire, subject to compliance with the applicable PRC laws and regulations. We may exercise the option by issuing a written notice to the shareholder of
relevant consolidated affiliated Chinese entity. Subject to the evaluation requirements or other restrictions imposed by applicable PRC laws and
regulations, the purchase price shall be equal to the contribution actually made by the shareholder for the relevant equity interest. Therefore, if we
exercise these options, we may choose to cancel the outstanding loans we extended to the shareholders of such consolidated affiliated Chinese entities
pursuant to the loan agreements as the loans were used solely for equity contribution purposes. The initial term of these agreements is 10 years and may
be renewed automatically in 10-year terms unless we disapprove the extension. This agreement shall be valid and binding on the parties, their heirs,
successors and permitted assignees. We retain the exclusive right to terminate the agreements at any time by delivering a written notice to the
shareholder of applicable consolidated affiliate Chinese entity.
Hui Cao and Hui Wang also entered into an equity option agreement with Qunar, Qunar Software and Qunar Beijing. This equity option
agreement contains arrangements that are similar to that as described in the foregoing paragraph. This agreement will remain effective with respect to
each of Qunar Beijing’s shareholders until all of the equity interest has been transferred or Qunar and Qunar Software terminates the agreement
unilaterally with 30 days’ prior written notice. This agreement shall be valid and binding on the parties, their successors and permitted assignees.
Our consolidated affiliated Chinese entities and their shareholders agree not to enter into any transaction that would affect the assets, obligations,
rights or operations of our consolidated affiliated Chinese entities without our prior written consent. They also agree to accept our guidance with respect
to day-to-day operations, financial management systems and the appointment and dismissal of key employees.
In addition, we also enter into technical consulting and services agreements with our majority or wholly-owned subsidiaries of some of the
consolidated affiliated Chinese entities, such as Chengdu Ctrip International, and these subsidiaries pay us service fees based on the level of services
provided. The existence of such technical consulting and services agreements provides us with the enhanced ability to transfer economic benefits of
these majority or wholly-owned subsidiaries of the consolidated affiliated Chinese entities to us in exchange for the services provided, and this is in
addition to our existing ability to consolidate and extract the economic benefits of these majority or wholly-owned subsidiaries of the consolidated
affiliated Chinese entities. For instance, the consolidated affiliated Chinese entities may cause the economic benefits to be channeled to them in the form
of dividends, which then may be further consolidated and absorbed by us through the contractual arrangements described above.
Share Incentive Grants
Please refer to “Item 6. Directors, Senior Management and Employees — B. Compensation — Employees’ Share Incentive Plans.”
Employment Agreements
See “Item 6. Directors, Senior Management and Employees — B. Compensation.”
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Commissions from Homeinns and BTG
In December 2016, in connection with our share exchange transaction with BTG Hotels (Group) Co., Ltd., or BTG, and Homeinns Hotel Group,
or Homeinns, we exchanged our previously held equity interest in Homeinns for 22% equity interest of BTG. BTG had entered into agreements with us
to provide hotel rooms for our customers. Total commissions from BTG amounted to RMB73 million (US$11 million) for the year ended December 31,
2021. These commissions were paid to us in our ordinary course of business on terms substantially similar to those for our unrelated hotel suppliers.
Commissions from Huazhu and its affiliates
One of our hotel partners, Huazhu Group Limited, or Huazhu, has a director in common with our company and a director who is a family member
of one of our officers. Huazhu has entered into agreements with us to provide hotel rooms for our customers. Total commissions Huazhu paid us
amounted to RMB100 million (US$16 million) for the year ended December 31, 2021. These commissions were paid to us in our ordinary course of
business on terms substantially similar to those for our unrelated hotel suppliers.
Commissions to/from Tongcheng Travel
In 2018, eLong completed a merger with Tongcheng Network Technology Co., Ltd. and the enlarged group Tongcheng Travel Holdings Limited
(formerly known as Tongcheng-eLong Holdings Limited), or Tongcheng Travel, supersedes eLong, Inc. and LY.com to promote our hotel rooms on their
platforms. In exchange for our prior holdings in eLong, we received an equity method investment in the enlarged group. Total commissions to
Tongcheng Travel paid by us amounted to RMB294 million (US$46 million) and Tongcheng Travel paid commissions to us amounting to
RMB186 million (US$29 million) for the year ended December 31, 2021.
Technology service fees from Shangcheng Consumer Finance
We provide Shangcheng Consumer Finance Corporation Limited, a company in which we own 37.5% equity interest, or Shangcheng Consumer
Finance, access to our platform to provide financial services to our users. Total technology service fees from Shangcheng Consumer Finance amounted
to RMB265 million (US$42 million) for the year ended December 31, 2021.
Settlement with Skysea
In 2019, Skysea Holding International Ltd., a company in which we owned 35% equity interest and to which we provided a shareholder loan in a
principal amount of US$80 million, or Skysea, completed its winding down of the business and we entered into the final settlement with Skysea.
According to the final settlement, we collected the amount due from Skysea and settled the provision and contingent liability of RMB603 million
(recognized as other income), which includes RMB236 million previously made for loan receivable and RMB367 million previously made for
contingent payables.
C. Interests of Experts and Counsel
Not applicable.
ITEM 8.
FINANCIAL INFORMATION
A. Consolidated Statements and Other Financial Information
We have appended our audited consolidated financial statements filed pursuant to “Item 18. Financial Statements” as part of this annual report.
Legal Proceedings
We are not currently a party to any pending material litigation or other legal proceeding and are not aware of any pending litigation or other legal
proceeding that may have a material adverse impact on our business or operations. However, we are and may continue to be subject to various legal
proceedings and claims that are incidental to our ordinary course of business.
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Dividend Policy
During the past five years, we have not distributed dividends to our shareholders of record.
We have received dividends from our subsidiaries, which have received consulting or other fees from our consolidated affiliated Chinese entities.
In accordance with current Chinese laws and regulations, our subsidiaries and affiliated entities in China are required to allocate to their statutory reserve
funds at least 10% of their respective after-tax profits for the year determined in accordance with Chinese accounting standards and regulations. Each of
our subsidiaries and affiliated entities in China may stop allocations to its statutory reserve funds if such reserve funds have reached 50% of their
registered capital.
Our board of directors has complete discretion as to whether we will distribute dividends in the future, subject to the approval of our shareholders.
Even if our board of directors determines to distribute dividends, the form, frequency and amount of our dividends will depend upon our future
operations and earnings, capital requirements and surplus, general financial condition, contractual restrictions, potential tax implications and other
factors as the board of directors may deem relevant. Any dividend we declare will be paid to the holders of ADSs, subject to the terms of the deposit
agreement, to the same extent as holders of our ordinary shares, less the fees and expenses payable under the deposit agreement. Any dividend we
declare will be distributed by the depositary bank to the holders of our ADSs. Cash dividends on our ordinary shares, including those represented by the
ADSs, if any, will be paid in U.S. dollars.
B. Significant Changes
Except as disclosed elsewhere in this annual report, we have not experienced any significant changes since the date of our audited consolidated
financial statements included in this annual report.
ITEM 9.
THE OFFER AND LISTING
A. Offer and Listing Details.
Our ADSs have been listed on the Nasdaq Global Market since December 2003 and the Nasdaq Global Select Market since July 2006. Our ADSs
were previously traded under the symbol “CTRP” and are currently traded under the symbol “TCOM,” starting from November 5, 2019. Currently, each
of our ADSs represents one ordinary share of our company, par value US$0.00125 per share.
Our ordinary shares have been listed on the Hong Kong Stock Exchange since April 2021 under the stock code “9961.”
B. Plan of Distribution
Not applicable.
C. Markets
Our ADSs have been listed on the Nasdaq Global Market since December 2003 and on the Nasdaq Global Select Market since July 2006. Our
ADSs are currently traded under the symbol “TCOM.”
Our ordinary shares have been listed on the Hong Kong Stock Exchange since April 2021 under the stock code “9961.”
D. Selling Shareholders
Not applicable.
E. Dilution
Not applicable.
F. Expenses of the Issue
Not applicable.
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ITEM 10.
ADDITIONAL INFORMATION
A. Share Capital
Not applicable.
B. Memorandum and Articles of Association
Ordinary Shares
General. All of our issued and outstanding ordinary shares are fully paid and non-assessable. Our ordinary shares are issued in registered form,
and are issued when entered in our register of members. Our shareholders who are non-residents 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
Act.
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 before or on the declaration of the result of, the show of hands, a poll is demanded. A poll may be demanded
by the chairman of the meeting or any shareholder or shareholders collectively present in person or by proxy and holding at least ten percent in par value
of the shares giving a right to attend and vote at the meeting.
A quorum required for a meeting of shareholders consists of at least two shareholders (or, if our company has only one shareholder, that one
shareholder) holding (i) not less than ten per cent. of the votes attaching to all issued and outstanding shares, for as long as our shares remain listed on
The Stock Exchange of Hong Kong Limited, or (ii) otherwise not less than one-third of the issued and outstanding voting shares in our company, present
in person or by proxy. Shareholders’ meetings may be convened by our board of directors on its own initiative or upon a request to the directors by
shareholders holding in aggregate not less than ten per cent in par value of our voting share capital for as long as our shares remain listed on The Stock
Exchange of Hong Kong Limited. Advance notice of (i) at least 14 days, for as long as our shares remain listed on The Stock Exchange of Hong Kong
Limited, or (ii) otherwise at least a seven-day notice is required for the convening of any of our 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 attaching to the ordinary
shares cast in a general meeting. 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 authorized but
unissued shares.
Liquidation If our company shall be wound up the liquidator may, with the sanction of a special resolution of our company and any other sanction
required by the Companies Act, divide amongst our shareholders in kind the whole or any part of the assets of our company (whether they shall consist
of property of the same kind or not) and may for that purpose value any assets and determine how the division shall be carried out as between the
shareholders or different classes of shareholders. The liquidator may, with the like sanction, vest the whole or any part of such assets in trustees upon
such trusts for the benefit of the shareholders as the liquidator, with the like sanction, shall think fit, but so that no shareholder shall be compelled to
accept any asset upon which there is a liability.
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.
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Redemption, Repurchase and Surrender of Shares. We may issue shares on the terms that such shares are subject to redemption, at our option or at
the option of the holders thereof on such terms and in such manner as may be determined, prior to the issue of such shares, by special resolution. Our
company may also repurchase any of our shares (including redeemable shares) provided that the manner of such purchase has been authorized by an
ordinary resolution of our shareholders. Under the Companies Act, the redemption or repurchase of any share may be paid out of our company’s profits
or share premium account or out of the proceeds of a fresh issue of shares made for the purpose of such redemption or repurchase, or out of capital if our
company shall, immediately following such payment, be able to pay its debts as they fall due in the ordinary course of business. In addition, under the
Companies Act, no such share may be redeemed or repurchased (a) unless it is fully paid up, (b) if such redemption or repurchase would result in there
being no shares outstanding, or (c) our company has commenced liquidation. In addition, our company may accept the surrender of any fully paid share
for no consideration.
Variations of Rights of Shares. If at any time the share capital of our company is divided into different classes of shares, the rights attached to any
class (unless otherwise provided by the terms of issue of the shares of that class) may, whether or not our company is being wound-up and except where
our articles of association or the Companies Act impose any stricter quorum, voting or procedural requirements in regard to the variation of rights
attached to a specific class, be varied either with the consent in writing of the holders of 75% 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 pursuant to a rights agreement. 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, except the acquirer that triggers the exercise of the Rights, to purchase from us one ordinary share at a price
of US$700 per ordinary share, subject to adjustment. As a result, the acquirer will be greatly diluted, and other existing shareholders who exercise the
Rights will not be diluted, thereby effectively reducing the risk of a potential hostile takeover. On August 7, 2014, we entered into a First Amendment
and, subsequently on the same day, a Second Amendment to the Rights Agreement dated as of November 23, 2007 between the Bank of New York
Mellon and us. Through these two amendments, we (i) extended the term of our rights agreement for another ten years and the Rights will expire on
August 6, 2024, subject to the right of our board of directors to extend the rights agreement for another ten years prior to its expiration; (ii) modified the
trigger threshold of the Rights to allow more flexibility. Specifically, shareholders who file or are entitled to file beneficial ownership statement on
Schedule 13G pursuant to Rule 13d-1(b)(1) of the Exchange Act, typically institutional investors with no intention to acquire control of the issuer, will
be able to beneficially own up to 20% of our total outstanding shares before the Rights are triggered, while all other shareholders must maintain their
beneficial ownership at a level below 10% of our total outstanding shares before the Rights are triggered, among other things; and (iii) included Booking
Holdings Inc. (formerly known as the Priceline Group Inc.), or Booking, and its subsidiaries in the definition of “Exempt Person” under the then
effective rights agreement as long as their beneficial ownership do not exceed 10% of our total outstanding shares. On May 29, 2015, October 26, 2015,
and December 23, 2015, we entered into a Third Amendment, a Fourth Amendment, and a Fifth Amendment to the Rights Agreement with the Bank of
New York Mellon, respectively, for the purposes of amending the definition of “Exempt Person.” Accordingly, in so far as Booking and any of its
subsidiaries are concerned in connection with the determination of Exempt Person, the term “Exempt Person” will be applied only to the extent that the
number of ordinary shares beneficially owned by such Exempt Person (excluding the number of our ADSs or the ordinary shares that are beneficially
owned by Booking and any of its subsidiaries due to any such entity’s ownership or conversion of that certain note issued by us pursuant to a convertible
note purchase agreement dated December 9, 2015 between a subsidiary of Booking and us) at all times does not exceed fifteen percent (15%) of the
ordinary shares then outstanding in the aggregate and in so far as Baidu and any of its subsidiaries are concerned in connection with the determination of
Exempt Person, the term “Exempt Person” will be applied only to the extent that the number of ordinary shares beneficially owned by such Exempt
Person at all times does not exceed twenty-seven percent (27%) of the ordinary shares then outstanding in the aggregate. On August 30, 2019 and
November 13, 2019, we entered into a Sixth Amendment and a Seventh Amendment to the Rights Agreement with the Bank of New York Mellon,
respectively, for purposes of amending the definition of “Exempt Person.” Accordingly, in connection with the share exchange transaction with Naspers,
Naspers, MIH Internet SEA Private Limited, and their respective subsidiaries have been included in the definition of “Exempt Person” to the extent that
the number of ordinary shares beneficially owned by such Exempt Person at all times does not exceed eleven percent (11%) of the ordinary shares then
outstanding in the aggregate, and removed Booking and its subsidiaries from the definition of “Exempt Person.”
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The Rights were not distributed in response to any specific effort to acquire control of our company.
Registered Office and Objects
Our registered office in the Cayman Islands is located at the offices of Maples Corporate Services Limited, PO Box 309, Ugland House, Grand
Cayman, KY1-1104, Cayman Islands, or at such other place as our directors may from time to time decide. The objects for which our company is
established are unrestricted and we have full power and authority to carry out any object not prohibited by the Companies Act or any other law of the
Cayman Islands.
Board of Directors
Our board of directors currently consists of nine directors. Our board of directors may exercise all the powers of our company to borrow money, to
mortgage or charge its undertaking, property and uncalled capital, or any part thereof, and to issue debentures, debenture stock or other securities
whether outright or as security for any debt, liability or obligation of our company or of any third party. A director may vote with respect to any contract
or transaction in which he or she is interested as long as he or she has made a declaration of the nature of such interest. A director is not required to hold
any shares in our company by way of qualification, and there is no requirement for a director to retire at any age limit.
We have a compensation committee that assists the board in reviewing and approving the compensation structure and form of compensation of our
directors and executive officers. Members of the compensation committee are not prohibited from direct involvement in determining their own
compensation. Our chief executive officer may not be present at any committee meeting during which her compensation is deliberated.
For details of our board of directors and its committees, see “Item 6. Directors, Senior Management and Employees — C. Board Practices .”
C. Material Contracts
Other than in the ordinary course of business and other than the one described under this item, in “Item 4. Information on the Company” and
“Item 7. — Major Shareholders and Related Party Transactions — B. Related Party Transactions” or elsewhere in this annual report, we have not
entered into any material contract during the two years immediately preceding the date of this annual report: (i) a facility agreement dated April 3, 2020
among our company (as borrower), Standard Chartered Bank (Hong Kong) Limited, Industrial and Commercial Bank of China (Macau) Limited, and
China Construction Bank (Asia) Corporation Limited (as original mandated lead arrangers, bookrunners, and underwriters), and other parties thereto,
(ii) Indenture dated July 20, 2020 constituting US$500 million 1.50% Exchangeable Senior Notes due 2027, (iii) Supplemental Indenture dated
December 15, 2020 constituting US$500 million 1.50% Exchangeable Senior Notes due 2027, and (iv) a facility agreement dated October 18, 2021
among our company (as borrower), Bank of China Limited and The HongKong and Shanghai Banking Corporation Limited (as mandated lead arrangers
and bookrunners), and other parties thereto.
D. Exchange Controls
See “Item 4. Information on the Company — B. Business Overview — PRC Government Regulations — Regulations Related to Foreign
Exchange Control” and “Item 4. Information on the Company — B. Business Overview — PRC Government Regulations — Regulations Related to
Dividend Distributions.”
E. Taxation
The following summary of the material Cayman Islands, PRC 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 annual report, 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 not addressed herein.
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Cayman Islands Taxation
According to Maples and Calder (Hong Kong) LLP, 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 after execution
brought within, the jurisdiction of the Cayman Islands. The Cayman Islands is not party to any double tax treaty with any country that is applicable to
any payments made to or by us.
We have obtained an undertaking from the Financial Secretary of the Cayman Islands that, in accordance with section 6 of the Tax Concessions
Act of the Cayman Islands, for a period of 20 years from December 12, 2019, no law which is enacted in the Cayman Islands imposing any tax to be
levied on profits, income, gains or appreciations shall apply to us or our operations and, in addition, no tax to be levied on profits, income, gains or
appreciations or which is in the nature of estate duty or inheritance tax shall be payable (i) on or in respect of the shares, debentures or other obligations
of our company or (ii) by way of the withholding in whole or in part of any relevant payment as defined in section 6(3) of the Tax Concessions Act of
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% may be imposed on dividends that non-PRC resident enterprise holders of our ADSs receive from us and on gains realized on
their sale or other disposition of ADSs, if such income is considered as income derived from within China. See “Item 3. Key Information — D. Risk
factors — Risks Relating to Our Corporate Structure — Our PRC subsidiaries are subject to restrictions on paying dividends or making other payments
to us while our consolidated affiliated Chinese entities can only make payments to us in accordance with the contractual arrangements, which may
restrict our ability to satisfy our liquidity requirements.”
U.S. Federal Income Tax Considerations
The following discussion is a summary of U.S. federal income tax considerations generally applicable to the ownership and disposition of our
ADSs or ordinary shares by a U.S. Holder (as defined below) that will hold our ADSs or ordinary shares as “capital assets” (generally, property held for
investment). This discussion is based on the U.S. Internal Revenue Code of 1986, as amended, or the Code, U.S. Treasury regulations promulgated
thereunder, or Regulations, published positions of the Internal Revenue Service, or the IRS, court decisions and other applicable authorities, all as
currently in effect as of the date hereof and all of which are subject to change or differing interpretations (possibly with retroactive effect).
This discussion does not describe all of the U.S. federal income tax considerations that may be applicable to U.S. Holders in light of their
particular circumstances or U.S. Holders subject to special treatment under U.S. federal income tax law, such as:
•
•
•
•
•
•
•
•
banks, insurance companies and other financial institutions;
tax-exempt entities;
real estate investment trusts;
regulated investment companies;
dealers or traders in securities;
certain former citizens or residents of the United States;
persons that elect to mark their securities to market;
persons holding our ADSs or ordinary shares as part of a “straddle,” conversion or other integrated transaction;
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•
•
persons that have a functional currency other than the U.S. dollar; and
persons that actually or constructively own 10% or more of our equity (by vote or value).
In addition, this discussion does not address any U.S. state or local or non-U.S. tax considerations or any U.S. federal estate, gift, alternative
minimum tax or Medicare tax on certain net investment income considerations. U.S. Holders should consult their tax advisors concerning the U.S.
federal income tax considerations to them in light of their particular situation as well as any considerations arising under the laws of any other taxing
jurisdiction.
For purposes of this discussion, a “U.S. Holder” is a beneficial owner of our ADSs or ordinary shares that is for U.S. federal income tax purposes:
•
•
•
•
an individual who is a citizen or resident of the United States;
a corporation (or other entity treated as a corporation for U.S. federal income tax purposes) created or organized in or under the laws of the
United States, any state thereof, or the District of Columbia;
an estate, the income of which is subject to U.S. federal income taxation regardless of its source; or
a trust that (i) is subject to the primary supervision of a court within the United States and the control of one or more U.S. persons or
(ii) has a valid election in effect under applicable Regulations to be treated as a U.S. person.
If a partnership (or other entity or arrangement treated as a partnership for U.S. federal income tax purposes) holds our ADSs or ordinary shares,
the U.S. federal income tax treatment of a partner will generally depend on the status of the partner and the activities of the partnership. Partners in a
partnership holding our ADSs or ordinary shares should consult their tax advisors regarding the tax considerations generally applicable to them of the
ownership and disposition of our 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 its terms. If a U.S. Holder holds ADSs, such holder
should be treated as the beneficial holder of the underlying ordinary shares represented by those ADSs for U.S. federal income tax purposes.
Distributions
Subject to the discussion below under “— Passive Foreign Investment Company Rules,” any cash distributions (including the amount of any PRC
tax withheld if we are deemed to be a PRC resident enterprise under PRC tax law) paid on our ADSs or ordinary shares out of our current or
accumulated earnings and profits, as determined under U.S. federal income tax principles, will generally be includible in a U.S. Holder’s gross income
as dividend income on the day actually or constructively received by such holder. Because we do not intend to determine our earnings and profits on the
basis of U.S. federal income tax principles, any distribution paid will generally be treated as dividend income for U.S. federal income tax purposes.
Dividends received on our ADSs or ordinary shares will not be eligible for the dividends received deduction allowed to corporations under the Code.
Individuals and other non-corporate recipients will be subject to tax at the lower capital gain tax rate applicable to “qualified dividend income,”
provided that certain conditions are satisfied, including that (i) our ADSs or ordinary shares are readily tradable on an established securities market in
the United States, or, in the event that we are deemed to be a PRC resident enterprise under the PRC tax law, we are eligible for the benefits of the
Treaty, (ii) we are neither a PFIC nor treated as such with respect to a U.S. Holder (as discussed below) for the taxable year in which the dividend was
paid and the preceding taxable year, and (iii) certain holding period requirements are met. Our ADSs, but not our ordinary shares, are listed on the
Nasdaq Global Select Market so we anticipate that our ADSs should qualify as readily tradable on an established securities market in the United States,
although there can be no assurances in this regard. In the event that we are deemed to be a PRC resident enterprise under PRC tax law, a U.S. Holder
may be subject to PRC withholding taxes on dividends paid on our ADSs or ordinary shares. If we are deemed to be a PRC resident enterprise, we may,
however, be eligible for the benefits of the Treaty. If we are eligible for such benefits, dividends we pay on our ordinary shares, regardless of whether
such shares are represented by our ADSs, would be eligible for the reduced rates of taxation applicable to qualified dividend income, as discussed
above.
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For U.S. foreign tax credit purposes, dividends will generally be treated as income from foreign sources and will generally constitute passive
category income. Depending on a U.S. Holder’s particular circumstances, such holder may be eligible, subject to a number of complex limitations, to
claim a foreign tax credit in respect of any foreign withholding taxes imposed on dividends received on our ADSs or ordinary shares. If a U.S. Holder
does not elect to claim a foreign tax credit for foreign tax withheld, such holder is permitted instead to claim a deduction, for U.S. federal income tax
purposes, for the foreign tax withheld, but only for a year in which such holder elects to do so for all creditable foreign income taxes. The rules
governing the foreign tax credit are complex. U.S. Holders should consult their tax advisors regarding the availability of the foreign tax credit under
their particular circumstances.
Sale or Other Taxable Dispositions
Subject to discussion below under “— Passive Foreign Investment Company Rules,” a U.S. Holder will generally recognize capital gain or loss
upon the sale or other taxable disposition of our ADSs or ordinary shares in an amount equal to the difference, if any, between the amount realized upon
the disposition and such holder’s adjusted tax basis in such ADSs or ordinary shares. Any capital gain or loss will be long-term capital gain or loss if the
U.S. Holder held the ADSs or ordinary shares for more than one year and will generally be U.S.-source gain or loss for U.S. foreign tax credit purposes.
In the event that we are deemed to be a PRC resident enterprise under PRC tax law and gain from the disposition of the ADSs or ordinary shares is
subject to tax in China, such gain may be treated as PRC-source gain for U.S. foreign tax credit purposes under the Treaty. Pursuant to recently issued
U.S. Treasury Regulations, however, if a U.S. Holder is not eligible for the benefits of the Treaty or does not elect to apply the Treaty, then such holder
may not be able to claim a foreign tax credit arising from any PRC tax imposed on the disposition of the ADSs or common shares. The deductibility of a
capital loss may be subject to limitations. U.S. Holders should consult their tax advisors regarding the tax considerations if a foreign tax is imposed on a
disposition of our ADSs or ordinary shares, including the availability of the foreign tax credit under their particular circumstances.
Passive Foreign Investment Company Rules
A non-U.S. corporation, such as our company, will be classified as a PFIC for U.S. federal income tax purposes for any taxable year, if either
(i) 75% or more of its gross income for such year consists of certain types of “passive” income or (ii) 50% or more of the value of its assets (determined
on the basis of a quarterly average) during such year produce or are held for the production of passive income. Passive income generally includes
dividends, interest, royalties, rents, annuities, net gains from the sale or exchange of property producing such income and net foreign currency gains. For
this purpose, cash is categorized as a passive asset and the company’s unbooked intangibles associated with active business activity are taken into
account as a non-passive asset. 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.
Although the law in this regard is not entirely clear, we treat our consolidated affiliated Chinese entities as being owned by us for U.S. federal
income tax purposes because we control their management decisions and we are entitled to substantially all of their economic benefits and, as a result,
we consolidate their results of operations in our consolidated U.S. GAAP financial statements. If it were determined, however, that we are not the owner
of our consolidated affiliated Chinese entities for U.S. federal income tax purposes, we would likely be treated as a PFIC for our current taxable year
and any subsequent taxable years.
Assuming we are the owner of our consolidated affiliated Chinese entities for U.S. federal income tax purposes, based on our income and assets,
and the value of our ADSs, we do not believe that we were classified as a PFIC for the taxable year ending December 31, 2021 and we do not expect to
be a PFIC for the foreseeable future. Although we do not anticipate becoming a PFIC, changes in the nature of our income or assets or the value of our
ADSs may cause us to become a PFIC for the current or any subsequent taxable year. Recent fluctuations in the market price of our ADSs or ordinary
shares increased our risk of becoming a PFIC. The market price of the ADSs and ordinary shares may continue to fluctuate considerably; consequently,
we cannot assure you of our PFIC status for any taxable year. Under circumstances where revenues from activities that produce passive income
significantly increase relative to our revenues from activities that produce non-passive income, or where we determine not to expend significant amounts
of cash for working capital or other purposes, our risk of becoming classified as a PFIC may substantially increase.
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If we are a PFIC for any taxable year during which a U.S. Holder holds our ADSs, or ordinary shares, such holder will be subject to special tax
rules with respect to any “excess distribution” that such holder receives and any gain such holder realizes from a sale or other disposition (including a
pledge) of our ADSs or ordinary shares, unless such holder makes a “mark-to-market” election as discussed below. Distributions a U.S. Holder receives
in a taxable year that are greater than 125% of the average annual distributions such holder received during the shorter of the three preceding taxable
years or such holder’s holding period for the ADSs or ordinary shares will be treated as an excess distribution. Under these special tax rules:
•
•
•
the excess distribution or gain will be allocated ratably over such holder’s holding period for the ADSs or ordinary shares;
amounts allocated to the current taxable year, and any taxable years in such holder’s holding period prior to the first taxable year in which
we are classified as a PFIC, or a pre-PFIC year, will be taxable as ordinary income; and
amounts allocated to each prior taxable year, other than a pre-PFIC year, will be subject to tax at the highest tax rate in effect applicable to
such holder for that year, and such amounts will be increased by an additional tax equal to interest on the resulting tax deemed deferred
with respect to such years.
If we are a PFIC for any taxable year during which a U.S. Holder holds our ADSs or ordinary shares and any of our non-U.S. subsidiaries are also
PFICs, such holder will be treated as owning a proportionate amount (by value) of the shares of each such non-U.S. subsidiary classified as a PFIC for
purposes of the application of these rules.
Alternatively, a U.S. Holder of “marketable stock” (as defined below) in a PFIC may make a mark-to-market election for such stock of a PFIC to
elect out of the tax treatment discussed in the two preceding paragraphs. If a U.S. Holder makes a valid mark-to-market election for the ADSs, such
holder will include in income each year an amount equal to the excess, if any, of the fair market value of the ADSs as of the close of such holder’s
taxable year over such holder’s adjusted basis in such ADSs. The U.S. Holder will be allowed a deduction for the excess, if any, of the adjusted basis of
the ADSs over their fair market value as of the close of the taxable year. However, deductions will be allowable only to the extent of any net
mark-to-market gains on the ADSs included in the U.S. Holder’s income for prior taxable years. Amounts included in the U.S. Holder’s income under a
mark-to-market election, as well as gain on the actual sale or other disposition of the ADSs, will be treated as ordinary income. Ordinary loss treatment
will also apply to the deductible portion of any mark-to-market loss on the ADSs, as well as to any loss realized on the actual sale or disposition of the
ADSs, to the extent that the amount of such loss does not exceed the net mark-to-market gains previously included for such ADSs. A U.S. Holder’s
basis in the ADSs will be adjusted to reflect any such gain or loss amounts. If a U.S. Holder makes a valid mark-to-market election, and we
subsequently cease to be classified as a PFIC, such holder will not be required to take into account the mark-to-market income or loss described above
during any period that we are not classified as a PFIC.
The mark-to-market election is available only for “marketable stock,” which is 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 Regulations. Our ADSs are
listed on the Nasdaq Global Select Market, which is a qualified exchange for these purposes, and, consequently, assuming that the ADSs are regularly
traded, it is expected that the mark-to-market election would be available to U.S. Holders of ADSs (but not our ordinary shares) if we are or become a
PFIC.
Because, as a technical matter, a mark-to-market election cannot be made for any lower-tier PFICs that we may own, a U.S. Holder may continue
to be subject to the PFIC rules with respect to such holder’s indirect interest in any investments held by us that are treated as an equity interest in a PFIC
for U.S. federal income tax purposes.
We do not intend to provide the information necessary for U.S. Holders to make qualified electing fund elections in the event that we are classified
as a PFIC.
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If we are classified as a PFIC, a U.S. Holder must file an annual report with the IRS. U.S. Holders should consult their tax advisors concerning the
U.S. federal income tax considerations of owning and disposing of our ADSs or ordinary shares if we are or become a PFIC, including the unavailability
of a qualified electing fund election, the possibility of making a mark-to-market election and the annual PFIC filing requirements, if any.
F. Dividends and Paying Agents
Not applicable.
G. Statement by Experts
Not applicable.
H. Documents on Display
We are subject to the periodic reporting and other informational requirements of the Exchange Act. Under the Exchange Act, we are required to
file reports and other information with SEC. Specifically, we are required to file annually a Form 20-F within four months after the end of each fiscal
year. Copies of reports and other information, when so filed, may be inspected without charge and may be obtained at prescribed rates at SEC’s public
reference room located at Room 1580, 100F Street, NE, Washington, D.C. 20549. The public may obtain information regarding the Washington, D.C.
Public Reference Room by calling the Commission at 1-800-SEC-0330. SEC also maintains a website at www.sec.gov that contains reports, proxy and
information statements, and other information regarding registrants that make electronic filings with SEC using its EDGAR system. As a foreign private
issuer, we are exempt from the rules under the Exchange Act prescribing the furnishing and content of quarterly reports and proxy statements, and
officers, directors and principal shareholders are exempt from the reporting and short-swing profit recovery provisions contained in Section 16 of the
Exchange Act.
Our consolidated financial statements have been prepared in accordance with U.S. GAAP.
We will furnish our shareholders with annual reports, which will include a review of operations and annual audited consolidated financial
statements prepared in conformity with U.S. GAAP.
I. Subsidiary Information
Not applicable.
ITEM 11.
QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
Interest Rate Risk. Our exposure to interest rate risk primarily relates to interest income generated by bank deposit and short-term investment, as
well as interest expenses associated with floating rate based bank borrowings and syndicated loans. For information about these notes and bank
borrowings, see “Item 5. Operating and Financial Review and Prospects— B. Liquidity and Capital Resources.” We have used interest swap contracts to
hedge our exposure to interest rate risk. Based on our cash balance as of December 31, 2021, a one basis point decrease in interest rates would result in
an RMB6 million (US$1 million) decrease in our interest income on an annual basis. Our future interest income may fluctuate in line with changes in
interest rates. We have not used derivative financial instruments to reduce the risk for the fixed rate based bank borrowings. We have not been exposed
to nor do we anticipate being exposed to material risks due to changes in interest rates for the fixed rate based bank borrowings.
Foreign Exchange Risk. The majority of our revenues are denominated in Renminbi. While a portion of our financial assets, financial liabilities
and dividend payments are denominated in U.S. dollars, we may use foreign exchange spot, forwards, or other contracts to hedge our exposure to
foreign currency risk where we deem necessary. Any significant revaluation of Renminbi against U.S. dollar may adversely affect our cash flow,
earnings, and financial position, and the value of, and any dividends payable on, our ordinary shares and ADSs. In 2021, foreign exchange gain
accounted for less than 1% of our net loss. As of December 31, 2021, a 1% strengthening or weakening of Renminbi against U.S. dollars would have
increased or decreased our net loss by 0.5%. See “Item 3. Key Information— D. Risk Factors—Risks Relating to Doing Business in China—Future
movements in exchange rates between U.S. dollars and Renminbi may adversely affect the value of our ordinary shares or ADSs.”
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Investment Risk. As of December 31, 2021, our equity method investments totaled US$3.0 billion. We periodically review our investments for
impairment. Unrealized gains on transactions between the affiliated entity and us are eliminated to the extent of our interest in the affiliated entity;
unrealized losses are also eliminated unless the transaction provides evidence of an impairment of the asset transferred. We are unable to control these
factors and an impairment charge recognized by us will impact our operating results and financial position. As of December 31, 2021, our remaining
investments were mainly equity security investments measured at fair market value and time deposits and financial products in commercial banks, and
the financial reporting risks associated with these investments are not considered significant and particularly sensitive to management judgements.
ITEM 12.
DESCRIPTION OF SECURITIES OTHER THAN EQUITY SECURITIES
A. Debt Securities
Not applicable.
B. Warrants and Rights
Not applicable.
C. Other Securities
Not applicable.
D. American Depositary Shares
Fees paid by our ADS holders
The Bank of New York Mellon, the depositary of our ADS program, collects its fees for delivery and surrender of ADSs directly from investors
depositing shares or surrendering ADSs for the purpose of withdrawal or from intermediaries acting for them. The depositary collects fees for making
distributions to investors by deducting those fees from the amounts distributed or by selling a portion of distributable property to pay the fees. The
depositary may collect its annual fee for depositary services by deducting from cash distributions or by directly billing investors or by charging the
book-entry system accounts of participants acting for them. The depositary may generally refuse to provide fee-attracting services until its fees for those
services are paid.
Persons depositing or withdrawing shares must pay:
$ 5.00 (or less) per 100 ADSs (or portion of 100 ADSs)
For:
☐ Issuance of ADSs, including issuances resulting from a distribution of
shares or rights or other property
☐ Cancellation of ADSs for the purpose of withdrawal, including if the
deposit agreement terminates
$ 0.02 (or less) per ADS
☐ Any cash distribution to ADS registered holders
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
☐ Distribution of securities distributed to holders of deposited securities
which are distributed by the depositary to ADS registered holders
$ 0.02 (or less) per ADSs per calendar year
☐ Depositary services
Registration or transfer fees
Expenses of the depositary
☐ 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
☐ Cable, telex and facsimile transmissions (when expressly provided in
the deposit agreement)
☐ Converting foreign currency to U.S. dollars
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
☐ As necessary
Any charges incurred by the depositary or its agents for servicing the
deposited securities
☐ As necessary
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Fees and Payments from the Depositary to Us
We expect to receive from the depositary a reimbursement of approximately US$6 million, net of withholding tax, for our continuing annual stock
exchange listing fees and our expenses incurred in connection with investor relationship programs for 2021. In addition, the depositary has agreed to
reimburse us annually for our expenses incurred in connection with investor relationship programs in the future. The amount of such reimbursements is
subject to certain limits.
Dealings and Settlement of Shares in Hong Kong
Our ordinary shares now trade on the Hong Kong Stock Exchange in board lots of 50 ordinary shares. Dealings in our ordinary shares on the Hong
Kong Stock Exchange will be conducted in Hong Kong dollars.
The transaction costs of dealings in our shares on the Hong Kong Stock Exchange include:
•
•
•
•
•
•
•
•
Hong Kong Stock Exchange trading fee of 0.005% of the consideration of the transaction, charged to each of the buyer and seller;
SFC transaction levy of 0.0027% of the consideration of the transaction, charged to each of the buyer and seller;
trading tariff of HK$0.50 on each and every purchase or sale transaction. The decision on whether or not to pass the trading tariff onto
investors is at the discretion of brokers;
transfer deed stamp duty of HK$5.00 per transfer deed (if applicable), payable by the seller;
ad valorem stamp duty at a total rate of 0.2% of the value of the transaction, with 0.1% payable by each of the buyer and the seller;
stock settlement fee, which is currently 0.002% of the gross transaction value, subject to a minimum fee of HK$2.00 and a maximum fee
of HK$100.00 per side per trade;
brokerage commission, which is freely negotiable with the broker (other than brokerage commissions for IPO transactions which are
currently set at 1% of the subscription or purchase price and will be payable by the person subscribing for or purchasing the securities);
and
the Hong Kong share registrar will charge between HK$2.50 to HK$20, depending on the speed of service (or such higher fee as may from
time to time be permitted under the Hong Kong Listing Rules), for each transfer of Shares from one registered owner to another, each share
certificate canceled or issued by it and any applicable fee as stated in the share transfer forms used in Hong Kong.
Investors must settle their trades executed on the Hong Kong Stock Exchange through their brokers directly or through custodians. For an investor
who has deposited their ordinary shares in their stock account or in their designated CCASS participant’s stock account maintained with CCASS,
settlement will be effected in CCASS in accordance with the General Rules of CCASS and CCASS Operational Procedures in effect from time to time.
For an investor who holds the physical certificates, settlement certificates and the duly executed transfer forms must be delivered to their broker or
custodian before the settlement date.
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Exchanges Between Shares Trading in Hong Kong and ADSs
In connection with the listing of our ordinary shares on the Hong Kong Stock Exchange, we have established a branch register of members in
Hong Kong, or the Hong Kong Share Register, which is maintained by our Hong Kong Share Registrar, Computershare Hong Kong Investor Services
Limited. Our principal register of members, or the Cayman share register, continues to be maintained by our principal share registrar, Maples Fund
Services (Cayman) Limited.
All ordinary shares offered in the Global Offering are registered on the Hong Kong Share Register in order to be listed and traded on the Hong
Kong Stock Exchange. As described in further detail below, holders of ordinary shares registered on the Hong Kong Share Register are able to exchange
these shares into ADSs, and vice versa.
Our ADSs
ADSs representing our ordinary shares are traded on Nasdaq. Dealings in ADSs on Nasdaq are conducted in U.S. dollars.
ADSs may be held either:
•
•
directly: (i) by having an American Depositary Receipt, or ADR, which is a certificate evidencing a specific number of ADSs registered in
the holder’s name; or (ii) by having uncertified ADSs registered in the holder’s name; or
indirectly, by holding a security entitlement in ADSs through a broker or other financial institution that is a direct or indirect participant in
The Depository Trust Company, also called DTC.
The depositary for the ADSs is The Bank of New York Mellon, whose office is located at 240 Greenwich Street, New York, New York 10286,
United States.
Depositing ordinary shares trading in Hong Kong for delivery of ADSs
An investor who holds ordinary shares registered in Hong Kong and who intends to exchange them for ADSs to trade on Nasdaq must deposit or
have his or her broker deposit the ordinary shares with the depositary’s Hong Kong custodian, The Hong Kong and Shanghai Banking Corporation
Limited, Hong Kong, or the custodian, in exchange for ADSs.
A deposit of ordinary shares in exchange for ADSs involves the following procedures:
•
•
•
If ordinary shares have been deposited with CCASS, the investor must transfer ordinary shares to the depositary’s account with the
custodian within CCASS by following the CCASS procedures for transfer and submit and deliver a duly completed and signed ADS
delivery form to the custodian via his or her broker.
If ordinary shares are held outside CCASS, the investor must arrange for the deposit of his or her ordinary shares into CCASS and then
proceed as described above.
Upon payment of its fees and expenses and of any taxes or charges, such as stamp duties or stock transfer taxes or fees, if applicable, the
depositary will register the corresponding number of ADSs in the name(s) requested by an investor and will deliver the ADSs as instructed
in the ADS delivery form.
For ordinary shares deposited in CCASS, under normal circumstances, the above steps generally require two business days, provided that the
investor has provided timely and complete instructions. For ordinary shares held outside CCASS in physical form, the above steps may take 14 business
days, or more, to complete. Temporary delays may arise. For example, the transfer books of the depositary may from time to time be closed to ADS
issuances. The investor will be unable to trade the ADSs until the procedures are completed.
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Surrender of ADSs for delivery of ordinary shares trading in Hong Kong
An investor who holds ADSs and wishes to receive ordinary shares that trade on the Hong Kong Stock Exchange must surrender the ADSs the
investor holds and withdraw ordinary shares from the ADS program and cause his or her broker or other financial institution to trade such ordinary
shares on the Hong Kong Stock Exchange.
An investor that holds ADSs indirectly through a broker or other financial institution should follow the procedure of the broker or financial
institution and instruct the broker to arrange for surrender of the ADSs, and transfer of the underlying ordinary shares from the depositary’s account with
the custodian within the CCASS system to the investor’s Hong Kong stock account.
For investors holding ADSs directly, the following steps must be taken:
•
•
•
To withdraw ordinary shares from the ADS program, an investor who holds ADSs may turn in such ADSs at the office of the depositary
(and the applicable ADR(s) if the ADSs are held in certificated form), and send an instruction to cancel such ADSs to the depositary.
Upon payment or net of its fees and expenses and of any taxes or charges, such as stamp duties or stock transfer taxes or fees, if applicable,
the depositary will instruct the custodian to deliver ordinary shares underlying the canceled ADSs to the CCASS account designated by an
investor.
If an investor prefers to receive shares outside CCASS, he or she must so indicate in the instruction delivered to the depositary.
For ordinary shares to be received in CCASS, under normal circumstances, the above steps generally require two business days, provided that the
investor has provided timely and complete instructions. For ordinary shares to be received outside CCASS in physical form, the above steps may take 14
business days, or more, to complete. The investor will be unable to trade the ordinary shares on the Hong Kong Stock Exchange until the procedures are
completed.
Temporary delays may arise. For example, the transfer books of the depositary may from time to time be closed to ADS cancelations.
Depositary requirements
Before the depositary delivers ADSs or permits withdrawal of ordinary shares, the depositary may require:
•
•
production of satisfactory proof of the identity and genuineness of any signature or other information it deems necessary; and
compliance with procedures it may establish, from time to time, consistent with the deposit agreement, including completion and
presentation of transfer documents.
The depositary may refuse to deliver, transfer, or register issuances, transfers and cancelations of ADSs generally when the transfer books of the
depositary or our Hong Kong share registrar are closed or at any time if the depositary or we determine it advisable to do so.
All costs attributable to the transfer of ordinary shares to effect a withdrawal from or deposit of ordinary shares into the ADS program will be
borne by the investor requesting the transfer or deposit. In particular, holders of ordinary shares and ADSs should note that the Hong Kong Share
Registrar will charge between HK$2.50 to HK$20, depending on the speed of service (or such higher fee as may from time to time be permitted under
the Hong Kong Listing Rules), for each transfer of ordinary shares from one registered owner to another, each share certificate canceled or issued by it
and any applicable fee as stated in the share transfer forms used in Hong Kong. In addition, holders of ordinary shares and ADSs must pay up to
US$5.00 per 100 ADSs (or portion thereof) for each issuance of ADSs and each cancelation of ADSs, as the case may be, in connection with the deposit
of ordinary shares into, or withdrawal of ordinary shares from, the ADS facility.
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ITEM 13.
DEFAULTS, DIVIDEND ARREARAGES AND DELINQUENCIES
None.
PART II.
ITEM 14.
MATERIAL MODIFICATIONS TO THE RIGHTS OF SECURITY HOLDERS AND USE OF PROCEEDS
Use of Proceeds
The following “Use of Proceeds” information relates to the registration statement on Form F-3ASR (File Number 333-233938) and prospectus
supplement filed on April 13, 2021 for our public offering of our ordinary shares in connection with the listing on the Hong Kong Stock Exchange in
April 2021. The public offering closed in April 2021. J.P. Morgan Securities (Asia Pacific) Limited, China International Capital Corporation Hong Kong
Securities Limited and Goldman Sachs (Asia) L.L.C. are the joint representatives of the underwriters for our public offering. We offered and sold an
aggregate of 36,380,900 ordinary shares at a public offering price of HK$268.00 per ordinary share, taking into account the ADSs sold upon the exercise
of the over-allotment option by our underwriters. We raised net proceeds of HK$9.6 billion from our public offering, after deducting underwriting fees
and other offering expenses payable by us.
For the period from the closing of our public offering to December 31, 2021, we used approximately HK$1.0 billion of the net proceeds from our
public offering for general corporate purpose. We still intend to use the remaining portion of the proceeds as disclosed in our registration statement of
our public offering.
ITEM 15.
CONTROLS AND PROCEDURES
Disclosure Controls and Procedures
As required by Rule 13a-15(b) under the Exchange Act, our management, including our chief executive officer, Jane Jie Sun, and our chief
financial officer, Cindy Xiaofan Wang, has performed an assessment of the effectiveness of our disclosure controls and procedures, as that term is
defined in Rules 13a-15(e) of the Exchange Act, as of the end of the period covered by this annual report. Based on that assessment, our management
has concluded that our disclosure controls and procedures were effective as of December 31, 2021.
Management’s Annual Report on Internal Control over Financial Reporting
Our management is responsible for establishing and maintaining adequate internal control over financial reporting as defined in
Rules 13a-15(f) and 15d-15(f) under the Securities Exchange Act of 1934, as amended. Our internal control over financial reporting is a process
designed to provide reasonable assurance regarding the reliability of our financial reporting and the preparation of financial statements for external
purposes in accordance with U.S. GAAP and includes those policies and procedures that (1) pertain to the maintenance of records that, in reasonable
detail, accurately and fairly reflect the transactions and dispositions of the assets of our company; (2) provide reasonable assurance that transactions are
recorded as necessary to permit preparation of consolidated financial statements in accordance with U.S. GAAP, and that receipts and expenditures of
our company are being made only in accordance with authorizations of our management and directors; and (3) provide reasonable assurance regarding
prevention or timely detection of the unauthorized acquisition, use or disposition of our company’s assets that could have a material effect on the
consolidated financial statements. Because of its inherent limitations, internal control over financial reporting may not prevent or detect misstatements.
Also, projections of any evaluation of effectiveness to future periods are subject to the risks that controls may become inadequate because of changes in
conditions, or that the degree of compliance with the policies or procedures may deteriorate.
Our management conducted an assessment of the effectiveness of our company’s internal control over financial reporting as of December 31, 2021
based on the framework in Internal Control — Integrated Framework (2013) issued by the Committee of Sponsoring Organizations of the Treadway
Commission. Based on this assessment, our management concluded that our internal control over financial reporting was effective as of December 31,
2021.
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PricewaterhouseCoopers Zhong Tian LLP, our independent registered public accounting firm, audited the effectiveness of internal control over
financial reporting as of December 31, 2021, as stated in their report.
Attestation Report of the Registered Public Accounting Firm
PricewaterhouseCoopers Zhong Tian LLP, our independent registered public accounting firm, audited the effectiveness of internal control over
financial reporting as of December 31, 2021, as stated in their report that appears on page F-2 of this annual report.
Changes in Internal Control over Financial Reporting
As required by Rule 13a-15(d), under the Exchange Act, our management, including our chief executive officer and our chief financial officer,
also conducted an assessment of our internal control over financial reporting to determine whether any changes occurred during the period covered by
this report have materially affected, or are reasonably likely to materially affect, our internal control over financial reporting. Based on that assessment,
it has been determined that there has been no such change during the period covered by this annual report.
ITEM 16A. AUDIT COMMITTEE FINANCIAL EXPERT
See “Item 6. Directors, Senior Management and Employees — C. Board Practices.”
ITEM 16B. CODE OF ETHICS
Our board of directors has adopted a code of ethics that applies to our directors, officers, employees and agents, including certain provisions that
specifically apply to our chief executive officer, chief financial officer, financial controller, vice presidents and any other persons who perform similar
functions for us, as amended and restated from time to time. We have filed our currently effective code of business conduct and ethics as an exhibit to
our annual report on Form 20-F, and posted the code on our investor relations website at investors.trip.com.
ITEM 16C. PRINCIPAL ACCOUNTANT FEES AND SERVICES
The following table sets forth the aggregate fees by categories specified below in connection with certain professional services rendered by
PricewaterhouseCoopers Zhong Tian LLP, our principal accountant, for the periods indicated.
For the Year Ended December 31,
Audit Fees(1)
Audit Related Fees(2)
Tax Fees(3)
All Other Fees(4)
2021
2020
RMB
US$
RMB
20,684,454 20,070,998 3,149,578
62,769
400,000
3,670,983
776,637 121,871
1,095,043
—
—
—
Notes:
(1)
(2)
(3)
(4)
“Audit Fees” represent the aggregate fees incurred for each of the fiscal years listed for professional services rendered by our principal accountant for the interim review of quarterly
financial statements and the audit of our annual financial statements and other statutory audits of our subsidiaries.
“Audit Related Fees” represent the aggregate fees incurred in each of the fiscal years listed for assurance and related services that are provided by our principal accountant that are
reasonably related to the performance of the audit or review of our financial statements and are not reported under “Audit Fees.”
“Tax Fees” represent the aggregate fees incurred in each of the fiscal years listed for professional services rendered by our principal accountant for tax compliance, tax advice and tax
planning.
“All Other Fees” represent the aggregate fees incurred in each of the fiscal years listed for services provided by our principal accountant, other than the services reported in (1), (2) and
(3).
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Our audit committee pre-approves all audit and permissible non-audit services provided by the principal accountant. These services may include
audit services, audit-related services and tax services, as well as, to a very limited extent, specifically designated non-audit services which, in the
opinion of the audit committee, will not impair the independence of the principal accountant. The principal accountant and our management are required
to report to the audit committee on the quarterly basis regarding the extent of services provided by the principal accountant in accordance with this
pre-approval.
ITEM 16D. EXEMPTIONS FROM THE LISTING STANDARDS FOR AUDIT COMMITTEES
None.
ITEM 16E.
PURCHASE OF EQUITY SECURITIES BY THE ISSUER AND AFFILIATED PURCHASERS
None.
ITEM 16F. CHANGE IN REGISTRANT’S CERTIFYING ACCOUNTANT
None.
ITEM 16G. CORPORATE GOVERNANCE
As a Cayman Islands company listed on Nasdaq, we are subject to the Nasdaq corporate governance listing standards. However, Nasdaq
rules permit a foreign private issuer like us to follow the corporate governance practices of its home country. Certain corporate governance practices in
the Cayman Islands, which is our home country, may differ significantly from the Nasdaq corporate governance listing standards. In lieu of (i) the
requirements of Rule 5605(b) of the Nasdaq Rules that a majority of a Nasdaq-listed company’s board of directors be independent directors as defined in
Rule 5605(a)(2), and (ii) the requirements of Rule 5635(c) of the Nasdaq Rules that shareholder approval be required prior to the issuance of securities
when a stock option or purchase plan is to be established or materially amended or other equity compensation arrangement made or materially amended,
pursuant to which stock may be acquired by officers, directors, employees, or consultants, we intend to follow our home country practices with respect
to the composition of our board of directors and approval for adoption and material amendment to our equity-based compensation plans. Our Cayman
Islands counsel has provided a letter to the Nasdaq Stock Market certifying that under Cayman Islands law, we are not required to follow or comply with
the requirements of the Rule 5600 series of the Nasdaq Rules (except for those rules that are required to be followed pursuant to Rule 5615(a)(3)).
Nasdaq has acknowledged the receipt of this letter.
Other than the home country practices described above, we are not aware of any significant ways in which our corporate governance practices
differ from those followed by U.S. domestic companies under the Nasdaq Rules.
ITEM 16H. MINE SAFETY DISCLOSURE
Not applicable.
ITEM 16I.
DISCLOSURE REGARDING FOREIGN JURISDICTIONS THAT PREVENT INSPECTIONS
Not applicable.
ITEM 17.
FINANCIAL STATEMENTS
We have elected to provide financial statements pursuant to Item 18.
PART III.
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ITEM 18.
FINANCIAL STATEMENTS
The consolidated financial statements for Trip.com Group Limited and its subsidiaries are included at the end of this annual report.
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ITEM 19.
EXHIBITS
Exhibit
Number
1.1
2.1
2.2*
2.3
2.4
2.5
2.6
2.7
2.8
2.9
2.10
Document
Third Amended and Restated Memorandum and Articles of Association of the Registrant adopted by the shareholders of the Registrant on
December 21, 2021 (incorporated by reference to Exhibit 3.1 to our Report of Foreign Private Issuer on Form 6-K furnished to the
Securities and Exchange Commission on December 21, 2021)
Specimen American Depositary Receipt of the Registrant (incorporated by reference to Form 424b3 (File No. 333-233932) filed with the
Securities and Exchange Commission on March 18, 2021)
Specimen Stock Certificate of the Registrant
Rights Agreement dated as of November 23, 2007 between the Registrant and The Bank of New York, as Rights Agent (incorporated by
reference to Exhibit 4.1 to our Report of Foreign Private Issuer on Form 6-K furnished to the Securities and Exchange Commission on
November 23, 2007)
First Amendment to the Rights Agreement dated as of August 7, 2014 between the Registrant and The Bank of New York, as Rights
Agent (incorporated by reference to Exhibit 4.1 to our Report of Foreign Private Issuer on Form 8-A/A furnished to the Securities and
Exchange Commission on August 8, 2014)
Second Amendment to the Rights Agreement dated as of August 7, 2014 between the Registrant and The Bank of New York, as Rights
Agent (incorporated by reference to Exhibit 4.2 to our Report of Foreign Private Issuer on Form 8-A/A furnished to the Securities and
Exchange Commission on August 8, 2014)
Third Amendment to the Rights Agreement dated as of May 29, 2015 between the Registrant and The Bank of New York, as Rights
Agent (incorporated by reference to Exhibit 4.3 to our Report of Foreign Private Issuer on Form 8-A/A furnished to the Securities and
Exchange Commission on June 4, 2015)
Fourth Amendment to the Rights Agreement dated as of October 26, 2015 between the Registrant and The Bank of New York, as Rights
Agent (incorporated by reference to Exhibit 4.3 to our Report of Foreign Private Issuer on Form 8-A/A furnished to the Securities and
Exchange Commission on October 27, 2015)
Fifth Amendment to the Rights Agreement dated as of December 23, 2015 between the Registrant and The Bank of New York, as Rights
Agent (incorporated by reference to Exhibit 4.3 to our Report of Foreign Private Issuer on Form 8-A/A furnished to the Securities and
Exchange Commission on December 23, 2015)
Sixth Amendment to the Rights Agreement dated as of August 30, 2019 between the Registrant and The Bank of New York, as Rights
Agent (incorporated by reference to Exhibit 4.1 to our Report of Foreign Private Issuer on Form 8-A/A furnished to the Securities and
Exchange Commission on November 14, 2019)
Seventh Amendment to the Rights Agreement dated as of November 13, 2019 between the Registrant and The Bank of New York, as
Rights Agent (incorporated by reference to Exhibit 4.2 to our Report of Foreign Private Issuer on Form 8-A/A furnished to the Securities
and Exchange Commission on November 14, 2019)
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Exhibit
Number
2.11
2.12*
4.1
4.2
4.3
4.4
4.5
4.6
4.7*
4.8*
4.9*
4.10*
4.11
4.12
Document
Deposit Agreement dated as of December 8, 2003, as amended and restated as of August 11, 2006, and as further amended and restated as
of December 3, 2007, among the Registrant, The Bank of New York as Depositary, and all Owners and Beneficial Owners from time to
time of American Depositary Shares issued thereunder (incorporated by reference to Exhibit 2.4 to our Annual Report on Form 20-F (File
No. 001-33853) filed with the Securities and Exchange Commission on April 29, 2008)
Description of Securities
Form of Indemnification Agreement with the Registrant’s directors and executive officers (incorporated by reference to Exhibit 10.2 to
our Registration Statement on Form F-1 (File No. 333-110455) filed with the Securities and Exchange Commission on November 13,
2003)
Translation of Form of Labor Contract for Employees of the Registrant’s subsidiaries in China (incorporated by reference to Exhibit 10.3
to our Registration Statement on Form F-1 (File No. 333-110455) filed with the Securities and Exchange Commission on November 13,
2003)
Employment Agreement between the Registrant and James Jianzhang Liang (incorporated by reference to Exhibit 10.4 to our Registration
Statement on Form F-1 (File No. 333-110455) filed with the Securities and Exchange Commission on November 13, 2003)
Employment and Confidentiality Agreement between the Registrant and Jane Jie Sun (incorporated by reference to Exhibit 4.5 to our
Annual Report on Form 20-F (File No. 000-50483) filed with the Securities and Exchange Commission on June 26, 2006)
Employment Agreement, between the Registrant and Min Fan (incorporated by reference to Exhibit 10.6 to our Registration Statement on
Form F-1 (File No. 333-110455) filed with the Securities and Exchange Commission on November 13, 2003)
Translation of Executed Form of Technical Consulting and Services Agreement between a wholly-owned subsidiary of the Registrant and
a consolidated affiliated Chinese entity of the Registrant, as currently in effect, and a schedule of all executed technical consulting and
services agreements adopting the same form in respect of a consolidated affiliated Chinese entity of the Registrant (incorporated by
reference to Exhibit 4.6 to our Annual Report on Form 20-F (File No. 001-33853) filed with the Securities and Exchange Commission on
April 9, 2020)
Translation of Executed Form of Loan Agreement between a wholly-owned subsidiary of the Registrant and shareholders of a
consolidated affiliated Chinese entity of the Registrant, as currently in effect, and a schedule of all executed loan agreements adopting the
same form in respect of a consolidated affiliated Chinese entity of the Registrant
Translation of Executed Form of Exclusive Call Option Agreement among a wholly-owned subsidiary of the Registrant, a consolidated
affiliated Chinese entity of the Registrant and a shareholder of the consolidated affiliated Chinese entity, as currently in effect, and a
schedule of all executed equity pledge agreements adopting the same form in respect of a consolidated affiliated Chinese entity of the
Registrant
Translation of Executed Form of Equity Pledge Agreement between a wholly-owned subsidiary of the Registrant and a shareholder of a
consolidated affiliated Chinese entity of the Registrant, as currently in effect, and a schedule of all executed equity pledge agreements
adopting the same form in respect of a consolidated affiliated Chinese entity of the Registrant
Translation of Executed Form of Power of Attorney by a shareholder of a consolidated affiliated Chinese entity of the Registrant, as
currently in effect, and a schedule of all executed power of attorney adopting the same form in respect of a consolidated affiliated Chinese
entity of the Registrant
Confidentiality and Non-Competition Agreement, effective as of September 10, 2003, between the Registrant and Qi Ji (incorporated by
reference to Exhibit 10.16 to our Registration Statement on Form F-1 (File No. 333-110455) filed with the Securities and Exchange
Commission on November 13, 2003)
Form of Director Agreement between the Registrant and its director (incorporated by reference to Exhibit 4.20 to our Annual Report on
Form 20-F filed with the Securities and Exchange Commission on May 11, 2004)
141
Table of Contents
Exhibit
Number
4.13
4.14
4.15
4.16
4.17
4.18
4.19
4.20
4.21
4.22
4.23
4.24
4.25
Document
Translation of State Land Use Right Assignment Contract dated February 25, 2008 between Nantong Land Resource Bureau and Ctrip
Information Technology (Nantong) Co., Ltd. (incorporated by reference to Exhibit 4.21 to our Annual Report on Form 20-F (File
No. 001-33853) filed with the Securities and Exchange Commission on April 29, 2008)
2007 Share Incentive Plan of the Registrant, as amended and restated as of November 17, 2008 (incorporated by reference to Exhibit 4.21
to our Annual Report on Form 20-F (File No. 001-33853) filed with the Securities and Exchange Commission on May 26, 2009)
Translation of State-Owned Construction Land Use Right Transfer Contract dated September 30, 2011 between Chengdu Ctrip
Information Technology Co., Ltd. and Chengdu Land Resources Bureau (incorporated by reference to Exhibit 4.30 to our Annual Report
on Form 20-F (File No. 001-33853) filed with the Securities and Exchange Commission on March 30, 2012)
Standstill Agreement dated as of October 26, 2015 between Baidu, Inc. and the Registrant (incorporated by reference to Exhibit 3 to
Schedule 13D (File No. 005-79455) filed by Baidu, Inc. with the Securities and Exchange Commission on November 4, 2015)
Registration Rights Agreement dated as of October 26, 2015 between Baidu Holdings Limited and the Registrant (incorporated by
reference to Exhibit 4 to Schedule 13D (File No. 005-79455) filed by Baidu, Inc. with the Securities and Exchange Commission on
November 4, 2015)
Framework Agreement for Treatment of Qunar Employee Shares and Equity Awards dated December 9, 2015 between the Registrant and
Qunar Cayman Islands Limited (incorporated by reference to Exhibit 4.51 to our Annual Report on Form 20-F (File No. 001-33853) filed
with the Securities and Exchange Commission on April 22, 2016)
Restated Exclusive Technical Consulting and Services Agreement dated March 23, 2016 between Beijing Qu Na Information Technology
Co., Ltd. and Beijing Qunar Software Technology Co., Ltd. (incorporated by reference to Exhibit 4.52 to our Annual Report on Form
20-F (File No. 001-33853) filed with the Securities and Exchange Commission on April 22, 2016)
Loan Agreement dated March 23, 2016 among Beijing Qunar Software Technology Co., Ltd., Hui Cao and Hui Wang (incorporated by
reference to Exhibit 4.53 to our Annual Report on Form 20-F (File No. 001-33853) filed with the Securities and Exchange Commission
on April 22, 2016)
Equity Option Agreement dated March 23, 2016 among Qunar Cayman Islands Limited, Beijing Qunar Software Technology Co., Ltd.,
Hui Cao, Hui Wang and Beijing Qu Na Information Technology Co., Ltd. (incorporated by reference to Exhibit 4.54 to our Annual Report
on Form 20-F (File No. 001-33853) filed with the Securities and Exchange Commission on April 22, 2016)
Equity Interest Pledge Agreement dated March 23, 2016 among Beijing Qunar Software Technology Co., Ltd., Hui Cao and Hui Wang
(incorporated by reference to Exhibit 4.55 to our Annual Report on Form 20-F (File No. 001-33853) filed with the Securities and
Exchange Commission on April 22, 2016)
Power of Attorney by Hui Cao and Hui Wang dated March 23, 2016 (incorporated by reference to Exhibit 4.56 to our Annual Report on
Form 20-F (File No. 001-33853) filed with the Securities and Exchange Commission on April 22, 2016)
Indenture dated September 12, 2016 constituting US$975 million 1.25% convertible senior notes due 2022 (incorporated by reference to
Exhibit 4.47 to our Annual Report on Form 20-F (File No. 001-33853) filed with the Securities and Exchange Commission on April 13,
2017)
Facility Agreement dated July 5, 2019 among the Registrant (as borrower), Bank of Communications Co., Ltd. Hong Kong Branch, The
Bank of East Asia, Limited, China Construction Bank (Asia) Corporation Limited, The HongKong and Shanghai Banking Corporation
Limited, The Korea Development Bank, Bank of China Limited (as mandated lead arrangers and bookrunners), and other parties thereto
(incorporated by reference to Exhibit 4.32 to our Annual Report on Form 20-F (File No. 001-33853) filed with the Securities and
Exchange Commission on April 9, 2020)
142
Table of Contents
Exhibit
Number
4.26
4.27
4.28
4.29
4.30
4.31
4.32*
8.1*
11.1*
12.1*
12.2*
13.1**
13.2**
15.1*
15.2*
15.3*
101.INS*
101.SCH*
101.CAL*
101.DEF*
101.LAB*
101.PRE*
104
Document
Registration Rights Agreement dated August 30, 2019 between the Registrant and MIH Internet SEA Private Limited (incorporated by
reference to Exhibit 99.2 to Schedule 13D (File No. 005-79455) filed by MIH Internet SEA Private Limited and Naspers Limited with
the Securities and Exchange Commission on September 5, 2019)
Cooperation Agreement dated August 30, 2019 among the Registrant, MIH Internet SEA Private Limited and Myriad International
Holdings B.V. (incorporated by reference to Exhibit 99.3 to Schedule 13D (File No. 005-79455) filed by MIH Internet SEA Private
Limited and Naspers Limited with the Securities and Exchange Commission on September 5, 2019)
Second Amended and Restated Global Share Incentive Plan (incorporated by reference to Exhibit 4.35 to our Annual Report on
Form 20-F (File No. 001-33853) filed with the Securities and Exchange Commission on April 9, 2020)
Facility Agreement dated April 3, 2020 among the Registrant (as borrower), Standard Chartered Bank (Hong Kong) Limited, Industrial
and Commercial Bank of China (Macau) Limited, and China Construction Bank (Asia) Corporation Limited (as original mandated lead
arrangers, bookrunners, and underwriters), and other parties thereto (incorporated by reference to Exhibit 4.36 to our Annual Report on
Form 20-F (File No. 001-33853) filed with the Securities and Exchange Commission on April 9, 2020)
Indenture dated July 20, 2020 constituting US$500 million 1.50% Exchangeable Senior Notes due 2027
Supplemental Indenture dated December 15, 2020 constituting US$500 million 1.50% Exchangeable Senior Notes due 2027
Facility Agreement dated October 18, 2021 among the Registrant (as borrower), Bank of China Limited and The HongKong and
Shanghai Banking Corporation Limited (as mandated lead arrangers and bookrunners), and other parties thereto
List of Significant Consolidated Entities of the Registrant
Code of Business Conduct and Ethics of the Registrant, as amended and restated as of April 19, 2021
Chief Executive Officer Certification Pursuant to Section 302 of the Sarbanes-Oxley Act of 2002
Chief Financial Officer Certification Pursuant to Section 302 of the Sarbanes-Oxley Act of 2002
Chief Executive Officer Certification Pursuant to Section 906 of the Sarbanes-Oxley Act of 2002
Chief Financial Officer Certification Pursuant to Section 906 of the Sarbanes-Oxley Act of 2002
Consent of Maples and Calder (Hong Kong) LLP
Consent of Commerce & Finance Law Offices
Consent of PricewaterhouseCoopers Zhong Tian LLP
Inline XBRL Instance Document—this instance document does not appear on the Interactive Data File because its XBRL tags are
embedded within the Inline XBRL document
Inline XBRL Taxonomy Extension Schema Document
Inline XBRL Taxonomy Extension Calculation Linkbase Document
Inline XBRL Taxonomy Extension Definition Linkbase Document
Inline XBRL Taxonomy Extension Label Linkbase Document
Inline XBRL Taxonomy Extension Presentation Linkbase Document
Cover Page Interactive Data File (embedded within the Inline XBRL document)
*
**
Filed with this annual report on Form 20-F.
Furnished with this annual report on Form 20-F.
143
Table of Contents
SIGNATURES
The registrant hereby certifies that it meets all of the requirements for filing its annual report on Form 20-F and that it has duly caused and
authorized the undersigned to sign this annual report on its behalf.
TRIP.COM GROUP LIMITED
By: /s/ Jane Jie Sun
Name: Jane Jie Sun
Title:
Chief Executive Officer and Director
Date: April 27, 2022
144
Table of Contents
TRIP.COM GROUP LIMITED
INDEX TO CONSOLIDATED FINANCIAL STATEMENTS
Report of Independent Registered Public Accounting Firm (PCAOB ID: 1424)
Consolidated Statements of Income/(Loss) and Comprehensive Income/(Loss) for the years ended December 31, 2019, 2020 and 2021
Consolidated Balance Sheets as of December 31, 2020 and 2021
Consolidated Statements of Shareholders’ Equity for the years ended December 31, 2019, 2020 and 2021
Consolidated Statements of Cash Flows for the years ended December 31, 2019, 2020 and 2021
Notes to the Consolidated Financial Statements
Page
F-2
F-5
F-6
F-7
F-10
F-12
F-1
Table of Contents
Report of Independent Registered Public Accounting Firm
To the Board of Directors and Shareholders of Trip.com Group Limited
Opinions on the Financial Statements and Internal Control over Financial Reporting
We have audited the accompanying consolidated balance sheets of Trip.com Group Limited and its subsidiaries (the “Company”) as of
December 31, 2021 and 2020, and the related consolidated statements of income/(loss) and comprehensive income/(loss), of shareholders’ equity and of
cash flows for each of the three years in the period ended December 31, 2021, including the related notes (collectively referred to as the “consolidated
financial statements”). We also have audited the Company’s internal control over financial reporting as of December 31, 2021, based on criteria
established in Internal Control—Integrated Framework (2013) issued by the Committee of Sponsoring Organizations of the Treadway Commission
(COSO).
In our opinion, the consolidated financial statements referred to above present fairly, in all material respects, the financial position of the Company
as of December 31, 2021 and 2020, and the results of its operations and its cash flows for each of the three years in the period ended December 31, 2021
in conformity with accounting principles generally accepted in the United States of America. Also in our opinion, the Company maintained, in all
material respects, effective internal control over financial reporting as of December 31, 2021, based on criteria established in Internal Control—
Integrated Framework (2013) issued by the COSO.
Change in Accounting Principle
As discussed in Note 2 to the consolidated financial statements, the Company changed the manner in which it accounts for credit losses on certain
financial instruments in 2020.
Basis for Opinions
The Company’s management is responsible for these consolidated financial statements, for maintaining effective internal control over financial
reporting, and for its assessment of the effectiveness of internal control over financial reporting, included in Management’s Annual Report on Internal
Control over Financial Reporting appearing under Item 15. Our responsibility is to express opinions on the Company’s consolidated financial statements
and on the Company’s internal control over financial reporting based on our audits. We are a public accounting firm registered with the Public Company
Accounting Oversight Board (United States) (PCAOB) and are required to be independent with respect to the Company in accordance with the U.S.
federal securities laws and the applicable rules and regulations of the Securities and Exchange Commission and the PCAOB.
We conducted our audits in accordance with the standards of the PCAOB. Those standards require that we plan and perform the audits to obtain
reasonable assurance about whether the consolidated financial statements are free of material misstatement, whether due to error or fraud, and whether
effective internal control over financial reporting was maintained in all material respects.
F-2
Table of Contents
Our audits of the consolidated financial statements included performing procedures to assess the risks of material misstatement of the consolidated
financial statements, whether due to error or fraud, and performing procedures that respond to those risks. Such procedures included examining, on a test
basis, evidence regarding the amounts and disclosures in the consolidated financial statements. Our audits also included evaluating the accounting
principles used and significant estimates made by management, as well as evaluating the overall presentation of the consolidated financial statements.
Our audit of internal control over financial reporting included obtaining an understanding of internal control over financial reporting, assessing the risk
that a material weakness exists, and testing and evaluating the design and operating effectiveness of internal control based on the assessed risk. Our
audits also included performing such other procedures as we considered necessary in the circumstances. We believe that our audits provide a reasonable
basis for our opinions.
Definition and Limitations of Internal Control over Financial Reporting
A company’s internal control over financial reporting is a process designed to provide reasonable assurance regarding the reliability of financial
reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles. A company’s
internal control over financial reporting includes those policies and procedures that (i) pertain to the maintenance of records that, in reasonable detail,
accurately and fairly reflect the transactions and dispositions of the assets of the company; (ii) provide reasonable assurance that transactions are
recorded as necessary to permit preparation of financial statements in accordance with generally accepted accounting principles, and that receipts and
expenditures of the company are being made only in accordance with authorizations of management and directors of the company; and (iii) provide
reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use, or disposition of the company’s assets that could have a
material effect on the financial statements.
Because of its inherent limitations, internal control over financial reporting may not prevent or detect misstatements. Also, projections of any
evaluation of effectiveness to future periods are subject to the risk that controls may become inadequate because of changes in conditions, or that the
degree of compliance with the policies or procedures may deteriorate.
Critical Audit Matters
The critical audit matter communicated below is a matter arising from the current period audit of the consolidated financial statements that was
communicated or required to be communicated to the audit committee and that (i) relates to accounts or disclosures that are material to the consolidated
financial statements and (ii) involved our especially challenging, subjective, or complex judgments. The communication of critical audit matters does
not alter in any way our opinion on the consolidated financial statements, taken as a whole, and we are not, by communicating the critical audit matter
below, providing a separate opinion on the critical audit matter or on the accounts or disclosures to which it relates.
Valuation of investments classified under Level 3 in the fair value hierarchy
As described in Note 8 to the consolidated financial statements, as of December 31, 2021 the Company had investments of RMB3,354 million
classified under Level 3 in the fair value hierarchy (the “Level 3 Investments”). The fair values of the Level 3 Investments were determined by
management based on an income approach utilizing various unobservable inputs which required significant judgment by management with respect to
the assumptions and estimates for the revenue growth rate, weighted average cost of capital, lack of marketability discounts, expected volatility and
probability in equity allocation.
F-3
Table of Contents
The principal considerations for our determination that performing procedures relating to the valuation of the Level 3 Investments is a critical
audit matter are (i) the significant judgment by management with respect to the assumptions and estimates used in the determination of the fair values of
the Level 3 Investments, which in turn led to a high degree of auditor judgment, subjectivity, and effort in designing and applying procedures relating to
evaluating the reasonableness of management’s estimates and assumptions; and (ii) the audit effort involved the use of professionals with specialized
skill and knowledge.
Addressing the matter involved performing procedures and evaluating audit evidence in connection with forming our overall opinion on the
consolidated financial statements. These procedures included testing the effectiveness of controls relating to management’s determination of the fair
values of Level 3 investments, including controls over the development of the significant assumptions and estimates related to the fair value
measurements, including the revenue growth rate, weighted average cost of capital, lack of marketability discounts, expected volatility and probability
in equity allocation. These procedures also included, among others, reading the investment agreements, testing management’s process for developing the
fair value measurements of the Level 3 investments, evaluating the appropriateness of the income approach, testing the completeness, accuracy and
relevance of underlying data used in the model, and evaluating the significant assumptions and estimates used by management, including the revenue
growth rate, weighted average cost of capital, lack of marketability discounts, expected volatility and probability in equity allocation. Testing revenue
growth rate assumptions included reviewing management’s evaluation of the past performance of the investees’ businesses, benchmarking of peer
companies as well as economic and industry forecasts. Professionals with specialized skill and knowledge were used to assist in evaluating the
appropriateness of the Company’s valuation approach and the reasonableness of management’s assumptions for the weighted average cost of capital,
lack of marketability discounts, expected volatility and probability in equity allocation.
/s/ PricewaterhouseCoopers Zhong Tian LLP
Shanghai, the People’s Republic of China
April 27, 2022
We have served as the Company’s auditor since 2003.
F-4
Table of Contents
TRIP.COM GROUP LIMITED
CONSOLIDATED STATEMENTS OF INCOME/(LOSS) AND COMPREHENSIVE INCOME/(LOSS)
FOR THE YEARS ENDED DECEMBER 31, 2019, 2020 AND 2021
(In millions, except for share and per share data)
Revenues:
Accommodation reservation
Transportation ticketing
Packaged tours
Corporate travel
Others
Total revenues
Less: Sales tax and surcharges
Net revenues
Cost of revenues
Gross profit
Operating expenses:
Product development
Sales and marketing
General and administrative
Total operating expenses
Income/(loss) from operations
Interest income
Interest expense
Other income/(expense)
Income/(loss) before income tax expense and equity in income/(loss) of affiliates
Income tax expense
Equity in (loss)/income of affiliates
Net Income/(loss)
Net loss attributable to non-controlling interests
Accretion to redemption value of redeemable non-controlling interests
Net Income/(loss) attributable to Trip.com Group Limited
Net Income/(loss)
Other comprehensive (loss)/income:
Foreign currency translation
Unrealized securities holding gains/(losses), net of tax
Total comprehensive income/(loss)
Comprehensive loss attributable to non-controlling interests
Comprehensive income/(loss) attributable to Trip.com Group Limited
Earnings/(losses) per ordinary share (Note i)
— Basic
— Diluted
Earnings/(losses) per ADS
— Basic
— Diluted
Weighted average ordinary shares outstanding (Note i)
— Basic shares
— Diluted shares
Share-based compensation included in Operating expense above is as follows:
Product development
Sales and marketing
General and administrative
2019
RMB
2020
RMB
2021
RMB
2021
US$ (Note 2)
13,514
13,952
4,534
1,255
2,461
35,716
(50)
35,666
(7,372)
28,294
(10,670)
(9,295)
(3,289)
(23,254)
5,040
2,094
(1,677)
3,630
9,087
(1,742)
(347)
6,998
57
(44)
7,011
7,132
7,146
1,241
877
1,931
18,327
(11)
18,316
(4,031)
14,285
(7,667)
(4,405)
(3,636)
(15,708)
(1,423)
2,187
(1,716)
(273)
(1,225)
(355)
(1,689)
(3,269)
62
(40)
(3,247)
8,148
6,905
1,105
1,347
2,524
20,029
(6)
20,023
(4,598)
15,425
(8,992)
(4,922)
(2,922)
(16,836)
(1,411)
2,132
(1,565)
373
(471)
(270)
96
(645)
95
—
(550)
6,998
(3,269)
(645)
(289)
266
6,975
13
6,988
12.35
11.50
12.35
11.50
75
(178)
(3,372)
22
(3,350)
(5.40)
(5.40)
(5.40)
(5.40)
2
2
(641)
95
(546)
(0.87)
(0.87)
(0.87)
(0.87)
1,279
1,084
173
211
396
3,143
(1)
3,142
(721)
2,421
(1,411)
(772)
(459)
(2,642)
(221)
335
(246)
58
(74)
(42)
15
(101)
15
—
(86)
(101)
0
0
(101)
15
(86)
(0.14)
(0.14)
(0.14)
(0.14)
567,871,968 600,888,208 634,109,233 634,109,233
641,952,112 600,888,208 634,109,233 634,109,233
919
144
651
964
159
750
802
149
730
126
23
115
Note i: Basic and diluted earnings/(losses) per ordinary share and weighted average ordinary shares outstanding for the years ended December 31,
2019 and 2020 have been retrospectively adjusted for the Share Subdivision that became effective on March 18, 2021 as detailed in Note 2 and Note 20.
The accompanying notes are an integral part of these consolidated financial statements.
F-5
Table of Contents
ASSETS
Current assets:
TRIP.COM GROUP LIMITED
CONSOLIDATED BALANCE SHEETS
AS OF DECEMBER 31, 2020 AND 2021
(In millions, except for share and per share data)
2020
RMB
2021
RMB
2021
US$ (Note 2)
Cash and cash equivalents
Restricted cash
Short-term investments
Accounts receivable, net (Allowance for credit losses of RMB559 million and RMB482 million as of December 31,
18,096 19,818
1,378
24,820 29,566
1,319
2020 and 2021, respectively)
Due from related parties (Allowance for credit losses of RMB72 million and RMB56 million as of December 31,
2020 and 2021, respectively)
Prepayments and other current assets (Allowance for credit losses of RMB168 million and RMB277 million as of
4,119
4,649
1,802
1,665
December 31, 2020 and 2021, respectively)
Total current assets
Long-term deposits and prepayments
Long-term receivables due from related parties
Land use rights
Property, equipment and software
Investments
Goodwill
Intangible assets
Right-of-use assets
Deferred tax assets
Total assets
LIABILITIES
Current liabilities:
Short-term debt and current portion of long-term debt
Accounts payable
Due to related parties
Salary and welfare payable
Taxes payable
Advances from customers
Accrued liability for rewards program
Other payables and accruals
Total current liabilities
Deferred tax liabilities
Long-term debt
Long-term lease liability
Other long-term liabilities
Total liabilities
Commitments and contingencies (Note 20)
SHAREHOLDERS’ EQUITY
Share capital (US$0.00125 par value; 1,400,000,000 shares authorized)) (Note i)
Additional paid-in capital
Statutory reserves
Accumulated other comprehensive loss
Retained earnings
Less: Treasury stock
Total Trip.com Group Limited shareholders’ equity
Non-controlling interests
Total shareholders’ equity
Total liabilities and shareholders’ equity
3,110
216
4,640
729
261
1,418
10,374
58
4
13
868
7,055
9,314
2,034
122
265
30,107
6,256
945
22
611
167
1,182
63
1,145
10,391
554
1,741
63
25
12,774
1
14,724
115
(252)
2,954
(331)
17,211
122
17,333
7,855
411
25
88
5,780
9,032
58,011 66,108
371
25
86
5,534
47,943 44,961
59,353 59,353
13,256 12,960
777
1,684
187,249 191,859
987
1,395
4,506
241
3,534
1,217
7,605
478
7,123
33,665 39,866
6,019
138
3,894
1,065
7,535
400
7,301
58,369 66,218
3,527
22,718 11,093
400
165
85,682 81,403
618
403
3,574
6
637
(1,608)
6
83,960 93,829
734
(1,604)
19,470 18,823
(2,111)
100,354 109,677
779
101,567 110,456
(2,111)
1,213
Note i: Value per share and the number of shares authorized as of December 31, 2020 have been retrospectively adjusted for the Share Subdivision that
became effective on March 18, 2021 as detailed in Note 2 and Note 20.
The accompanying notes are an integral part of these consolidated financial statements.
F-6
187,249 191,859
30,107
Table of Contents
Balance as of December 31,
2018
Issuance of ordinary shares
for the exercise of stock
options
Share-based compensation
Appropriations to statutory
reserves
Foreign currency translation
adjustments
Unrealized securities holding
gains
Accretion of redeemable
non-controlling interests
Net income / (loss)
Deconsolidation of shares in
subsidiaries
Issuance of additional equity
stake by subsidiaries
Disposal of shares in
subsidiaries
Equity transaction in which a
non-controlling interest in
a subsidiary is exchanged
for a non-controlling
interest in another
subsidiary
Business combination
Share issuance for the
investments
Balance as of December 31,
2019
TRIP.COM GROUP LIMITED
CONSOLIDATED STATEMENTS OF SHAREHOLDERS’ EQUITY
FOR THE YEARS ENDED DECEMBER 31, 2019, 2020 AND 2021
(In millions, except for share and per share data)
Ordinary shares
(US$0.00125 par value)
Number of
shares
outstanding
(Note i)
Additional
paid-in
capital
Par
value
Statutory
reserves
RMB RMB RMB
Accumulated
other
comprehensive
income/(loss)
RMB
Retained
earnings
RMB
Number of
Treasury
stock
(Note i)
Treasury
stock
RMB
Total
Trip.com
Group
Limited
shareholders’
equity
RMB
Non-
controlling
interests
RMB
Total
shareholders’
equity
RMB
552,982,592
5
73,876
484
(1,482) 15,943 (23,432,968)
(2,111)
86,715
2,018
88,733
6,837,992 —
— —
467
1,680
—
—
—
—
—
—
—
—
—
—
467
1,680
—
34
— —
—
151
—
(151)
—
—
—
—
— —
—
—
(289)
—
—
—
(289)
—
— —
—
—
266
—
—
—
266
—
— —
— —
—
—
—
—
—
—
(44)
7,055
—
—
—
—
— —
—
—
—
—
—
—
— —
—
—
—
—
—
—
(44)
7,055
—
—
—
(57)
(45)
19
— —
2
—
—
—
—
—
2
—
467
1,714
—
(289)
266
(44)
6,998
(45)
19
2
— —
— —
(25)
—
—
—
—
—
—
—
—
—
—
—
(25)
—
25
267
—
267
32,870,648
1
7,614
—
—
—
—
—
7,615
—
7,615
592,691,232
6
83,614
635
(1,505) 22,803 (23,432,968)
(2,111)
103,442
2,261
105,703
Note i: The number of shares outstanding and treasury stock have been retrospectively adjusted for the Share Subdivision that became effective on
March 18, 2021 as detailed in Note 2 and Note 20.
The accompanying notes are an integral part of these consolidated financial statements.
F-7
Table of Contents
Balance as of December 31,
2019
Cumulative effect of
adoption of new
accounting standard (Note
2)
Issuance of ordinary shares
for the exercise of stock
options
Share-based compensation
Appropriations to statutory
reserves
Foreign currency translation
adjustments
Unrealized securities holding
gains
Accretion of redeemable
non-controlling interests
Net income / (loss)
Deconsolidation of shares in
subsidiaries
Issuance of additional equity
stake by subsidiaries
Disposal of shares in
subsidiaries
Equity transaction in which a
non-controlling interest in
a subsidiary is exchanged
for a non-controlling
interest in another
subsidiary
Acquisition of additional
shares in subsidiaries
Balance as of December 31,
2020
TRIP.COM GROUP LIMITED
CONSOLIDATED STATEMENTS OF SHAREHOLDERS’ EQUITY
FOR THE YEARS ENDED DECEMBER 31, 2019, 2020 AND 2021
(In millions, except for share and per share data)
Ordinary shares
(US$0.00125 par value)
Number of
shares
outstanding
(Note i)
Additional
paid-in
capital
Par
value
Statutory
reserves
RMB RMB RMB
Accumulated
other
comprehensive
income/(loss)
RMB
Retained
earnings
RMB
Number of
Treasury
Stock
(Note i)
Treasury
stock
RMB
Total
Trip.com
Group
Limited
shareholders’
equity
RMB
Non-
controlling
interests
RMB
Total
shareholders’
equity
RMB
592,691,232
6
83,614
635
(1,505) 22,803 (23,432,968)
(2,111)
103,442
2,261
105,703
— —
—
—
—
(83)
—
—
(83)
—
(83)
6,935,904 —
— —
159
1,873
—
—
—
—
—
—
—
—
—
—
159
1,873
—
—
— —
—
3
—
(3)
—
—
—
—
— —
—
—
75
—
—
—
75
—
159
1,873
—
75
— —
—
—
(178)
—
—
—
(178)
—
(178)
— —
— —
—
—
—
—
—
—
(40)
(3,207)
—
—
—
—
(40)
(3,207)
—
(62)
(40)
(3,269)
— —
—
—
—
—
—
—
—
176
— —
—
—
—
—
—
—
—
5
176
5
— —
—
(1)
—
—
—
—
(1)
(233)
(234)
— —
9
—
—
—
—
—
9
(9)
—
— —
(1,695)
—
—
—
—
—
(1,695)
(925)
(2,620)
599,627,136
6
83,960
637
(1,608) 19,470 (23,432,968)
(2,111)
100,354
1,213
101,567
Note i: The number of shares outstanding and treasury stock have been retrospectively adjusted for the Share Subdivision that became effective on
March 18, 2021 as detailed in Note 2 and Note 20.
The accompanying notes are an integral part of these consolidated financial statements.
F-8
Table of Contents
TRIP.COM GROUP LIMITED
CONSOLIDATED STATEMENTS OF SHAREHOLDERS’ EQUITY
FOR THE YEARS ENDED DECEMBER 31, 2019, 2020 AND 2021
(In millions, except for share and per share data)
Ordinary shares
(US$0.00125 par value)
Number of
shares
outstanding
599,627,136
Additional
paid-in
capital
Par
value
Statutory
reserves
RMB RMB RMB
637
83,960
6
Accumulated
other
comprehensive
income/(loss)
RMB
Retained
earnings
RMB
Number of
Treasury
stock
(1,608) 19,470 (23,432,968)
100,354
Total
Trip.com
Group
Limited
shareholders’
equity
RMB
Treasury
stock
RMB
(2,111)
Non-
controlling
interests
RMB
1,213
Total
shareholders’
equity
RMB
5,321,521
0
307
—
—
—
—
—
307
36,380,900
0
— —
7,984
1,681
—
—
—
—
—
—
—
—
—
—
7,984
1,681
— —
—
97
—
(97)
—
—
— —
—
—
2
—
—
—
— —
— —
— —
— —
—
—
—
—
— —
6
641,329,557
(103)
93,829
—
—
—
—
—
734
2
—
—
—
—
(550)
—
—
—
—
—
—
—
—
—
—
—
—
—
(1,604) 18,823 (23,432,968)
—
(2,111)
(103)
109,677
(339)
779
(442)
110,456
101,567
307
7,984
1,681
—
2
2
(645)
0
0
—
—
—
—
—
—
(95)
0
0
—
2
2
(550)
—
—
Balance as of December 31, 2020
Issuance of ordinary shares for
the exercise of stock options
Issuance of ordinary shares, net
of issuance costs (Note 19)
Share-based compensation
Appropriations to statutory
reserves
Foreign currency translation
adjustments
Unrealized securities holding
gains
Net loss
Business combinations
Establishment of subsidiaries
Acquisition of additional equity
interests of subsidiaries
Balance as of December 31, 2021
The accompanying notes are an integral part of these consolidated financial statements.
F-9
Table of Contents
TRIP.COM GROUP LIMITED
CONSOLIDATED STATEMENTS OF CASH FLOWS
FOR THE YEARS ENDED DECEMBER 31, 2019, 2020 AND 2021
(In millions)
Cash flows from operating activities:
Net income/(loss)
Adjustments to reconcile net income/(loss) to cash provided by operating activities:
2019
RMB
2020
RMB
2021
RMB
2021
US$ (Note 2)
6,998 (3,269)
(645)
(101)
Share-based compensation
Equity in loss/(income) of affiliates
Loss from disposal of property, equipment and software
Gain on deconsolidation of subsidiaries
(Gain)/loss from disposal of long-term investment
Loss/(gain) from disposal of a subsidiary
Impairments of long-term investments
Settlement of provision and contingent liability balances related to an equity method investment
Gain from settlement of contingency consideration related to a business combination
Gain on loan forgiveness
Changes in fair value for equity securities investment and exchangeable senior notes
Gain from the re-measurement of the previously held equity interest to the fair value in the business
1,714 1,873 1,681
(96)
347 1,689
97
100
28
(161) (1,091) —
(63)
602
(318)
11
(4)
(36)
96
905
205
(603) — —
(30)
(68)
170
— —
— —
612
(2,334)
acquisition
Gain from foreign currency forwards
Allowance for credit losses
Depreciation of property, equipment and software
Amortization of intangible assets and land use rights
Amortization of right of use assets
Deferred income tax benefits
Changes in current assets and liabilities, net of assets acquired and liabilities assumed/disposed of in
business combinations/dispositions, net of deconsolidation:
(Increase)/decrease in accounts receivable
(Increase)/decrease in due from related parties
(Increase)/decrease in prepayments and other current assets
Decrease in long-term receivables
Increase/(decrease) in accounts payable
Increase/(decrease) in due to related parties
Increase/(decrease) in salary and welfare payable
Increase/(decrease) in taxes payable
Increase/(decrease) in advances from customers
Decrease in accrued liability for rewards program
Increase/(decrease) in other payables and accruals
Net cash provided by/(used in) operating activities
Cash flows from investing activities:
Purchase of property, equipment and software
Cash paid for long-term investments
Cash paid for business combinations, net of cash acquired
Purchase of intangible assets
Decrease in short-term investments
Cash received from loans to the users
Cash paid for loans to the users
Net change in loans to the users with terms of less than three months
Cash received from disposal of long-term investments
Cash disposed from deconsolidation of subsidiaries
Cash received/(disposed) from disposal of subsidiaries
Net cash used in investing activities
F-10
(196) — —
(57)
(47)
(105)
141
700
191
723
790
656
298
427
440
392
349
354
(337)
(493)
(176)
(468)
(2,041) 3,189
149
(1,054)
821
(560)
(2,245) 3,838
38
60
146
540 (7,762) 1,513
(97)
(159)
62
361
1,143 (1,318)
(149)
(242)
(69)
2,211 (4,073)
(78)
(50) —
1,163 (1,288)
(463)
7,333 (3,823) 2,475
407
(532)
(823)
(212)
(958)
(11) —
(570)
(15,834) (9,770) (6,818)
(42)
(1)
15,011 6,909 3,233
2,553 3,992 4,542
(2,748) (3,944) (4,709)
91 (1,050)
(1,084)
708 1,269
719
(313) —
(3)
(2)
19
(2,413) (3,821) (4,148)
(4)
264
(15)
15
—
(10)
(1)
15
—
(5)
(11)
27
—
(9)
22
113
47
62
(53)
(73)
23
(88)
6
237
(15)
57
(23)
(11)
(12)
(73)
388
(89)
(1,070)
(7)
(0)
507
713
(739)
(165)
199
—
(0)
(651)
Table of Contents
TRIP.COM GROUP LIMITED
CONSOLIDATED STATEMENTS OF CASH FLOWS (CONTINUED)
FOR THE YEARS ENDED DECEMBER 31, 2019, 2020 AND 2021
(In millions)
2019
RMB
2020
RMB
2021
RMB
2021
US$ (Note 2)
Cash flows from financing activities:
(Repayment of)/proceeds from short-term bank loans, net
Proceeds from long-term bank loans
Repayment of long-term loans, including current portion
Proceeds from issuance of ordinary shares net of issuance cost (Note 19)
Proceeds from exercise of share options
Cash paid for acquisition of additional equity interests of subsidiaries
Cash paid for settlement of convertible notes
Proceeds from securitization debt
Cash paid for settlement of securitization debt
Cash received from non-controlling shareholders
Proceeds from issuance of exchangeable senior notes
Net cash (used in)/provided by financing activities
Effect of foreign exchange rate changes on cash and cash equivalents, restricted cash
Net (decrease)/increase in cash and cash equivalents, restricted cash
Cash and cash equivalents, restricted cash, beginning of year
Cash and cash equivalents, restricted cash, end of year*
Supplemental disclosure of cash flow information
Cash paid during the year for income taxes
Cash paid for interest, net of amounts capitalized
Supplemental schedule of non-cash investing and financing activities
Non-cash consideration paid for business acquisitions, investments and non-controlling interest
Share issuance as the consideration for equity investment
Accruals related to purchase of property, equipment and software
Unpaid cash consideration for business acquisitions and acquisition of additional equity interest of
159
467
(220) (2,089)
(3,079) 4,020 5,600
5,146 14,189
15
(3,147) (3,589) (3,608)
— — 7,984
307
(321)
(10,048) (9,522) (6,426)
752
1,074
(384)
(608)
1,159
5 —
— 3,395 —
(9,256) 6,025 3,919
(465)
(4,027) (2,332) 1,781
25,774 21,747 19,415
21,747 19,415 21,196
147
(690)
(713)
309
753
1,496 1,239
1,637 1,642 1,498
(50)
(400)
(278)
(7,615) — —
(94)
(126)
(144)
879
2
(566)
1,253
48
(50)
(1,009)
118
(60)
—
—
615
(73)
279
3,047
3,326
118
235
(44)
—
(15)
subsidiary
—
(43)
(309)
(48)
*
As of December 31, 2019, cash and cash equivalents and restricted cash are RMB19.9 billion and RMB1.8 billion respectively.
The accompanying notes are an integral part of these consolidated financial statements.
F-11
Table of Contents
TRIP.COM GROUP LIMITED
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
(Amounts expressed in RENMINBI (“RMB”) unless otherwise stated)
1.
ORGANIZATION AND NATURE OF OPERATIONS
The accompanying consolidated financial statements include the financial statements of Trip.com Group Limited (the “Company”, formerly
known as Ctrip.com International, Ltd.), its subsidiaries, variable interest entities (the “VIEs”) and VIEs’ subsidiaries. In these consolidated financial
statements, where appropriate, the term “Company” also refers to its subsidiaries, VIEs and VIEs’ subsidiaries as a whole.
The Company is principally engaged in the provision of travel related services including accommodation reservation, transportation ticketing,
packaged tours, corporate travel management services, as well as, to a much lesser extent, Internet-related advertising and other related services.
2.
PRINCIPAL ACCOUNTING POLICIES
Basis of presentation
The accompanying consolidated financial statements have been prepared in accordance with accounting principles generally accepted in the
United States of America (“US GAAP”).
On March 18, 2021, the Company announced that the following proposed resolution submitted for shareholder approval has been adopted and
approved as a special resolution at the Company’s extraordinary general meeting of shareholders: Each of the Company’s issued and unissued ordinary
shares of a nominal or par value of US$0.01 each in the capital of the Company be and is hereby subdivided into eight (8) ordinary shares of a nominal
or par value of US$0.00125 each in the capital of the Company, effective from March 18, 2021 (“Share Subdivision”). The Company also announced
that, concurrently with the effectiveness of the Share Subdivision, the ratio of ADS to ordinary share will be adjusted from eight (8) ADSs representing
one (1) ordinary share to one (1) ADS representing one (1) ordinary share (the “ADS Ratio Change”). The number of ordinary shares as disclosed in
these consolidated financial statements are prepared on a basis after taking into account the effects of the Share Subdivision and the ADS Ratio Change
and have been retrospectively adjusted accordingly.
The preparation of financial statements in conformity with US GAAP requires management to make estimates and assumptions that affect the
reported amounts of assets and liabilities, disclosures of contingent assets and liabilities at the balance sheet dates and the reported amounts of revenues
and expenses during the reporting periods. Actual results could materially differ from those estimates.
Consolidation
The consolidated financial statements include the financial statements of the Company, its subsidiaries, VIEs and VIEs’ subsidiaries. All
significant transactions and balances between the Company, its subsidiaries, VIEs and VIEs’ subsidiaries have been eliminated upon consolidation.
A subsidiary is an entity in which the Company, directly or indirectly, controls more than one half of the voting power; has the power to appoint or
remove the majority of the members of the board of directors; to cast a majority of votes at the meeting of the board of directors or to govern the
financial and operating policies of the investee under a statute or agreement among the shareholders or equity holders.
The Company applies the guidance codified in Accounting Standard Codification 810, Consolidations (“ASC 810”) on accounting for VIEs and
their respective subsidiaries, which requires certain variable interest entities to be consolidated by the primary beneficiary of the entity in which it has a
controlling financial interest. A VIE is an entity with one or more of the following characteristics: (a) the total equity investment at risk is not sufficient
to permit the entity to finance its activities without additional financial support; (b) as a group, the holders of the equity investment at risk lack the
ability to make certain decisions, the obligation to absorb expected losses or the right to receive expected residual returns, or (c) an equity investor has
voting rights that are disproportionate to its economic interest and substantially all of the entity’s activities are on behalf of the investor. The
accompanying consolidated financial statements include the financial statements of the Company, its subsidiaries, consolidated VIEs and VIEs’
subsidiaries:
The following is a summary of the Company’s major VIEs and VIEs’ subsidiaries:
Name of VIE and VIEs’ subsidiaries
Date of establishment/acquisition
Shanghai Ctrip Commerce Co., Ltd. (“Shanghai Ctrip Commerce”)
Shanghai Huacheng Southwest International Travel Agency Co., Ltd. (“Shanghai Huacheng”,
formerly known as Shanghai Huacheng Southwest Travel Agency Co., Ltd.)
Established on July 18, 2000
Established on March 13, 2001
Chengdu Ctrip Travel Agency Co., Ltd. (“Chengdu Ctrip”)
Established on January 8, 2007
Beijing Qu Na Information Technology Company Limited (“Qunar Beijing”)
Established on March 17, 2006
F-12
Table of Contents
The Company is considered the primary beneficiary of a VIE or VIEs’ subsidiary and consolidated the VIE or VIEs’ subsidiary if the Company
had variable interests, that will absorb the entity’s expected losses, receive the entity’s expected residual returns, or both.
Major variable interest entities and their subsidiaries
The Company conducts a part of its operations through a series of agreements with certain VIEs and VIEs’ subsidiaries as stated in above. These
VIEs and VIEs’ subsidiaries are used solely to facilitate the Company’s participation in Internet content provision, advertising business, travel agency
and air-ticketing services in the People’s Republic of China (“PRC”) where foreign ownership is restricted. From 2015, the Company restructured its
business lines to change some of its VIEs to its wholly owned subsidiaries, which carry out the businesses that are not foreign ownerships restricted.
Shanghai Ctrip Commerce is a domestic company incorporated in Shanghai, the PRC. Shanghai Ctrip Commerce holds a telecommunications
operation license and is primarily engaged in the provision of advertising business on the Internet website. Two senior officers of the Company
collectively hold 100% of the equity interest in Shanghai Ctrip Commerce. The registered capital of Shanghai Ctrip Commerce was RMB900,000,000
as of December 31, 2021.
Shanghai Huacheng is a domestic company incorporated in Shanghai, the PRC. Shanghai Huacheng holds a travel agency operation license and
mainly provides domestic, inbound and outbound tour services and air-ticketing services. Shanghai Ctrip Commerce holds 100% of the equity interest in
Shanghai Huacheng. The registered capital of Shanghai Huacheng was RMB100,000,000 as of December 31, 2021.
Chengdu Ctrip is a domestic company incorporated in Chengdu, the PRC. Chengdu Ctrip holds a domestic travel agency license and is engaged in
the provision of air-ticketing service. Two senior officers of the Company hold 100% of the equity interest in Chengdu Ctrip. The registered capital of
Chengdu Ctrip was RMB500,000,000 as of December 31, 2021.
Qunar Beijing is a domestic company incorporated in Beijing, the PRC. Qunar Beijing holds various licenses for domestic and cross-border
business of Qunar. Two senior officers of the Company hold 100% of the equity interest in Qunar Beijing. The registered capital of Qunar Beijing was
RMB11,000,000 as of December 31, 2021.
The capital injected by senior officers or senior officer’s family member are funded by the Company and are recorded as long-term business loans
to related parties. The Company does not have any ownership interest in these VIEs and VIEs’ subsidiaries.
As of December 31, 2021, the Company has various agreements with its consolidated VIEs and VIEs’ subsidiaries, including loan agreements,
exclusive technical consulting and services agreements, share pledge agreements, exclusive option agreements and other operating agreements.
Details of certain key agreements with the VIEs are as follows:
Powers of Attorney: Each of the shareholders of the Company’s consolidated affiliated Chinese entities, except for Hui Cao and Hui Wang, signed
an irrevocable power of attorney to appoint Ctrip Travel Network or Ctrip Travel Information, as attorney-in-fact to vote, by itself or any other person to
be designated at its discretion, on all matters of the applicable consolidated affiliated Chinese entities. Each such power of attorney will remain effective
as long as the applicable consolidated affiliated Chinese entity exists, and such shareholders of the applicable consolidated affiliated Chinese entities are
not entitled to terminate or amend the terms of the power of attorneys without prior written consent from us.
As of the date of this annual report, each of the shareholders of Qunar Beijing, Hui Cao and Hui Wang, also signed an irrevocable power of
attorney authorizing an appointee, to exercise, in a manner approved by Qunar, on such shareholder’s behalf the full shareholder rights pursuant to
applicable laws and Qunar Beijing’s articles of association, including without limitation full voting rights and the right to sell or transfer any or all of
such shareholder’s equity interest in Qunar Beijing. Each such power of attorney is effective until such time as such relevant shareholder ceases to hold
any equity interest in Qunar Beijing. The terms of the power of attorney with respect to Qunar Beijing are otherwise substantially similar to the terms
described in the foregoing paragraph.
F-13
Table of Contents
Technical Consulting and Services Agreements: Ctrip Travel Information and Ctrip Travel Network, each a wholly owned PRC subsidiary of the
Company, provide the Company’s consolidated affiliated Chinese entities, except for Qunar Beijing, with technical consulting and related services and
staff training and information services on an exclusive basis. The Company also maintain its network platforms. In consideration for the Company’s
services, the Company’s consolidated affiliated Chinese entities agree to pay the Company service fees as calculated in such manner as determined by
the Company from time to time based on the nature of service, which may be adjusted periodically. Although the service fees are typically determined
based on the number of transportation tickets sold, given the fact that the nominee shareholders of such consolidated affiliated Chinese entities have
irrevocably appointed a designated person to vote on their behalf on all matters they are entitled to vote on, the Company has the right to determine the
level of service fees paid and therefore receive substantially all of the economic benefits of the Company’s consolidated affiliated Chinese entities in the
form of service fees. Ctrip Travel Information or Ctrip Travel Network, as appropriate, will exclusively own any intellectual property rights arising from
the performance of this agreement. The initial term of these agreements is 10 years and may be renewed automatically in 10-year terms unless the
Company disapprove the extension. The Company retains the exclusive right to terminate the agreements at any time by delivering a 30-day advance
written notice to the applicable consolidated affiliate Chinese entity.
As of the date of this annual report, pursuant to the restated exclusive technical consulting and services agreement between Qunar Beijing and
Qunar Software, Qunar Software provides Qunar Beijing with technical, marketing and management consulting services on an exclusive basis in
exchange for service fee paid by Qunar Beijing based on a set formula defined in the agreement subject to adjustment by Qunar Software at its sole
discretion. This agreement will remain in effect until terminated unilaterally by Qunar Software or mutually. The terms of this agreement are otherwise
substantially similar to the terms described in the foregoing paragraph.
Share Pledge Agreements: The shareholders of the Company’s consolidated affiliated Chinese entities, except for Hui Cao and Hui Wang, have
pledged their respective equity interests in the applicable consolidated affiliated Chinese entities as a guarantee for the performance of all the obligations
under the other contractual arrangements, including payment by such consolidated affiliated Chinese entities of the technical and consulting services
fees to us under the technical consulting and services agreements, repayment of the business loan under the loan agreements and performance of
obligations under the exclusive option agreements, each agreement as described herein. This agreement shall be valid and binding on the parties, their
heirs, successors and permitted assignees. In the event any of such consolidated affiliated Chinese entity breaches any of its obligations or any
shareholder of such consolidated affiliated Chinese entities breaches his or her obligations, as the case may be, under these agreements, the Company is
entitled to enforce the equity pledge right and sell or otherwise dispose of the pledged equity interests, and have priority in receiving payment from
proceeds from the auction or sale of all or part of the pledge until the obligations are settled. The pledge shall be established upon registration with the
local branch of the PRC State Administration for Market Regulation (“SAMR”), which has been completed, and will expire two years after the pledgor
and the applicable consolidated affiliated Chinese entities no longer undertake any obligations under the above-referenced agreements.
As of the date of this annual report, pursuant to the equity interest pledge agreement among Qunar Software, Hui Cao and Hui Wang, Hui Cao and
Hui Wang have pledged their equity interests in Qunar Beijing along with all rights, titles and interests to Qunar Software as guarantee for the
performance of all obligations under the relevant contractual arrangements mentioned herein. After the pledge is registered with the relevant local
branch of SAMR, Qunar Software may enforce this pledge upon the occurrence of a settlement event or as required by the PRC law. The pledge, along
with this agreement, will be effective upon registration with the local branch of the SAMR, and will expire when all obligations under the relevant
contractual arrangements have been satisfied or when each of Hui Cao and Hui Wang completes a transfer of equity interest and ceases to hold any
equity interest in Qunar Beijing. In enforcing the pledge, Qunar Software is entitled to dispose of the pledge and have priority in receiving payment from
proceeds from the auction or sale of all or part of the pledge until the obligations are settled. The terms of this agreement are otherwise substantially
similar to the terms described in the foregoing paragraph.
Loan Agreements: Under the loan agreements the Company entered into with the shareholders of the Company’s consolidated affiliated Chinese
entities, except for Hui Cao and Hui Wang, the Company extended long-term business loans to these shareholders of the Company’s consolidated
affiliated Chinese entities with the sole purpose of providing funds necessary for the capitalization or acquisition of such consolidated affiliated Chinese
entities. These business loan amounts were injected into the applicable consolidated affiliated Chinese entities as capital and cannot be accessed for any
personal uses. The initial term of the loan agreements is 10 years and may be renewed automatically in 10-year terms unless the Company disapprove
the extension by written notice in advance. The loan agreements shall remain effective until the parties have fully performed their respective obligations
under the agreement, and the shareholders of such consolidated affiliated Chinese entities have no right to unilaterally terminate these agreements or
repay the loan in advance. The loan agreements shall be valid and binding on the parties, their successors and permitted assignees. In the event that the
PRC government lifts its substantial restrictions on foreign ownership of the travel agency, or value-added telecommunications business in China, as
applicable, the Company will exercise its exclusive option to purchase all of the outstanding equity interests of the Company’s consolidated affiliated
Chinese entities, as described in the following paragraph, and the loan agreements will be canceled in connection with such purchase. However, it is
uncertain when, if at all, the PRC government will lift any or all of these restrictions.
F-14
Table of Contents
As of the date of this annual report, pursuant to the loan agreement among Qunar Software, Hui Cao and Hui Wang, the loans extended by Qunar
Software to each of Hui Cao and Hui Wang are only repayable by a transfer of such borrower’s equity interest in Qunar Beijing to Qunar Software or its
designated party, in proportion to the amount of the loan to be repaid. This loan agreement will continue in effect indefinitely until such time when
(i) the borrowers receive a repayment notice from Qunar Software and fully repay the loans, or (ii) an event of default (as defined therein) occurs unless
Qunar Software sends a notice indicating otherwise within 15 calendar days after it is aware of such event. The loan agreements shall be valid and
binding on the parties, their successors and permitted assignees. The terms of this loan agreement is substantially similar to the terms described in the
foregoing paragraphs.
Exclusive Option Agreements: As consideration for the Company’s entering into the loan agreements described above, each of the shareholders
of the Company’s consolidated affiliated Chinese entities, except for Hui Cao and Hui Wang, has granted us an exclusive, irrevocable option to
purchase, or designate one or more person(s) at the Company’s discretion to purchase, all of its equity interests in the applicable consolidated affiliated
Chinese entities at any time the Company desires, subject to compliance with the applicable PRC laws and regulations. The Company may exercise the
option by issuing a written notice to the shareholder of relevant consolidated affiliated Chinese entity. Subject to the evaluation requirements or other
restrictions imposed by applicable PRC laws and regulations, the purchase price shall be equal to the contribution actually made by the shareholder for
the relevant equity interest. Therefore, if the Company exercises these options, the Company may choose to cancel the outstanding loans the Company
extended to the shareholders of such consolidated affiliated Chinese entities pursuant to the loan agreements as the loans were used solely for equity
contribution purposes. The initial term of these agreements is 10 years and may be renewed automatically in 10-year terms unless the Company
disapproves the extension. This agreement shall be valid and binding on the parties, their heirs, successors and permitted assignees. The Company
retains the exclusive right to terminate the agreements at any time by delivering a written notice to the shareholder of applicable consolidated affiliate
Chinese entity.
Hui Cao and Hui Wang also entered into an equity option agreement with Qunar, Qunar Software and Qunar Beijing. This equity option
agreement contains arrangements that are similar to that as described in the foregoing paragraph. This agreement will remain effective with respect to
each of Qunar Beijing’s shareholders until all of the equity interest has been transferred or Qunar and Qunar Software terminates the agreement
unilaterally with 30 days’ prior written notice. This agreement shall be valid and binding on the parties, their successors and permitted assignees.
The Company’s consolidated affiliated Chinese entities and their shareholders agree not to enter into any transaction that would affect the assets,
obligations, rights or operations of the Company’s consolidated affiliated Chinese entities without the Company’s prior written consent. They also agree
to accept the Company’s guidance with respect to day-to-day operations, financial management systems and the appointment and dismissal of key
employees.
Risks in relation to contractual arrangements between the Company’s PRC subsidiaries and its affiliated Chinese entities:
The Company has been advised by Commerce & Finance Law Offices, its PRC legal counsel, that its contractual arrangements with its
consolidated VIEs as described in the Company’s annual report are valid, binding and enforceable under the current laws and regulations of China.
Based on such legal opinion and the management’s knowledge and experience, the Company believes that its contractual arrangements with its
consolidated VIEs are in compliance with current PRC laws and legally enforceable. However, there may be in the event that the affiliated Chinese
entities and their respective shareholders fail to perform their contractual obligations, the Company may have to rely on the PRC legal system to enforce
its rights. The PRC legal system is based on written statutes. Prior court decisions may be cited for reference but have limited precedential value. Since
1979, PRC legislation and regulations have significantly enhanced the foreign investments in China. However, since the PRC legal system is still
evolving, the interpretations of many laws, regulations and rules are not always uniform and enforcement of these laws, regulations and rules involve
uncertainties, which may limit remedies available to us. In addition, any litigation in China may be protracted and result in substantial costs and
diversion of resources and management attention. Due to the uncertainties with respect to the PRC legal system, the PRC government authorities may
ultimately take a view contrary to the opinion of its PRC legal counsel with respect to the enforceability of the contractual arrangements.
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There are, however, substantial uncertainties regarding the interpretation and application of current or future PRC laws and regulations.
Accordingly, the Company cannot be assured that the PRC government authorities will not ultimately take a view that is contrary to the Company’s
belief and the opinion of its PRC legal counsel. In March 2019, the draft Foreign Investment Law was submitted to the National People’s Congress for
review and was approved on March 15, 2019, which came into effect from January 1, 2020. The new Foreign Investment Law of the PRC repealed
simultaneously the Wholly Foreign-owned Enterprise Law of the PRC, Sino-foreign Equity Joint Venture Law of the PRC and Sino-foreign Cooperative
Joint Ventures Law of the PRC. Therefore, the general regulations for companies’ set up and operation in the PRC including the foreign-invested
companies shall comply with the Company Law of the PRC unless provided in the PRC Foreign Investment Laws. In December 2019, the Implementing
Regulation of the Foreign Investment Law has been promulgated by the State Council which has come into force as of January 1, 2020. The Foreign
Investment Law does not touch upon the relevant concepts and regulatory regimes that were historically suggested for the regulation of VIE structures,
and thus this regulatory topic remains unclear under the Foreign Investment Law. Since the Foreign Investment Law is new, there are substantial
uncertainties exist with respect to its implementation and interpretation and it is also possible that the VIE entities will be deemed as foreign invested
enterprises and be subject to restrictions in the future. Such restrictions may cause interruptions to the Company’s operations, products and services and
may incur additional compliance cost, which may in turn materially and adversely affect the Company’s business, financial condition and results of
operations.
Summary financial information of the Company’s VIEs in the consolidated financial statements
Pursuant to the contractual arrangements with the VIEs, the Company has the power to direct activities of the VIEs, and can have assets
transferred freely out of the VIEs without any restrictions. Therefore, the Company considers that there is no asset of a consolidated VIE that can be
used only to settle obligations of the VIE, except for registered capital and PRC statutory reserves of the VIEs amounting to a total of RMB2.0 billion as
of December 31, 2021. As all the consolidated VIEs are incorporated as limited liability companies under the PRC Company Law, creditors of the VIEs
do not have recourse to the general credit of the Company for any of the liabilities of the consolidated VIEs.
Summary of selected financial information of the VIEs, which represents aggregated financial information of the VIEs and their respective
subsidiaries included in the accompanying consolidated financial statements, is as follows (RMB in millions):
Selected Balance Sheets Data of VIEs
Cash and cash equivalents
Short-term investments
Accounts receivable
Prepayments and other current assets
Investments (non-current)
Total assets
Less: Inter-company receivables (Note i)
Total assets excluding inter-company receivables
Short-term debt and current portion of long-term debt
Accounts payable
Advances from customers
Other payables and accruals
Total liabilities
Less: Inter-company payables (Note ii)
Total liabilities excluding inter-company payables
As of December 31,
2020 2021
7,011 7,084
2,529 1,612
2,728 2,480
3,474 2,208
5,924 3,980
32,084 28,122
(8,690) (8,810)
23,394 19,312
3,737 5,310
1,753 1,944
1,723 1,892
1,944 2,473
28,560 25,045
(18,555) (12,946)
10,005 12,099
Note i: The inter-company receivables as of December 31, 2020 and 2021 mainly represented the receivables of VIEs due from the Company’s
wholly-owned subsidiaries for treasury cash management purpose.
Note ii: The inter-company payables as of December 31, 2020 and 2021 mainly represented payables of VIEs due to the Company’s wholly-
owned subsidiaries for treasury cash management purpose.
The following table set forth the summary of results of operations of the VIEs and their subsidiaries of the Company (RMB in millions):
Net revenues
Cost of revenues
Net income/(loss)
F-16
For the year ended December 31,
2019
9,572
3,627
89
2020
6,513
2,471
2021
6,035
2,557
(119)
(254)
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As aforementioned, the VIEs mainly conduct transportation ticketing, advertising and financial service businesses. Net revenues from VIEs
accounted for around 30% of the Company’s net revenues for the year ended December 31, 2021.
The VIEs’ net income before the deduction of the inter-company service fee charges were RMB1.7 billion, RMB1.5 billion and RMB1.5 billion
for the years ended December 31, 2019, 2020 and 2021, respectively.
The WFOEs are the sole and exclusive provider of technical consulting and related services and information services for the VIEs. Pursuant to the
Exclusive Technical Consulting and Service Agreements, the VIEs pay service fees to the WFOEs based on the VIEs’ actual operating results. The
WFOEs are entitled to receive substantially all of the net income and transfer a majority of the economic benefits in the form of service fees from the
VIEs and VIEs’ subsidiaries to the WFOEs.
The amount of service fees paid by all the VIEs to the WFOEs were RMB1.6 billion, RMB1.7 billion and RMB1.7 billion for the years ended
December 31, 2019, 2020 and 2021, respectively.
The following tables set forth the summary of cash flow activities of the VIEs and their subsidiaries of the Company (RMB in millions):
Net cash (used in)/provided by operating activities
Net cash provided by investing activities
Net cash provided by/(used in) financing activities
For the year ended December 31,
2021
2020
2019
(517)
58
144
(597)
349
255
1,271
618
(1,566)
The amounts of cash flow activities of the Company’s consolidated VIEs for the year ended December 31, 2020 have been revised to reflect an
adjustment with an increase of RMB349 million in the cash provided by investing activities, and an increase of RMB255 million in the cash provided by
financing activities. The amounts of cash flow activities of the Company’s consolidated VIEs for the year ended December 31, 2019 have been revised
to reflect an adjustment with an increase of RMB58 million in the cash provided by investing activities, and an increase of RMB144 million in the cash
provided by financing activities. The revisions, in the opinion of management, are immaterial. The impact of the revisions was eliminated in
consolidation. There is no impact on the previously reported consolidated financial position, results of operations or cash flows.
Currently there is no contractual arrangement that could require the Company to provide additional financial support to the consolidated VIEs. As
the Company is conducting certain business in the PRC mainly through the VIEs, the Company may provide such support on a discretionary basis in the
future, which could expose the Company to a loss.
Foreign currencies
The Company’s reporting currency is RMB. The Company’s functional currency is US$. The Company’s operations are conducted through the
subsidiaries and VIEs where the local currency is the functional currency and the financial statements of those subsidiaries are translated from their
respective functional currencies into RMB.
Transactions denominated in currencies other than functional currencies are remeasured at the exchange rates quoted by the People’s Bank of
China (the “PBOC”) and the Hong Kong Association of Banks (the “HKAB”), prevailing or averaged at the dates of the transaction for PRC and Hong
Kong subsidiaries respectively. Gains and losses resulting from foreign currency transactions are included in the consolidated statements of
income/(loss) and comprehensive income/(loss). Monetary assets and liabilities denominated in foreign currencies are remeasured using the applicable
exchange rates quoted by the PBOC and HKAB at the balance sheet dates. All such exchange gains and losses are included in the consolidated
statements of income/(loss).
Assets and liabilities of the group companies are translated from their respective functional currencies to the reporting currency at the exchange
rates at the balance sheet dates, equity accounts are translated at historical exchange rates and revenues and expenses are translated at the average
exchange rates in effect during the reporting periods. The exchange differences for the translation of group companies with non-RMB functional
currency into the RMB are included in foreign currency translation adjustments, which is a separate component of shareholders’ equity on the
consolidated financial statements. The foreign currency translation adjustments are not subject to tax.
Translations of amounts from RMB into US$ are unaudited and solely for the convenience of the reader and were calculated at the rate of
US$1.00 = RMB6.3726 on December 30, 2021, representing the certificated exchange rate published by the Federal Reserve Board. No representation is
intended to imply that the RMB amounts could have been, or could be, converted, realized or settled into US$ at that rate on December 30, 2021, or at
any other rate.
Cash and cash equivalents
Cash includes currency on hand and deposits held by financial institutions that can be added to or withdrawn without limitation. Cash equivalents
represent short-term, highly liquid investments that are readily convertible to known amounts of cash and with original maturities from the date of
purchase of generally three months or less.
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Restricted cash
Restricted cash represents cash that cannot be withdrawn without the permission of third parties. The Company’s restricted cash is substantially
cash balance on deposit required by its business partners and commercial banks.
Short-term investments
Short-term investments represent i) held-to-maturity investments which are due in one year and stated at amortized cost; ii) the investments issued
by commercial banks or other financial institutions with a variable interest rate indexed to the performance of underlying assets within one year
measured at fair value, and iii) foreign currency forward contracts measured at fair value which are short-term. Changes in the fair value are reflected in
the consolidated statements of income/(loss) and comprehensive income/(loss).
Derivative Instruments
Derivative instruments are carried at fair value. The fair values of the derivative financial instruments generally represent the estimated amounts
expect to receive or pay upon termination of the contracts as of the reporting date.
The Company’s derivative instruments primarily consisted of foreign currency forward contracts and interest rate swap contracts. The foreign
currency forward contracts are used to economically hedge certain foreign denominated liabilities and reduce, to the extent practicable, the potential
exposure to the changes that exchange rates might have on the Company’s earnings, cash flows and financial position. As the derivative instruments of
foreign currency forward contracts do not qualify for hedge accounting treatment, changes in the fair value are reflected in Other income/(expense) of
the consolidated statements of income/(loss) and comprehensive income/(loss).
The interest rate swap contracts are used to swap floating interest payments related to certain borrowings for fixed interest payments to hedge the
interest rate risk associated with certain forecasted payments and obligations. As derivative instruments of interest rate swap contracts are designated as
cash flow hedges and the hedge is highly effective, all changes in the fair value of the derivative hedging instruments are recorded in other
comprehensive income/(loss)(“OCI”) as unrealized securities holding losses.
As of December 31, 2020 and 2021, and for the years ended December 31, 2019, 2020 and 2021, the balance of the derivative instruments and the
total amount of fair value changes are not material.
Installment credit and nonrecourse securitization debt
The Company provides installment credit solutions to users with the terms generally below one year. Such amounts are recorded at the outstanding
principal amount less allowance for credit losses, and include accrued interest receivable and presented in receivable related to financial services in Note
3.
Since 2018, the Company entered into asset backed securitization arrangements with third-party financial institutions and set up a securitization
vehicle as servicer to issue the revolving debt securities to third party investors. The debt securities are collateralized by the loans due from the users
transferred to the securitization vehicle. The Company consolidated the servicer of the securitized debt since economic interests are retained in the form
of subordinated interests and it acts as the servicer of securitization vehicle. Therefore, the proceeds from the issuance of debt securities are reported as
securitization debt, and the transferred collateralized receivable remain on the Company’s financial statements. The securities are repaid when the
collections of the underlying collateralized receivable occur and are reported in “short-term debt and current portion of long-term debt” (Note 12) or
“long-term debt” (Note 17) according to the contractual maturities of the debt securities.
As of December 31, 2020 and 2021, out of the total receivables due from the users, the collateralized receivable for the debt securities were
RMB0.7 billion and RMB1.0 billion, respectively, and the non-collateralized receivable (receivables which have not been transferred to the
securitization vehicle) were RMB1.9 billion and RMB2.9 billion, respectively.
As of December 31, 2020 and 2021, the balance of allowance for expected credit losses for the receivable related to financial services amounted to
RMB112 million and RMB209 million, respectively. The Company recognized the interest income from the receivable related to financial services in
Revenue – Others. The interest expenses in relation to the nonrecourse securitization debt were recognized in the cost of revenue. For the years ended
December 31, 2019, 2020 and 2021, the interest incomes and the interest expenses were not material.
The gross amount of the loans provided to users is presented in the investing section of the cash flow statement unless the term of the receivables
is three month or less, in which case it is presented on a net basis by deducting the repayment from the users.
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Land use rights
Land use rights represent the prepayments for usage of the parcels of land where the office buildings are located, are recorded at cost, and are
amortized over their respective lease periods (usually over 40 to 50 years).
Property, equipment and software
Property, equipment and software are stated at cost less accumulated depreciation and amortization. Depreciation and amortization are computed
using the straight-line method over the following estimated useful lives, taking into account any estimated residual value:
Building
Leasehold improvements
Website-related equipment
Computer equipment
Furniture and fixtures
Software
30-40 years
Lesser of the term of the lease or the estimated useful lives of the assets
3-5 years
3-5 years
3-5 years
3-5 years
The Company recognizes the disposal of Property, equipment and software in general and administrative expenses.
Investments
The Company’s investments include equity method investments, equity securities without readily determinable fair values, equity securities with
readily determinable fair values, held to maturity debt securities, and available-for-sale debt securities.
The Company applies equity method in accounting for its investments in entities in which the Company has the ability to exercise significant
influence but does not have control and the investments are in either common stock or in-substance common stock. Unrealized gains on transactions
between the Company and an affiliated entity are eliminated to the extent of the Company’s interest in the affiliated entity, unrealized losses are also
eliminated unless the transaction provides evidence of an impairment of the asset transferred.
Equity securities without readily determinable fair values are measured and recorded using a measurement alternative that measures the securities
at cost minus impairment, if any, plus or minus changes resulting from qualifying observable price changes.
Equity securities with readily determinable fair values are measured and recorded at fair value on a recurring basis with changes in fair value,
whether realized or unrealized, recorded through the income statement.
On January 1 2021, the Company adopted Accounting Standards Update No. 2020-01, Investments— Equity Securities (Topic 321), Investments
—Equity Method and Joint Ventures (Topic 323), and Derivatives and Hedging (Topic 815), which did not have a material impact on the consolidated
financial statements. These amendments clarified that an entity should consider observable transactions that require it to either apply or discontinue the
equity method of accounting for the purposes of applying the measurement alternative in accordance with Topic 321 immediately before applying or
upon discontinuing the equity method. These amendments also clarified that for the purpose of applying paragraph 815-10-15-141(a) an entity should
not consider whether, upon the settlement of the forward contract or exercise of the purchased option, individually or with existing investments, the
underlying securities would be accounted for under the equity method in Topic 323 or the fair value option in accordance with the financial instruments
guidance in Topic 825.
Debt securities that the company has positive intent and ability to hold to maturity are classified as held to maturity debt securities and are stated
at amortized cost.
The Company has classified its investments in debt securities, other than the held to maturity debt securities, as available-for-sale securities.
Available-for-sale debt securities are reported at estimated fair value (Note 7) with the aggregate unrealized gains and losses, net of tax, reflected in
“Accumulated other comprehensive loss” in the consolidated balance sheets. If the amortized cost basis of an available-for-sale security exceeds its fair
value and if the Company has the intention to sell the security or it is more likely than not that the Company will be required to sell the security before
recovery of the amortized cost basis, an impairment is recognized in the consolidated statements of operations. If the Company does not have the
intention to sell the security and it is not more likely than not that the Company will be required to sell the security before recovery of the amortized cost
basis and the Company determines that the decline in fair value below the amortized cost basis of an available-for-sale security is entirely or partially
due to credit-related factors, the credit loss is measured and recognized as an allowance for credit losses along with the operating expense in the
consolidated statements of operations. The allowance is measured as the amount by which the debt security’s amortized cost basis exceeds the
Company’s best estimate of the present value of cash flows expected to be collected.
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The Company monitors its investments for other-than-temporary impairment by considering factors including, but not limited to, current
economic and market conditions, the operating performance of the companies including current earnings trends and other company-specific information.
Fair value measurement of financial instruments
Financial assets and liabilities of the Company primarily comprise of cash and cash equivalents, restricted cash, time deposits, financial products,
derivative instruments, accounts receivable, due from related parties, available-for-sale debt investments, equity securities, accounts payable, due to
related parties, advances from end users, short-term bank borrowings, other short-term liabilities and long-term debts. As of December 31, 2020 and
2021, except for derivative instruments, long-term debt, equity securities and available-for-sale debt investments, carrying values of these financial
instruments approximated their fair values because of their generally short maturities. The Company reports derivative instruments, equity securities and
available-for-sale debt investments at fair value at each balance sheet date and changes in fair value are reflected in the statements of income and
comprehensive income. The Company disclosed the fair value of its long-term debts based on Level 2 inputs in Note 17.
The Company measures its financial assets and liabilities using inputs from the following three levels of the fair value hierarchy. The three levels
are as follows:
Level 1 inputs are unadjusted quoted prices in active markets for identical assets that the management has the ability to access at the measurement
date.
Level 2 inputs include quoted prices for similar assets in active markets, quoted prices for identical or similar assets in markets that are not active,
inputs other than quoted prices that are observable for the asset (i.e., interest rates, yield curves, etc.), and inputs that are derived principally from or
corroborated by observable market data by correlation or other means (market corroborated inputs).
Level 3 includes unobservable inputs that reflect the management’s assumptions about the assumptions that market participants would use in
pricing the asset. The management develops these inputs based on the best information available, including the own data.
Business combination
U.S. GAAP requires that all business combinations not involving entities or businesses under common control be accounted for under the
acquisition method. The Company applies ASC 805, “Business combinations”, the cost of an acquisition is measured as the aggregate of the fair values
at the date of exchange of the assets given, liabilities incurred, and equity instruments issued. The costs directly attributable to the acquisition are
expensed as incurred. Identifiable assets, liabilities and contingent liabilities acquired or assumed are measured separately at their fair value as of the
acquisition date, irrespective of the extent of any non-controlling interests. The excess of the (i) the total of cost of acquisition, fair value of the
non-controlling interests and acquisition date fair value of any previously held equity interest in the acquiree over (ii) the fair value of the identifiable
net assets of the acquiree is recorded as goodwill. If the cost of acquisition is less than the fair value of the net assets of the subsidiary acquired, the
difference is recognized in the consolidated statements of income/(loss) and comprehensive income/(loss).
The determination and allocation of fair values to the identifiable assets acquired and liabilities assumed is based on various assumptions and
valuation methodologies requiring considerable management judgment. The most significant variables in these valuations are discount rates, terminal
values, growth rates, the number of years on which to base the cash flow projections, as well as the assumptions and estimates used to determine the
cash inflows and outflows. Management determines discount rates to be used based on the risk inherent in the related activity’s current business model
and industry comparisons. Terminal values are based on the expected life of products and forecasted life cycle and forecasted cash flows over that
period. The Company’s estimates of fair value are based upon assumptions believed to be reasonable, but which are inherently uncertain and
unpredictable and, as a result, actual results may differ from estimates. Any changes to provisional amounts identified during the measurement period
are recognized in the reporting period in which the adjustment amounts are determined.
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Acquisitions
During the periods presented, the Company completed several transactions to acquire controlling shares to enrich its products and to expand
business. The Company makes estimates and judgments in determining the fair value of the acquired assets and liabilities, based in part on independent
appraisal reports as well as its experience with purchasing similar assets and liabilities in similar industries. Major assumptions used in determining the
fair value of these acquired assets include revenue growth rate and weighted average cost of capital. The amount of excess of the purchase price over the
fair value of the identifiable assets and liabilities acquired is recorded as goodwill. The major acquisitions during the periods presented are as follows:
In April 2020, the Company consummated the acquisition of 100% equity interest of an online travel agency with the total cash consideration of
EUR100 million (RMB772 million). The net liability assumed based on their fair values was RMB304 million, including cash acquired with amount of
RMB41 million. The newly identifiable intangible assets were RMB72 million which primarily consist of tradename and supplier relationship. The
tradename is assessed to be indefinite-lived intangible assets. The fair values of the supplier relationship with amount of RMB28 million is amortized
over 10 years on a straight-line basis. The deferred tax liability of RMB16 million as recognized in associated with the identifiable intangible assets. The
goodwill recognized for the acquisition was RMB1.0 billion which primarily made up of the expected synergies from combining operations of the
acquiree and the acquirer, which do not qualify for separate recognition.
In September 2020, the Company consummated the acquisition of 100% equity interest of an online payment agency with the total cash
consideration of RMB 423 million. The net assets acquired based on their fair values was RMB61 million, including cash acquired with amount of
RMB113 million. The newly identifiable intangible asset was RMB324 million which primarily consist of a payment business license which is
amortized over fifteen years on a straight-line basis. The deferred tax liability of RMB81 million as recognized in associated with the identifiable
intangible assets. The goodwill recognized for the acquisition was RMB119 million which is primarily attributable to the expected synergies from the
online payment processing services that will complement the Company’s existing services offered through its online platforms.
In November 2019, the Company obtained control of an online travel agency company in which the Company previously had held 51% equity
interest with substantive participating rights being held by the non-controlling shareholder. The Company obtained control of the acquiree when the
non-controlling shareholder agreed to remove these substantive participating rights. The deemed consideration was the previous held 51% equity
interest with the fair value of RMB259 million. The net assets assumed based on their fair values was RMB115 million, including cash acquired with
amount of RMB11 million. The fair value of non-controlling interest was measured as RMB249 million, taking into account a non-controlling discount.
The goodwill recognized for the acquisition was RMB393 million which is primarily reflects the expected synergies. The Company also recognized a
gain from the re-measurement of its previously held equity interest to the fair value with amount of RMB196 million and reported in other
income/(expense) (Note 2).
Pro forma results of operations for these acquisitions have not been presented because they are not material to the consolidated income statements
for the years ended December 31, 2019, 2020 and 2021, either individually or in aggregate. Other immaterial acquisitions in 2019, 2020 and 2021 with
total consideration of RMB17 million, nil and RMB1.8 million respectively resulted in goodwill increase of nil, nil and nil respectively, and intangible
assets increase of nil, nil and RMB0.5 million respectively.
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Goodwill and other intangible assets
Goodwill represents the excess of the purchase price over the fair value of the identifiable assets and liabilities acquired as a result of the
Company’s acquisitions of interests in its subsidiaries and consolidated VIEs.
Goodwill is not amortized but is reviewed at least annually for impairment or earlier. The Company may first assess qualitative factors to
determine whether it is necessary to perform the quantitative goodwill impairment test, by taking into consideration of macroeconomics, overall
financial performance, industry and market conditions and the share price of the Company. If determined to be necessary, the quantitative impairment
test shall be used to identify goodwill impairment. Recoverability of goodwill is evaluated using a two-step process. In the first step, the fair value of a
reporting unit is compared to its carrying value. If the fair value of a reporting unit exceeded the carrying value of the net assets assigned to a reporting
unit, goodwill was considered not impaired and no further testing is required. If the carrying value of the net assets assigned to a reporting unit exceeded
the fair value of a reporting unit, the second step of the impairment test was performed in order to determine the implied fair value of a reporting unit’s
goodwill. Determining the implied fair value of goodwill required valuation of a reporting unit’s tangible and intangible assets and liabilities in a manner
similar to the allocation of purchase price in a business combination. If the carrying value of a reporting unit’s goodwill exceeded its implied fair value,
goodwill was deemed impaired and was written down to the extent of the difference. The Company estimated total fair value of the reporting unit using
discounted cash flow analysis, and made assumptions regarding future revenue, gross margins, working capital levels, investments in new products,
capital spending, tax, cash flows, and the terminal value of the reporting unit.
Starting in 2020, the Company adopted the FASB issued ASU 2017-04: Intangibles—Goodwill and Other (Topic 350): Simplifying the Test for
Goodwill Impairment. To simplify the subsequent measurement of goodwill, the Board eliminated Step 2 from the goodwill impairment test. Under the
amendments in this Update, an entity should perform its annual, or interim, goodwill impairment test by comparing the fair value of a reporting unit
with its carrying amount. An entity should recognize an impairment charge for the amount by which the carrying amount exceeds the reporting unit’s
fair value; however, the loss recognized should not exceed the total amount of goodwill allocated to that reporting unit. An entity should apply the
amendments in this Update on a prospective basis. An entity is required to disclose the nature of and reason for the change in accounting principle upon
transition. It is more likely that, by adopting simplified measurement which eliminates the Step 2 from goodwill impairment test, an entity with the
triggering event for goodwill impairment will recognize more goodwill impairment than it would do under the old model.
The Company evaluates if goodwill impairment may be indicated on quarterly basis and performs the annual goodwill impairment assessment as
of December 31. As of December 31, 2021, the Company qualitatively assessed relevant events and circumstances, including macroeconomics
conditions, industry and market considerations, its overall financial performance as well as the share price, and concluded by weighing all these factors
in their entirety that it was not more likely than not the fair value of the Company’s reporting unit was lower than its respective carrying value. There
was no impairment of goodwill during the years ended December 31, 2019, 2020 and 2021.
Separately identifiable intangible assets that have determinable lives continue to be amortized and consist primarily of non-compete agreements,
customer list, supplier relationship, technology, business relationship and payment business license as of December 31, 2020 and 2021. The Company
amortizes intangible assets on a straight-line basis over their estimated useful lives, which is three to fifteen years. The estimated life of amortized
intangibles is reassessed if circumstances occur that indicate the life has changed. Other intangible assets that have indefinite useful life primarily
include trademark and domain names. The Company evaluates indefinite-lived intangible assets each reporting period to determine whether events and
circumstances continue to support an indefinite useful life. If an intangible asset that is not being amortized is subsequently determined to have a finite
useful life, the asset is tested for impairment. The Company estimates total fair value of the reporting unit using discounted cash flow analysis, and
makes assumptions regarding future revenue, gross margins, working capital levels, investments in new products, capital spending, tax, cash flows, and
the terminal value of the reporting unit.
The Company reviews intangible assets with indefinite lives annually for impairment or earlier, if an indication of impairment exists.
No impairment on other intangible assets was recognized for the years ended December 31, 2019, 2020 and 2021, respectively.
Impairment of long-lived assets
Long-lived assets (including intangible with definite lives) are reviewed for impairment whenever events or changes in circumstances indicate that
the carrying amount of an asset may not be recoverable. Reviews are performed to determine whether the carrying value of an asset group is impaired,
based on comparison to undiscounted expected future cash flows. If this comparison indicates that there is impairment, the Company recognizes an
impairment of long-lived assets to the extent the carrying amount of such assets exceeds the fair value.
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Accrued liability for rewards program
The Company provides a discretionary (not provided for within end user contracts) loyalty points program to its end users. The points awarded
can be redeemed for cash or used to purchase gifts on the Company’s website and mobile platforms.
The estimated incremental costs of the loyalty points program are recognized as sales and marketing expense, or as a reduction of the revenue,
depending on whether it can be redeemed to gifts or redeemed for cash, and accrued for as a current liability. As members redeem awards or their
entitlements expire, the accrued liability is reduced correspondingly. For the years ended December 31, 2019, 2020 and 2021, the incremental costs
recognized for the rewards program were immaterial.
Deferred revenue
The Company offers a discretionary coupon program, through which the Company provides coupons to end users who book selected hotels online
through website. The end users who use the coupons receive credits in their virtual cash accounts upon check-out from the hotels and reviews for hotels
submitted. The end users may redeem the amount of credits in their virtual cash account in cash or voucher for their future bookings on the Company’s
website and mobile platforms. The Company accounts for the estimated cost of future usage of coupons as reduction of the revenue.
Revenue recognition
The Company recognizes the revenues in accordance with ASC 606, “Revenue from Contracts with Customers” (“ASC 606”). Under which, the
Company’s revenues are substantially reported on a net basis as the travel supplier is primarily responsible for providing the underlying travel services
and the Company does not control the service provided by the travel supplier to the traveler. Revenues are recognized at gross amounts for merchant
business where the Company undertakes substantive inventory risks by pre-purchasing inventories.
Revenue from accommodation reservation services, transportation ticketing services, packaged tours, and corporate travel are substantially
recognized at a point of time when the performance obligations that are satisfied. Revenue from other businesses comprise primarily of online
advertising services and financial services, which are recognized ratably over the time.
Accommodation reservation services
The Company receives commissions from travel suppliers for hotel room reservations through the Company’s transaction and service platform.
Commissions from hotel reservation services rendered are recognized when the reservation becomes non-cancellable which is the point considered when
the Company completes its performance obligation in accommodation reservation services which include reservation and various post-booking services.
Contracts with certain travel suppliers contain incentive commissions typically subject to achieving specific performance targets. The incentive
commissions are considered as variable consideration and are estimated and recognized to the extent that the Company is entitled to such incentive
commissions. The Company generally receives incentive commissions from monthly arrangements with hotels based on the number of hotel room
reservations where end users have completed their stay. The Company presents revenues from such transactions on a net basis in the statements of
income and comprehensive income as the Company, generally, does not control the service provided by the travel supplier to the traveler and has no
obligations for cancelled hotel reservations. The amount of accommodation reservation services revenues recognized at gross basis were immaterial
during the years ended December 31, 2019, 2020 and 2021, respectively.
Transportation ticketing services
Transportation ticketing services revenues mainly represent revenues from tickets reservations and other related services. The Company receives
commissions from travel suppliers for ticketing services through the Company’s transaction and service platform under various services agreements.
Commissions from ticketing services rendered are recognized after tickets are issued as this is when the Company’s performance obligation is satisfied.
The Company presents revenues from such transactions on a net basis in the statements of income as the Company, generally, does not control the
service provided by the travel supplier to the traveler and has no obligations for cancelled airline ticket reservations. Loss due to obligations for
cancelled ticket reservations is minimal in the past. The amount of transportation ticketing services revenues recognized at gross basis were immaterial
during the years ended December 31, 2019, 2020 and 2021, respectively.
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For year ended December 31, 2020, as a result of the COVID-19 pandemic, the Company received a significant volume of the requests from its
users for ticketing order cancellations and refunds due to the extended travel restrictions. For the orders of which the commissions were previously
recognized in 2019, the Company reversed the commission revenue upon the cancellation in 2020. For the year ended December 31, 2020, the amount
of the reversal of commission revenue previously recognized in 2019 is not material.
Packaged tours
The Company receives referral fees from travel product providers for packaged-tour products and services through the Company’s transaction and
service platform. Referral fees are recognized on the departure date of the tours as this is when the Company’s performance obligation is satisfied. The
Company presents revenues from such transactions on a net basis in the statements of income when the Company does not control the service provided
by the travel supplier to the traveler and has no obligations for cancelled packaged-tour products reservations. The Company presents majority of its
packaged-tour products and services revenues recognized on a net basis during the years ended December 31, 2019, 2020 and 2021, respectively.
Corporate travel
Corporate travel management revenues primarily include commissions from air ticket booking, hotel reservation and packaged-tour services
rendered to corporate clients. The Company contracts with corporate clients based on service fee model. Travel reservations are made via on-line and
off-line services for air tickets, hotel and package-tour. Revenue is recognized on a net basis after the services are rendered and collections are
reasonably assured.
Other businesses
Other businesses comprise primarily of online advertising services and financial services.
The Company receives advertising revenues, which principally represent the sale of banners or sponsorship on the website and mobile from
customers. Advertising revenues are recognized ratably over the fixed term of the agreement as services are provided. The financial service revenues
mainly represent the service fees from third party financial institutions for the Company’s platform services that are recognized ratably over the service
period as well as the interest income from the receivables due from the users that are recognized over the credit period. For the years ended December
31, 2019, 2020 and 2021, there was no service in other businesses that had the revenue exceeding 10% of the total revenue of the Company.
Allowance for expected credit losses
On January 1, 2020, the Company adopted the accounting standards update on the measurement of credit losses, which requires the Company to
estimate lifetime expected credit losses upon recognition of the financial assets. The Company adopted the accounting standards update using a
modified retrospective approach. Upon adoption of the new standard on January 1, 2020, the Company recorded a net decrease to its retained earnings
of RMB83 million, net of tax.
The Company’s accounts receivable, prepayments and other current assets (including the receivables of financial services), due from related
parties, long-term deposits and prepayments and long-term receivables due from related parties are within the scope of ASC Topic 326. The Company
has identified the relevant risk characteristics of its customers and the related receivables and prepayments, which include size, type of the reservation
services the Company provides or geographic location of the customer, or a combination of these characteristics. Receivables with similar risk
characteristics have been grouped into pools. For each pool, the Company considers the historical credit loss experience, current economic conditions,
supportable forecasts of future economic conditions, and any recoveries in assessing the lifetime expected credit losses. Other key factors that influence
the expected credit loss analysis include customer demographics, payment terms offered in the normal course of business to customers, and industry-
specific factors that could impact the Company’s receivables. Additionally, external data and macroeconomic factors are also considered. This is
assessed at each quarter based on the Company’s specific facts and circumstances.
Significant judgments and assumptions are required to estimate the allowance for expected credit losses on receivables from and prepayments to
customers and such assumptions may change in future periods, particularly the assumptions related to the impact of the COVID-19 pandemic on the
business prospects and financial condition of customers and the Company’s ability to collect the receivable or recover the prepayment. For the year
ended December 31, 2020, the Company facilitated and processed a significant volume of reservation cancellation requests from end users due to the
COVID-19 pandemic, causing a significant increase of the accounts receivables due from the customers (i.e. the travel suppliers) due to the fact that the
Company paid the refunds to the end users on behalf of its customers and expected to be reimbursed by its customers. Given the business disruptions
and financial challenges faced by the Company’s customers as driven by the COVID-19 pandemic, the Company has further analyzed the credit risks of
related customers considering recent credit losses, repayment patterns and business conditions. Such analysis was performed at the individual
customer’s level or at a group of customers level, depending on the amount and extent of overdue as well as the risk characteristics of the different
customers. As a result of such analysis, the company has increased its allowance for expected credit losses on both the receivables and prepayments
balances. As of December 31, 2021, no additional impairment indicators were identified; however, it is possible that the Company may have to record
additional significant provisions for expected credit losses in the future.
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The following table summarized the details of the Company’s allowance for expected credit losses (RMB in millions):
Allowance at beginning of year
Cumulative effect of adoption of new accounting standard
Deconsolidation of subsidiaries
Provisions for credit losses
Write-offs
Allowance at end of year
2021
2020
2019
156 256 799
— 83 —
— (27)
(1)
191 700 141
(91) (213) (124)
256 799 815
Cost of revenues
Cost of revenues consists primarily of payroll compensation of customer service center personnel, credit card service fee, payments to travel
suppliers, telecommunication expenses, direct cost of principal travel tour services, depreciation, rentals, direct cost of financial service and related
expenses incurred by the Company’s transaction and service platform which are directly attributable to the rendering of the Company’s travel related
services and other businesses.
Product development
Product development expenses include expenses incurred by the Company to develop the Company’s travel supplier networks as well as to
maintain, monitor and manage the Company’s transaction and service platform. The Company recognizes website, software and mobile applications
development costs in accordance with ASC 350-50 “Website development costs” and ASC 350-40 “Software — internal use software” respectively,
which are not material. The Company expenses all costs that are incurred in connection with the planning and implementation phases of development
and costs that are associated with repair or maintenance of the existing websites and mobile applications or the development of software or mobile
applications for internal use and websites content.
Sales and marketing
Sales and marketing expenses consist primarily of costs of payroll and related compensation for the Company’s sales and marketing personnel,
advertising expenses, and other related marketing and promotion expenses. Advertising expenses, amounting to approximately RMB5.5 billion,
RMB1.9 billion and RMB2.4 billion for the years ended December 31, 2019, 2020 and 2021 respectively, are charged to the statements of income as
incurred.
Share-based compensation
The Company grants restricted share units (“RSUs”) and share options of the Company to eligible employees. The Company accounts for share-
based awards issued to employees in accordance with ASC Topic 718 Compensation – Stock Compensation. Under ASC 718, the Company measures at
the grant date the fair value of the stock-based award and recognize compensation costs, net of estimated forfeitures, on a straight-line basis, over the
requisite service period. The Company applies the Black-Scholes valuation model in determining the fair value of options granted. Risk-free interest
rates are based on US Treasury yield for the terms consistent with the expected life of award at the time of grant. Expected life is based on historical
exercise patterns. Expected dividend yield is determined in view of the Company’s historical dividend payout rate and future business plan. The
Company estimates expected volatility at the date of grant based on historical volatilities. The fair values of RSUs are determined with reference to the
fair value of the underlying shares. Forfeiture rate is estimated based on historical forfeiture patterns and adjusted to reflect future change in
circumstances and facts, if any. If actual forfeitures differ from those estimates, the Company may need to revise those estimates used in subsequent
periods.
According to ASC 718, a change in any of the terms or conditions of stock options shall be accounted for as a modification of the plan. Therefore,
the Company calculates incremental compensation cost of a modification as the excess of the fair value of the modified option over the fair value of the
original option immediately before its terms are modified, measured based on the share price and other pertinent factors at the modification date. For
vested options, the Company would recognize incremental compensation cost in the period the modification occurs and for unvested options, the
Company would recognize, over the remaining requisite service period, the sum of the incremental compensation cost and the remaining unrecognized
compensation cost for the original award on the modification date.
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According to ASC 718, the Company classifies certain options or similar instruments as liabilities if the entity can be required under any
circumstances to settle the option or similar instrument by transferring cash or other assets and such cash settlement is probable. The percentage of the
fair value that is accrued as compensation cost at the end of each period shall equal the percentage of the requisite service that has been rendered at that
date. Changes in fair value of the liability classified award that occur during the requisite service period shall be recognized as compensation cost over
that period. Changes in fair value that occur after the end of the requisite service period are compensation cost of the period in which the changes occur.
Any difference between the amount for which a liability award is settled and its fair value at the settlement date as estimated is an adjustment of
compensation cost in the period of settlement.
Share incentive plans (share numbers have reflected the effect of Share Subdivision on March 18, 2021)
In October, 2007, the Company adopted a 2007 Share Incentive Plan (“2007 Incentive Plan”). As of December 31, 2020 and 2021, 17,067,456 and
15,290,480 options and 23,192 and 320 RSUs were outstanding under the 2007 Incentive Plan.
In June, 2017, the Company adopted a Global Share Incentive Plan (“Global Incentive Plan”). The Company granted 8,921,248 and 15,404,097
new share options and 550,888 and 255,004 new RSUs to employees with 4 year requisite service period for year ended December 31, 2020 and 2021,
respectively. As of December 31, 2020 and 2021, 40,516,400 and 50,790,639 options and 911,320, and 869,300 RSUs were outstanding under the
Global Incentive Plan.
In December 2019, the Company completed a one-time modification of share options (the “Modification”), pursuant to which eligible employees
were able to exchange every four share options previously granted under the 2007 Incentive Plan or the Global Incentive Plan for one new option that
entitles each eligible grantee to purchase one ordinary share, provided that the eligible options previously granted (and subject to exchange) each had an
exercise price exceeding US$40 per ordinary share. The exercise price of each new option is US$0.00125 per ordinary share and the vesting schedules
remaining unchanged. As a result of the Modification, 6,686,792 options were exchanged for 1,672,208 new options. The incremental compensation
cost of the Modification was immaterial.
As detailed in Note 2 “basis of presentation”, following the Share Subdivision that became effective on March 18, 2021, each ordinary share was
subdivided into eight ordinary shares and each ADS represents one ordinary share. Prior and subsequent to March 18, 2021, one ordinary share was
issuable upon the vesting of one outstanding restricted share or the exercise of one outstanding share option, respectively. Therefore, following the Share
Subdivision, each share option and restricted share is subdivided into eight share options and eight restricted shares, and the weighted average grant date
fair value per restricted share and the weighted average exercise price per share option are diluted by eight times. The number of restricted shares and
share options, the weighted average grant date fair value per restricted share and the weighted average exercise price per share option has been
retrospectively adjusted for the Share Subdivision in the following tables. The Share Subdivision does not have any impact on the compensation cost of
the Company.
The following table summarized the Company’s share option activity under all the option plans (in US$, except for shares):
Outstanding at December 31, 2018
Granted
Exercised
Forfeited
Modified
Converted from modification
Outstanding at December 31, 2019
Granted
Exercised
Forfeited
Outstanding at December 31, 2020
Granted
Exercised
Forfeited
Outstanding at December 31, 2021
Vested and expect to vest at December 31, 2021
Exercisable at December 31, 2021
Number of
Shares
(Note i)
53,672,064
13,520,720
(5,883,328)
(1,925,976)
(6,686,792)
1,672,208
54,368,896
8,921,248
(3,495,960)
(2,210,328)
57,583,856
15,404,097
(5,106,035)
(1,800,799)
66,081,119
63,410,097
32,693,344
Weighted
Average
Exercise
Price
(Note i, ii)
24.77
19.87
11.39
20.93
42.36
0.00
22.21
15.87
6.96
12.00
22.55
18.46
9.32
7.9
23.02
23.13
25.89
Weighted
Average
Remaining
Contractual
Life (Years)
(Note i)
5.62
Aggregate
Intrinsic Value
(in millions)
(Note i)
366
5.63
679
5.16
704
5.42
5.38
4.52
398
376
123
Note i: The number of restricted shares and weighted average exercise price have been retrospectively adjusted for the Share Subdivision that became effective on March 18, 2021
(Note 2 and Note 20)
Note ii: The weighted average exercise price has been adjusted for the Modification in December 2019 (Note 2)
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Table of Contents
The Company’s current practice is to issue new shares to satisfy share option exercises.
The expected-to-vest options are the result of applying the pre-vesting forfeiture rate assumptions of 8% to total unvested options.
The aggregate intrinsic value in the table above represents the total intrinsic value (the aggregate difference between the Company’s closing stock
price of US$24.62 (US$24.62 per ADS) as of December 31, 2021 and the exercise price for in-the-money options) that would have been received by the
option holders if all in-the-money options had been exercised on December 31, 2021.
The total intrinsic value of options exercised during the years ended December 31, 2019, 2020 and 2021 were US$162 million US$159 million
and US$128 million, respectively.
The weighted average fair value of options granted after Share Subdivision during the years ended December 31, 2019, 2020 and 2021 was
US$19.47, US$15.67 and US$19.94 per share, respectively.
As of December 31, 2021, there was US$436 million of total unrecognized compensation cost, net of estimated forfeitures, related to unvested
share options which are expected to be recognized over a weighted average period of 2.4 year. Total unrecognized compensation cost may be adjusted
for future changes in estimated forfeitures. Total cash received from the exercise of share options amounted to RMB467 million, RMB159 million and
RMB307 million for the years ended December 31, 2019, 2020 and 2021, respectively. The transfer agent was engaged by the Company to collect the
exercise proceeds and remitted on a regular basis and these amounts were included in “prepayments and other current assets”.
The Company calculated the estimated fair value of share options on the date of grant using the Black-Scholes pricing model with the following
assumptions:
Risk-free interest rate
Expected life (years)
Expected dividend yield
Volatility
Fair value of options at grant date per share
2019
2020
1.40%-2.44% 0.21%-1.32% 0.21%-1.18%
4 – 5
0%
5
0%
2021
42%-43%
40%-43%
from US$11.37
to US$32.38
from US$8.12
to US$31.99
4 – 5
0%
39%-43%
from US$8.61
to US$39.17
The following table summarizes the Company’s RSUs activities under all incentive plans (in US$, except for shares):
Restricted shares
Unvested at December 31, 2018
Granted
Vested
Forfeited
Unvested at December 31, 2019
Granted
Vested
Forfeited
Unvested at December 31, 2020
Granted
Vested
Forfeited
Unvested at December 31, 2021
Number of Shares
(Note i)
Weighted average grant
date fair value (US$)
(Note i)
5,097,648
150,000
(954,672)
(284,208)
4,008,768
550,888
(3,439,944)
(185,200)
934,512
255,004
(215,484)
(104,412)
869,620
37.81
37.33
36.89
38.72
37.94
28.49
37.53
38.42
33.79
31.35
37.26
30.12
32.65
Note i: The number of restricted shares and weighted average grant date fair value have been retrospectively adjusted for the Share Subdivision
that became effective on March 18, 2021 (Note 2 and Note 20).
As of December 31, 2021, there was US$15 million unrecognized compensation cost, net of estimated forfeitures, related to unvested restricted
shares, which are to be recognized over a weighted average vesting period of 1.5 years. Total unrecognized compensation cost may be adjusted for
future changes in estimated forfeitures. The Company determined the fair value of RSUs based on its stock price on the date of grant.
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Leases
The Company applied ASC 842, Leases, on January 1, 2019 on a modified retrospective basis and has elected not to recast comparative periods.
The Company determines if an arrangement is a lease at inception. Operating leases are primarily for office and operation space and are included in
right-of-use (“ROU”) assets, other payables and accruals and long-term lease liabilities on its consolidated balance sheets. ROU assets represent the
Company’s right to use an underlying asset for the lease term and lease liabilities represent its obligation to make lease payments arising from the lease.
The operating lease ROU assets and liabilities are recognized at lease commencement date based on the present value of lease payments over the lease
term. As most of the Company’s leases do not provide an implicit rate, the Company uses its incremental borrowing rate based on the information
available at lease commencement date in determining the present value of lease payments. The operating lease ROU asset also includes any lease
payments made and excludes lease incentives. The Company’s lease terms may include options to extend or terminate the lease. Renewal options are
considered within the ROU assets and lease liability when it is reasonably certain that the Company will exercise that option. Lease expense for lease
payments is recognized on a straight-line basis over the lease term.
For operating leases with a term of one year or less, the Company has elected not to recognize a lease liability or ROU asset on its consolidated
balance sheet. Instead, it recognizes the lease payments as expense on a straight-line basis over the lease term. Short-term lease costs are immaterial to
its consolidated statements of operations and cash flows. The Company has operating lease agreements with insignificant non-lease components and
have elected the practical expedient to combine and account for lease and non-lease components as a single lease component.
Upon the adoption of the new lease standard, on January 1, 2019, the Company recognized operating lease assets of RMB1.0 billion and total
operating lease liabilities of RMB980 million (including a current liability of RMB322 million) in the consolidated balance. There was no impact to
retained earnings at adoption.
Taxation
Current income taxes are provided on the basis of net income for financial reporting purposes, adjusted for income and expense items which are
not assessable or deductible for income tax purposes, in accordance with the regulations of the relevant tax jurisdictions. Deferred income taxes are
provided using the balance sheet liability method. Under this method, deferred income taxes are recognized for the tax consequences of significant
temporary differences by applying enacted statutory rates applicable to future years to differences between the financial statement carrying amounts and
the tax bases of existing assets and liabilities. The tax base of an asset or liability is the amount attributed to that asset or liability for tax purposes. The
effect on deferred taxes of a change in tax rates is recognized in income in the period enacted. A valuation allowance is provided to reduce the amount
of deferred tax assets if it is considered unlikely that some portion of, or all of, the deferred tax assets will not be realized.
The Company applies ASC 740, “Income Taxes”. It clarifies the accounting for uncertainty in income taxes recognized in the Company’s
consolidated financial statements and prescribes a more likely than not threshold for financial statement recognition and measurement of a tax position
taken or expected to be taken in a tax return. It also provides guidance on derecognition of income tax assets and liabilities, classification of current and
deferred income tax assets and liabilities, accounting for interest and penalties associated with tax positions, accounting for income taxes in interim
periods, and income tax disclosures.
Other income/(expense)
Other income/(expense) consists of financial subsidies and investment income/(loss). Financial subsidies primarily relate to the non-recurring
grants by central and local governments of China. The Company recognizes the income when the grants are received and no further conditions need to
be met. Components of other income/(expense) were as follows (RMB in millions):
Gain on deconsolidation of subsidiaries (Note 18)
Subsidy income
Settlement of provision and contingent liability balances related to an equity method investment
(a)
Gain from the re-measurement of the previously held equity interest to the fair value in the
business acquisition (Note 2)
Foreign exchange (losses)/gains
Gain/(loss) on disposal of long-term investments (Note 7)
Fair value changes of equity securities investments and Exchangeable Senior Notes
Impairments of long-term investments
Others
Total
2019
2021
2020
161 1,091 —
589 601 550
603 — —
(40)
196 — —
(378)
1
318 (602) 63
2,334 (612) (170)
(205) (905) (96)
12 194 25
3,630 (273) 373
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Table of Contents
(a)
Skysea Holding International Ltd. (“Skysea”) used to be an equity investment of the Company. In 2017, based on the impairment
assessment by considering the operating results, market condition and business updates, a provision of RMB536 million for the loan and
receivable balance due from Skysea was provided and a liability of RMB367 million for the contingent payable was recorded which
reflected the then best estimates of the liability to be assumed by the Company and offset by the proceeds from the net realisable value of
Skysea in the event of winding down of its business. In 2019, Skysea completed its winding down of the business and the Company
entered into the final settlement with Skysea. According to the final settlement, the Company collected the amount due from Skysea and
settled the provision and contingent liability of RMB603 million as other income, which includes RMB236 million provision previously
made for loan receivable and RMB367 million previously provided for contingent payables.
Statutory reserves
The Company’s PRC subsidiaries and the VIEs are required to allocate at least 10% of their after-tax profit to the general reserve in accordance
with the PRC accounting standards and regulations. The allocation to the general reserve will cease if such reserve has reached to 50% of the registered
capital of respective company. Appropriations to discretionary surplus reserve are at the discretion of the board of directors of the VIEs. These reserves
can only be used for specific purposes and are not transferable to the Company in form of loans, advances, or cash dividends. There is no such
regulation of providing statutory reserve in Hong Kong.
Dividends
Dividends are recognized when declared.
PRC regulations currently permit payment of dividends only out of accumulated profits as determined in accordance with PRC accounting
standards and regulations. The Company’s PRC subsidiaries can only distribute dividends after they have met the PRC requirements for appropriation to
statutory reserves. Additionally, as the Company does not have any direct ownership in the VIEs, the VIEs cannot directly distribute dividends to the
Company. The PRC government imposes control over its foreign currency reserves in part through direct regulation of the conversion of RMB into
foreign exchange and through restrictions on foreign trade. As the majority of the Company’s revenues are in RMB, any restrictions on currency
exchange may limit the Company’s ability to use revenue generated in RMB to fund the Company’s business activities outside China or to make
dividend payments in U.S. dollars. However, the Company believes the restrictions on currency exchange imposed by the PRC foreign exchange
regulations and enforced by the PRC State Administration of Foreign Exchange (“SAFE”) do not constitute the “restrictions” under Rule 4-08(e)(3)
under Regulation S-X, because such restrictions in substance do not prohibit the Company’s subsidiaries or VIEs from transferring net assets to the
Company in the combined forms of loans, advances and cash dividends without the consent of SAFE, provided that certain procedural formalities
should be complied with. As of December 31, 2021, the restricted net assets of the Company’s PRC subsidiaries and VIEs not distributable in the form
of dividends to the parent as a result of the aforesaid PRC regulations and other restrictions were RMB6.5 billion.
As a result of the aforementioned PRC regulation and the Company’s organizational structure, accumulated profits of the subsidiaries in PRC
distributable in the form of dividends to the parent as of December 31, 2019, 2020 and 2021 were RMB21.9 billion, RMB25.8 billion and
RMB28.4 billion, respectively. The Company’s PRC subsidiaries and VIEs are able to enter into royalty and trademark license agreements or certain
other contractual arrangements at the sole discretion of the Company, for which the compensatory element of the arrangement is deducted from the
accumulated profits.
Effective January 1, 2008, current EIT Law imposes a 10% withholding income tax for dividends distributed by foreign invested enterprises to
their immediate holding companies outside mainland China. A lower withholding tax rate will be applied if there is a tax treaty arrangement between
mainland China and the jurisdiction of the foreign holding company. Distributions to holding companies in Hong Kong that satisfy certain requirements
specified by PRC tax authorities, for example, will be subject to a 5% withholding tax rate. Furthermore, pursuant to the applicable circular and
interpretations of the current EIT Law, dividends from earnings created prior to 2008 but distributed after 2008 are not subject to withholding income
tax.
No dividends have been paid or declared by the Company during the years ended December 31, 2019, 2020 and 2021.
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Table of Contents
Earnings/(losses) per share
In accordance with “Computation of Earnings Per Share”, basic earnings per share is computed by dividing net income attributable to common
shareholders by the weighted average number of common shares outstanding during the year. Diluted earnings per share is calculated by dividing net
income attributable to common shareholders as adjusted for the effect of dilutive ordinary equivalent shares, if any, by the weighted average number of
ordinary and dilutive ordinary equivalent shares outstanding during the year. Dilutive ordinary equivalent shares consist of ordinary shares issuable upon
the exercise of outstanding share options (using the treasury stock method). Vested but unexercised stock options with exercise prices that represent little
or no consideration are included in the weighted average shares outstanding in the basic earnings per share calculation.
If the number of common shares outstanding increases as a result of a stock dividend or stock split or decreases as a result of a reverse stock split,
the computations of basic and diluted EPS shall be adjusted retroactively for all periods presented to reflect that change in capital structure. If changes in
common stock resulting from stock dividends, stock splits, or reverse stock splits occur after the close of the period but before the financial statements
are issued or are available to be issued, the per-share computations for those and any prior-period financial statements presented shall be based on the
new number of shares.
On March 18, 2021, the Company effected a share split by one-to-eight subdivision of shares (“Share Subdivision”) and a change in the ADS ratio
proportionate to the Share Subdivision from eight (8) ADSs representing one (1) ordinary share to one (1) ADS representing one (1) ordinary share. The
basic and diluted EPS are adjusted retroactively for all periods presented to reflect these changes.
Treasury stock
The share-repurchase programs do not require the Company to acquire a specific number of shares and may be suspended or discontinued at any
time.
Segment reporting
The Company operates and manages its business as a single segment. Resources are allocated and performance is assessed by the CEO, who is
determined to be the Chief Operating Decision Maker (CODM). Since the Company operates in one reportable segment, all financial and product
information required can be found in the consolidated financial statements.
The Company primarily generates its revenues from the Greater China Area, for geographic information, please refer to Note 21.
Recent Accounting Pronouncements
In January 2020, the FASB issued Accounting Standards Update No. 2020-01, Investments — Equity Securities (Topic 321), Investments —
Equity Method and Joint Ventures (Topic 323), and Derivatives and Hedging (Topic 815): Clarifying the Interactions between Topic 321, Topic 323, and
Topic 815. The amendments clarified that an entity should consider observable transactions that require it to either apply or discontinue the equity
method of accounting for the purposes of applying the measurement alternative in accordance with Topic 321 immediately before applying or upon
discontinuing the equity method. The amendments also clarified that for the purpose of applying paragraph 815-10-15-141(a) an entity should not
consider whether, upon the settlement of the forward contract or exercise of the purchased option, individually or with existing investments, the
underlying securities would be accounted for under the equity method in Topic 323 or the fair value option in accordance with the financial instruments
guidance in Topic 825. An entity also would evaluate the remaining characteristics in paragraph 815-10-15-141 to determine the accounting for those
forward contracts and purchased options. For public business entities, the amendments in this Update are effective for fiscal years beginning after
December 15, 2020, and interim periods within those fiscal years. The Company adopted this update in the first quarter of 2021 and the adoption did not
have a material impact to the Company’s Consolidated Financial Statements.
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Table of Contents
In March 2020, the FASB issued ASU 2020-04, “Reference Rate Reform (Topic 848): Facilitation of the Effects of Reference Rate Reform on Financial
Reporting”, which provides optional expedients and exceptions for applying U.S. GAAP on contract modifications and hedge accounting to contracts, hedging
relationships, and other transactions that reference LIBOR or another reference rate expected to be discontinued because of reference rate reform, if certain criteria are
met. These optional expedients and exceptions provided in ASU 2020-04 are effective for the Company as of March 12, 2020 through December 31, 2022. The Company
is currently evaluating the impact.
In August 2020, the FASB issued a new accounting update relating to convertible instruments and contracts in an entity’s own equity. For convertible instruments,
the accounting update reduces the number of accounting models for convertible debt instruments and convertible preferred stock. Limiting the accounting models results
in fewer embedded conversion features being separately recognized from the host contract as compared with current U.S. GAAP. The accounting update amends the
guidance for the derivatives scope exception for contracts in an entity’s own equity to reduce form-over-substance-based accounting conclusions. The accounting update
also simplifies the diluted earnings per share calculation in certain areas. For public business entities, the update is effective for fiscal years beginning after December 15,
2021, including interim periods within those fiscal years. Early adoption is permitted for fiscal years beginning after December 15, 2020 and interim periods within those
fiscal years. Entities are allowed to apply this update on either a full or modified retrospective basis. The Company is in the process of evaluating the impact of the
Update on its consolidated financial statements.
In May 2021, the FASB issued ASU No. 2021-04, Earnings Per Share (Topic 260), Debt — Modifications and Extinguishments (Subtopic 470-50), Compensation
— Stock Compensation (Topic 718), and Derivatives and Hedging — Contracts in Entity’s Own Equity (Subtopic 815-40) to clarify and reduce diversity in an issuer’s
accounting for modifications or exchanges of freestanding equity classified written call options (for example, warrants) that remain equity classified after modification or
exchange. The amendments in this update are effective for all entities for fiscal years beginning after December 15, 2021, including interim periods within those fiscal
years. An entity should apply the amendments prospectively to modifications or exchanges occurring on or after the effective date of the amendments. The Company is
in the process of evaluating the impact of the new guidance on its consolidated financial statements.
In October 2021, the FASB issued ASU No. 2021-08, Business Combinations (Topic 805): Accounting for Contract Assets and Contract Liabilities from Contracts
with Customers (ASU 2021-08), which clarifies that an acquirer of a business should recognize and measure contract assets and contract liabilities in a business
combination in accordance with Topic 606, Revenue from Contracts with Customers. The new amendments are effective for us are effective for fiscal years beginning
after December 15, 2022, including interim periods within those fiscal years. The amendments should be applied prospectively to business combinations occurring on or
after the effective date of the amendments, with early adoption permitted. The Company is in the process of evaluating the impact of the new guidance on its
consolidated financial statements.
Certain risks and concentration
Financial instruments that potentially subject the Company to significant concentrations of credit risk consist primarily of cash and cash equivalents, restricted
cash, short-term investments, accounts receivable, amounts due from related parties, prepayments and other current assets. As of December 31, 2019, 2020 and 2021,
substantially all of the Company’s cash and cash equivalents, restricted cash and short-term investments were held in major financial institutions located in the PRC and
in Hong Kong, which management considers to be of high credit quality based on their credit ratings. Accounts receivable are generally unsecured and denominated in
RMB, and are derived from revenues earned from operations arising primarily in the PRC.
No individual customer accounted for more than 10% of net revenues for the years ended December 31, 2019, 2020 and 2021. No individual customer accounted
for more than 10% of accounts receivable as of December 31, 2020 and 2021.
Impact of COVID-19
The Company’s businesses, results of operation, financial positions and cash flows are materially and adversely affected by the COVID-19 pandemic, including
but not limited to the material adverse impact on the Company’s revenues and operation results as result of the travel restrictions as well as significant incremental costs
and expenses incurred when facilitating the end users in their cancellations and refund requests. The impacts of COVID-19 may also include slower collection of
receivables and additional credit losses and significant downward adjustments or impairment to the Company’s long-term investments and goodwill if the impacts
become other than temporary.
Because the significant uncertainties surrounding the COVID-19 on the Company’s business is still evolving, the extent of the business disruption, including the
duration and the related financial impact on subsequent periods cannot be reasonably estimated at this time.
3.
PREPAYMENTS AND OTHER CURRENT ASSETS
Components of prepayments and other current assets as of December 31, 2020 and 2021 were as follows (RMB in millions):
Prepayments and other deposits
Receivable related to financial services (Note 2)
Prepaid expenses
Interest receivables
Others
Total
F-31
2020
3,931
2,462
454
350
658
7,855
2021
3,952
3,679
224
621
556
9,032
Table of Contents
4.
LONG-TERM DEPOSITS AND PREPAYMENTS
The Company is required to pay certain amounts of deposits to airline companies and hotel suppliers. The Company is also required to pay
deposits to local travel bureaus as a pledge for insurance of traveler’s safety.
Components of long-term deposits and prepayments as of December 31, 2020 and 2021 were as follows (RMB in millions):
Deposits paid to airline suppliers
Deposit paid to lessor
Deposits paid to advertising suppliers
Deposits paid to hotel suppliers
Others
Total
2020 2021
221 183
72 65
54 35
13 17
51 71
411 371
5.
LAND USE RIGHTS
Land use rights are amortized under straight-line method through the respective period of land rights, which are from 40-50 years. Amortization
expense for the years ended December 31, 2019, 2020 and 2021 was approximately RMB3 million, RMB3 million and RMB3 million, respectively. As
of December 31, 2020 and 2021, the net book value was RMB88 million and RMB86 million respectively.
6.
PROPERTY, EQUIPMENT AND SOFTWARE
Property, equipment and software and its related accumulated depreciation and amortization as of December 31, 2020 and 2021 were as follows
(RMB in millions):
Buildings
Computer equipment
Website-related equipment
Furniture and fixtures
Software
Leasehold improvements
Construction in progress
Less: accumulated depreciation and amortization
Total net book value
2020
2021
5,424 5,408
1,065 1,040
1,402 1,623
229
283
651
665
222
169
0
1
(3,229) (3,639)
5,780 5,534
Depreciation expense for the years ended December 31, 2019, 2020 and 2021 was RMB656 million, RMB790 million and RMB723 million,
respectively.
7.
INVESTMENTS
The Company’s long-term investments are consisted of the follows (RMB in millions):
Debt investments
Equity investments
Debt investments
Held to maturity debt securities
2020
2021
18,213 16,467
29,730 28,494
47,943 44,961
Held to maturity investments were time deposits and financial products in commercial banks with maturities of more than one year with the
carrying amount of RMB15.4 billion and RMB13.1 billion as of December 31, 2020 and 2021 respectively. As of December 31, 2020 and 2021, the
weighted average maturities periods are 1.8 years and 1.7 years, respectively.
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Available-for-sale debt investments
The following table summarizes the Company’s available-for-sale debt investments (RMB in millions):
Cost, after adjusted with other-than-temporary impairment
Gross Unrealized Gains, including foreign exchange adjustment
Gross Unrealized Losses, including foreign exchange adjustment
Fair Value
2020
2021
3,134 3,734
173 271
(451) (651)
2,856 3,354
For the years ended December 31, 2019, 2020 and 2021, the unrealized securities holding gain/(loss), net of tax of RMB5 million, RMB(21)
million and RMB1 million, respectively, was reported in other comprehensive income/(loss).
At December 31, 2021, the Company did not have the intent or a requirement to sell its available-for-sale debt investments. The Company
believes that the decline in fair value of the investment is largely due to changes in market and economic conditions related to a temporary impact from
COVID-19 pandemic. The Company also reviewed other available information and at December 31, 2021, concludes the amortized cost basis of the
investment is able to be recovered.
Equity investments
Equity securities with readily determinable fair values
The following table summarizes the Company’s equity securities with readily determinable fair values (RMB in millions):
Cost, after adjusted for other-than-temporary impairments
Gross Unrealized Gains, including foreign exchange adjustment
Gross Unrealized Losses, including foreign exchange adjustment
Fair Value
2020
2021
4,765 4,070
6,309 5,097
(839) (596)
10,235 8,571
Equity securities with readily determinable fair values are measured and recorded at fair value on a recurring basis with changes in fair value,
whether realized or unrealized, recorded through the income statement. The change of fair value is reported in other income/(expense).
Equity securities without readily determinable fair values
Equity securities without readily determinable fair values and over which the Company has neither significant influence nor control through
investments in common stock or in-substance common stock, are measured and recorded using a measurement alternative that measures the securities at
cost minus impairment, if any, plus or minus changes resulting from qualifying observable price changes. The carrying value of equity securities without
readily determinable fair values was RMB588 million and RMB604 million as of December 31, 2020 and 2021 respectively. There is no fair value
changes related to these investments for the years ended December 31, 2020 and 2021. None of the investments individually is considered as material to
the Company’s financial position.
For the years ended December 31, 2019, 2020 and 2021, the Company disposed certain equity securities without readily determinable fair values
for total consideration of RMB0 million, RMB30 million and RMB15 million, respectively, which results a gain/(loss) of RMB(1) million,
RMB1 million and RMB(4) million as reported in other income/(expense), respectively.
For the years ended December 31, 2019, 2020 and 2021, the Company made investments in equity investments without readily determinable fair
values with amount of RMB89 million, RMB94 million and RMB45 million, respectively.
Equity method investments
In December 2016, in connection with a share exchange transaction with BTG Hotels Company (“BTG”) and Homeinns Hotel Company
(“Homeinns”), the Company exchanged its previously held equity interest in Homeinns for 22% equity interest of BTG. The Company applied equity
method to account for the investment in BTG on one quarter lag basis. In 2021, the Company consummated a transaction to sell approximately 9 million
BTG’s shares in open market for a total consideration of RMB201 million which resulted in a gain of RMB41 million reported in “Other income/
(expense)” (Note 2). After the transaction, the Company holds 14.40% equity interest of BTG and is still able to exercise significant influence over BTG
(due, primarily, to the Company’s ability to appoint one member to the BTG Board of Directors), and continuously recorded this investment as an equity
method investment. As of December 31, 2020 and 2021, the carrying value of its investment in BTG were RMB2.7 billion and RMB2.6 billion
respectively, the change of which primarily relates to the disposal of the equity investment and the equity income or loss recognized.
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Tujia used to be a subsidiary of the Company. In 2015, after a private placement of Tujia, the Company lost the control in Tujia. In 2017, Tujia
completed a restructure and its offline business was assumed by Tujia Offline, a newly established company and the Company converted part of its
redeemable preferred shares investment in Tujia to common shares of Tujia and Tujia Offline. After that the Company has common shares investments
on Tujia and Tujia Offline and redeemable preferred shares investment on Tujia. The Company concluded that although whilst it has majority ownership
of Tujia, it does not have control over Tujia since the Company does not have control of the board of directors of Tujia, which makes all the significant
decisions of Tujia. Therefore, the Company applies equity method for its common shares investments on Tujia and Tujia Offline on one quarter lag
basis. As of December 31, 2019, the carrying value of the equity method investments was RMB1.0 billion. In 2020, Tujia Offline consummated an
external financing, together with the new investors, the Company obtained certain preferential rights, including the redemption rights at the Company’s
option and liquidation preference. As a result of which, its investment was no longer considered as in substance of common stock. Therefore, the
investment on Tujia Offline was then accounted for as available-for-sale debt security with the initial fair value of RMB 0.5 billion, and the previously
held equity method investment on Tujia Offline of RMB1.0 billion was derecognized as an extinguishment with a deemed disposal loss of
RMB0.4 billion recognized in other loss. The redeemable preferred shares investment in Tujia was accounted for as available-for- sale debt security. In
2021, the Company subscribed additional redeemable preferred shares of Tujia with a total consideration of RMB 700 million. As of December 31, 2020
and 2021, fair value of the redeemable preferred shares were RMB1.9 billion and RMB2.4 billion, respectively. For the years ended December 31, 2020
and 2021, the fair value change losses of the redeemable preferred shares investment in Tujia were RMB70 million and RMB139 million, respectively,
and was reported in other comprehensive income/(loss). The Company believes the fair value change losses of the redeemable preferred shares
investment in Tujia was mainly due to the adverse changes in market and economic conditions related to the temporary impact from COVID-19
pandemic.
In May 2015, the Company acquired approximately 38% share capital of eLong, Inc. (“eLong”) and applied equity method on one quarter lag
basis. In May 2016, eLong completed its “going-private” transaction and merger with E-dragon Holdings Limited (“E-dragon”) (“Reorganization”).
After the Reorganization, the Company applies equity method for its ordinary shares investment in E-dragon’s on one quarter lag basis and the preferred
shares of E-dragon are classified as available-for-sale debt security. In March 2018, E-dragon consummated a merger with Tongcheng Network
Technology Co.,Ltd (“LY.com”) with share swap transaction. The Company received an equity method investment in the enlarged group with previously
held equity investment and preferred shares of E-dragon be exchanged. The Company recognized the gain of RMB847 million as reported in other
income on receipts the shares in the enlarged group in 2018, and recognized the gain of RMB267 million as reported in other income when certain
accrued tax related indemnification liability for the other shareholders of LY.com was reversed based on the final settlement in 2019. During the year
ended December 31, 2018, the Company acquired additional equity interest with total consideration of RMB1.4 billion. After these transactions, the
Company has 27% equity interest in the enlarged group and applied equity method for this investment. As of December 31, 2020 and 2021, the carrying
value of its equity investment was RMB5.5 billion and RMB5.7 billion respectively, the change of which primarily relates to the equity income
recognized.
The shares of MakeMyTrip Limited (“MakeMyTrip”) are listed in Nasdaq Stock Exchange. The Company used to hold approximately 10% equity
interest in MakeMyTrip and accounted for the investment as equity securities with readily determinable fair values. In August 2019, the Company
consummated a share exchange transaction with Naspers Limited (“Naspers”), a shareholder of MakeMyTrip, pursuant to which Naspers exchanged
certain ordinary shares and Class B convertible ordinary shares of MakeMyTrip for the Company’s newly issued 4,108,831 ordinary shares. Concurrent
with the share exchange, the Company made the investment in a third-party investment entity by contributing certain ordinary shares and Class B shares
of MakeMyTrip held by the Company and recorded the investment using equity method. After these transactions, the Company owns ordinary shares
and Class B shares of MakeMyTrip, representing approximately 49% of MakeMyTrip’s total voting power with the total consideration of approximately
US$1.2 billion (RMB8.7 billion), which included US$1.0 billion (RMB6.9 billion) newly issued ordinary shares of the Company and US$0.2 billion
(RMB1.8 billion) of its previously held equity investment. The Company applied equity method to account for the investment in MakeMyTrip on one
quarter lag basis. In 2020, as result of the adverse impact on the business of MakeMyTrip from the COVID-19 pandemic which is considered as other-
than-temporary on its business, the Company recorded an impairment loss on its investment in the amount of RMB0.7 billion. As of December 31, 2020
and 2021, the carrying value of its investment was RMB5.7 billion and RMB5.6 billion.
As of December 31, 2021, equity method investments that are publicly traded with an aggregate carrying amount of RMB14.0 billion have
increased in value and the total market value of these investments amounted to RMB19.5 billion.
The Company made some investments in several third party investment funds and accounted for the investments under the equity methods. As of
December 31, 2020 and 2021, the carrying value of these investments were RMB2.5 billion and RMB3.0 billion respectively.
As of December 31, 2020 and 2021, the carrying value of the remaining equity method investments were RMB2.4 billion and RMB2.3 billion,
respectively.
F-34
Table of Contents
The Company summarizes the condensed financial information of the Company’s equity method investments as a group below in compliance with
Rule 4-08 of Regulation S-X (RMB in millions).
Operating data:
Revenue
Gross profit
Income/(loss) from operations
Net income/(loss)
Net loss attributable to equity method investments
Add: Equity dilution impact
Equity in (loss)/income of affiliates
Balance sheet data:
Current assets
Long-term assets
Current liabilities
Long-term liabilities
Non-controlling interests
2019
equity
investments
28,423
17,608
2,590
970
(440)
93
(347)
2019
equity
2020
MakeMyTrip
other equity
investments
1,883
1,377
(991)
(2,864)
(1,459)
92
(1,367)
19,704
8,670
(805)
(1,631)
(389)
67
(322)
2020
investments MakeMyTrip
41,940
45,968
31,769
10,677
342
1,682
5,121
1,100
221
24
other equity
investments
35,004
37,028
27,914
9,054
167
2021
equity
investments
20,482
9,490
430
392
(31)
127
96
2021
equity
investments
51,437
51,233
36,344
21,708
178
For the years ended December 31, 2019, 2020 and 2021, the total cash paid for equity method investments was RMB1.4 billion, RMB351 million
and RMB328 million, respectively.
Impairments
The Company performs an impairment assessment of its investments by considering factors including, but not limited to, current economic and
market conditions with the considerations of COVID-19 impacts, as well as the operating performance of the investees. For the years ended
December 31, 2019, 2020 and 2021, impairment charges in connection with the available-for-sale debt investment of RMB150 million , nil and nil were
recorded. Impairment charges in connection with the equity securities with readily determinable fair value of nil, RMB28 million and nil were recorded.
Impairment charges in connection with the equity securities without readily determinable fair value of RMB55 million , RMB37 million and
RMB14 million were recorded. Impairment charges in connection with the equity method investments of nil, RMB840 million and RMB82 million were
recorded. The impairment was recorded in “Other income/(expense)” (Note 2).
8.
FAIR VALUE MEASUREMENT
In accordance with ASC 820-10, the Company measures financial products, time deposits, derivative instruments, available-for-sale debt
investments and equity securities with readily determinable fair value at fair value on a recurring basis. Equity securities classified within Level 1 are
valued using quoted market prices that currently available on a securities exchange registered with the Securities and Exchange Commission (SEC),
Shanghai Stock Exchange (SSE) or Hong Kong Stock Exchange (HKEX). Financial products, time deposits and derivative instruments classified within
Level 2 are valued using directly or indirectly observable inputs in the market place. The available-for-sale debt investments classified within Level 3
are valued based on a model utilizing unobservable inputs which require significant management judgment and estimation.
The equity securities without readily determinable fair value, equity method investments and certain non-financial assets are recorded at fair value
only if an impairment or observable price adjustment is recognized in the current period. If an impairment or observable price adjustment is recognized
on the equity securities during the period, the Company classify these assets as Level 3 within the fair value hierarchy based on the nature of the fair
value inputs.
F-35
Table of Contents
Assets measured at fair value on a recurring basis are summarized below (in millions):
Assets
Financial products (Note 2,7)
Time deposits (Note 2,7)
Derivative:
Foreign currency forward contracts (Note 2)
Equity securities (Note 7)
Available-for-sale debt investments (Note 7)
Total Assets
Liabilities
Exchangeable senior notes (Note 17)
Derivative:
Foreign currency forward contracts (Note 2)
Interest rate swap contract (Note 2)
Total Liabilities
Assets
Financial products (Note 2,7)
Time deposits (Note 2,7)
Derivative:
Foreign currency forward contracts (Note 2)
Interest rate swap contract (Note 2)
Equity securities (Note 7)
Available-for-sale debt investments (Note 7)
Total Assets
Liabilities
Exchangeable senior notes (Note 17)
Derivative:
Foreign currency forward contracts (Note 2)
Interest rate swap contract (Note 2)
Total Liabilities
Fair Value Measurement at
December 31, 2020 Using
Level 1 Level 2 Level 3 Fair Value at December 31, 2020
RMB
RMB
RMB
RMB
US$
—
—
22,752
17,373
—
—
—
10,235
—
10,235
51
—
—
40,176
—
—
2,856
2,856
22,752
17,373
51
10,235
2,856
53,267
—
4,249
—
4,249
—
—
—
46
11
4,306
—
—
—
46
11
4,306
3,487
2,663
8
1,569
438
8,165
651
7
2
660
Fair Value Measurement at
December 31, 2021 Using
Level 1 Level 2 Level 3 Fair Value at December 31, 2021
RMB
RMB
RMB
RMB
US$
—
—
22,857
19,807
—
—
—
—
8,571
—
8,571
11
3
—
—
42,678
—
—
—
3,354
3,354
22,857
19,807
11
3
8,571
3,354
54,603
—
3,791
—
3,791
—
—
—
38
1
3,830
—
—
—
38
1
3,830
3,587
3,108
2
0
1,345
526
8,568
595
6
0
601
The roll forward of major Level 3 investments are as follows (RMB in millions):
Fair value of Level 3 investments as at December 31, 2019
Transfer into Level 3
New addition
Disposal of investments
Effect of exchange rate change
The change in fair value of the investments
Fair value of Level 3 investments as at December 31, 2020
Transfer out of Level 3
New addition
Disposal of investments
Effect of exchange rate change
The change in fair value of the investments
Fair value of Level 3 investments as at December 31, 2021
Total
2,548
563
54
(25)
(131)
(153)
2,856
(35)
704
(66)
(44)
(61)
3,354
Management determined the fair value of these Level 3 investments based on income approach using various unobservable inputs. The determination of the fair
value required significant judgement by management with respect to the assumptions and estimates for the revenue growth rate, weighted average cost of
capital, lack of marketability discounts, expected volatility and probability in equity allocation. The significant unobservable inputs adopted in the valuation as
of December 31, 2021 are as follows:
F-36
Table of Contents
Unobservable Input
Revenue growth rate
Weighted average cost of capital
Lack of marketability discount
Expected volatility
Probability
9.
GOODWILL
-5%-105%
14%-17.5%
15%~20%
37%~57%
Liquidation scenario: 30%~70%
Redemption scenario: 30%
IPO scenario: 0%~40%
Goodwill, which is not tax deductible, represents the synergy effects of the business combinations. The changes in the carrying amount of
goodwill for the years ended December 31, 2020 and 2021 were as follows (RMB in millions):
Balance at beginning of year
Acquisition
Disposals and immaterial others
Balance at end of year
2020
2021
58,308 59,353
1,138 —
(93) —
59,353 59,353
Goodwill resulting from the business combinations has been allocated to the single reporting unit of the Company. For the years ended
December 31, 2019, 2020 and 2021, the Company performed a qualitative assessment by evaluating relevant events and circumstances that would affect
the Company’s single reporting unit and did not note any indicator that it is more likely than not that the fair value of the Company’s reporting unit is
less than its carrying amount, and therefore the Company’s goodwill was not impaired. As of December 31, 2021, there had not been any accumulated
goodwill impairment provided.
10.
INTANGIBLE ASSETS
Intangible assets were as follows (RMB in millions):
Intangible assets to be amortized
Business Relationship (Representing the relationship with the travel service
providers and other business partners)
Technology
Others
Intangible assets not subject to amortization
Trade mark
Others
Less: accumulated amortization
Intangible assets to be amortized
Business Relationship
Technology
Others
Net book value
Intangible assets to be amortized
Business Relationship
Technology
Others
Intangible assets not subject to amortization
Trade mark
Others
2020
2021
1,872 1,872
610
610
799
799
11,776 11,764
158
159
15,215 15,204
(1,176) (1,342)
(588)
(314)
(1,959) (2,244)
(541)
(242)
696
69
557
530
22
485
11,776 11,764
158
159
13,256 12,960
Indefinite-lived intangible assets are not subject to legal, regulatory, contractual, competitive, economic or other limitation on their useful lives.
The Company evaluates to determine whether events and circumstances continue to support an indefinite useful life in each reporting period.
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Table of Contents
Finite-lived intangible assets are tested for impairment if impairment indicators arise. The Company amortizes its finite-lived intangible assets
over their estimated economic useful lives using the straight-line method:
Business Relationship
Technology
Others
5-10 years
5-10 years
3-15 years
Amortization expense for the years ended December 31, 2019, 2020 and 2021 was approximately RMB437 million, RMB424 million and
RMB295 million respectively.
The annual estimated amortization expense for intangible assets subject to amortization for the five succeeding years is as follows (RMB in
millions):
2022
2023
2024
2025
2026
Amortization
240
186
181
155
51
813
11. LEASES
The Company has operating leases primarily for office and operation space. The Company’s operating lease arrangements have remaining lease
terms of one to eight years.
Operating lease costs were RMB416 million and RMB439 million for the years ended December 31, 2020 and 2021, respectively.
Supplemental cash flow information related to leases were as follows (RMB in millions):
Cash paid for amounts included in the measurement of lease liabilities
Right-of-use assets obtained in exchange for operating lease liabilities
2020 2021
415 507
589 455
As of December 31, 2020 and 2021, supplemental consolidated balance sheet information related to leases were as follows (RMB in millions):
Right-of-use assets
Current lease liabilities included within Other payables and accruals
Long-term lease liabilities
Total lease liabilities
Weighted average remaining lease term
Weighted average discount rate
Maturities of lease liabilities are as follows (RMB in millions):
2022
2023
2024
2025
2026
Thereafter
Total operating lease payments
Less: imputed interest
Total
F-38
2020
987
409
618
1,027
3 years
2021
777
363
400
763
2 years
4.3%
5.4%
As of December 31,2021
417
271
90
23
17
18
836
(73)
763
Table of Contents
As of December 31, 2020 and 2021, the operating lease arrangements of the Company, primarily for offices premises, that have not yet
commenced is immaterial. For the years ended December 31, 2020 and 2021, the variable lease costs, short-term lease costs and sub-lease income are
immaterial.
12.
SHORT-TERM DEBT AND CURRENT PORTION OF LONG-TERM DEBT
Short-term bank borrowings and current portion of long-term loan (Note 17)
Securitization debt
2025 Booking and Hillhouse Notes (Note 17)
2022 Notes (Note 17)
2022 Booking Note (Note 17)
Total
2020
2021
RMB (in millions)
26,756 39,113
270
384
6,525 —
—
324
159
—
33,665 39,866
As of December 31, 2021, the Company obtained short-term bank borrowings of RMB39.1 billion (US$6.1 billion) in aggregate, of which
RMB5.6 billion (US$0.9 billion) were collateralized by short-term and long-term investments of RMB5.4 billion (US$0.8 billion). The weighted
average interest rate for the outstanding borrowings was approximately 2.37%.
The short-term borrowings contain covenants including, among others, limitation on liens, consolidation, merger and sale of the Company’s
assets. The Company is in compliance with all of the loan covenants as of December 31, 2020 and 2021.
As of December 31, 2021, securitization debt represents the revolving debt securities which are collateralized by the receivable related to financial
services. The revolving debt securities have the term of less than 12 months with the annual interest rate from 4.50% to 6.00%.
As of December 31, 2020, RMB6.5 billion of 2025 Booking and Hillhouse Notes are reclassified as short-term debt because the 2025 Booking
and Hillhouse Notes holders had a non-contingent option to require the Company to repurchase for cash all or any portion of their 2025 Booking and
Hillhouse Notes on December 11, 2021. In 2021, the 2025 Booking and Hillhouse Notes with principal amount of US$1.0 billion (RMB6.4 billion) were
all redeemed for cash.
As of December 31, 2021, RMB324 million of 2022 Notes are reclassified as short-term debt because the 2022 Notes holders had a
non-contingent option to require the Company to repurchase for cash all or any portion of their 2022 Notes on September 15, 2022.
As of December 31, 2021, RMB159 million of 2022 Booking Note are reclassified as short-term debt because the 2022 Booking Note holders had
a non-contingent option to require the Company to repurchase for cash all or any portion of their 2022 Booking Note on September 15, 2022.
13. RELATED PARTY TRANSACTIONS AND BALANCES
Significant related party transactions were as follows (RMB in millions):
Commissions from Tongcheng Travel (a)
Commissions from Huazhu (a)
Commissions from BTG (a)
Service fee from Shangcheng (b)
Commissions to Tongcheng Travel (c)
Loans provided to and interest income from Tujia (d)
Repayment of loan and interest from Tujia (d)
Loans provided to and interest income from Lvyue (e)
2019 2020 2021
217 151 186
72 78 100
91 49 73
— — 265
579 324 294
— 347
4
— — 302
— — 50
(a) BTG (over which the Company could exercise significant influence through share ownership), Huazhu (which has a director in common
with the Company and a director who is a family member of one of the Company’s officers) and Tongcheng Travel (formerly known as
Tongcheng-elong, and over which the Company could exercise significant influence through share ownership), have entered into agreements
with the Company, respectively, to provide hotel rooms for its end users. The transactions above represent the commissions earned from
these related parties.
(b)
In 2021, the Company provided Shangcheng, over which the Company could exercise significant influence through share ownership, the
access to the platform of the Company for Shangcheng to provide financial services to the Company’s users. In exchange, the Company
receives technology service fees from Shangcheng. In 2021, the total technology service fees from Shangcheng amounted to RMB265
million.
(c)
The Company entered into agreements with Tongcheng Travel, upon which Tongcheng Travel promotes the Company’s hotel rooms on its
platform.
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(d)
(e)
In 2020, the Company provided loans of RMB340 million to Tujia (over which the Company could exercise significant influence through
share ownership). The loans bore interests of RMB7 million with repayment terms of 15~18 months. In 2021, Tujia repaid RMB302 million
of loan and interest to the Company.
In 2021, the Company provided loans of RMB50 million to Lvyue (over which the Company could exercise significant influence through
share ownership), with repayment terms of 6 months.
Significant balances with related parties were as follows (RMB in millions):
Due from related parties, current:
Trade related
Due from Tongcheng Travel
Due from others
Non-trade related
Due from Lvyue
Due from Tujia
Due from related parties, non-current:
Non-trade related
Due from others
Due to related parties, current:
Trade related
Due to Tongcheng Travel
Due to others
2020
2021
1,084
371
1,146
420
—
347
1,802
50
49
1,665
25
25
25
25
127
114
241
61
77
138
14. EMPLOYEE BENEFITS
The Company’s employee benefit primarily related to the full-time employees of the PRC subsidiaries and the VIEs, including medical care,
welfare subsidies, housing fund, unemployment insurance and pension benefits. The PRC subsidiaries and VIEs are required to accrue for these benefits
based on certain percentages of the employees’ salaries in accordance with the relevant PRC regulations and make contributions to the state-sponsored
pension and medical plans out of the amounts accrued for medical and pension benefits. The PRC government is responsible for the medical benefits
and ultimate pension liability to these employees. The total expenses recorded for such employee benefits amounted to RMB2.0 billion, RMB1.4 billion
and RMB1.8 billion for the years ended December 31, 2019, 2020 and 2021 respectively.
15. TAXATION
Cayman Islands
Under the current laws of Cayman Islands, the Company is not subject to tax on income or capital gain. In addition, upon payments of dividends
by the Company to its shareholders, no Cayman Islands withholding tax will be imposed.
Hong Kong
The Company’s subsidiaries incorporated in Hong Kong are subject to Hong Kong Profits Tax on the taxable income as reported in their
respective statutory financial statements adjusted in accordance with relevant Hong Kong tax laws. The applicable tax rate is 16.5% in Hong Kong.
The PRC
The Company’s subsidiaries and VIEs registered in the PRC are subject to PRC Enterprise Income Tax (“EIT”) on the taxable income as reported
in their respective statutory financial statements adjusted in accordance with relevant PRC income tax laws.
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The PRC EIT laws apply a general enterprise income tax rate of 25% to both foreign-invested enterprises and domestic enterprises. Preferential
tax treatments are granted to enterprises, which conduct business in certain encouraged sectors and to enterprises otherwise classified as a High and New
Technology Enterprise (“HNTE”). In 2020, Ctrip Computer Technology, Ctrip Travel Information, and Ctrip Travel Network reapplied for their
qualification as HNTE, which were approved by the relevant government authority. Thus, these subsidiaries are entitled to a preferential income tax rate
of 15% from 2020 to 2022 as long as they maintained their qualifications for HNTEs that are subject to verification by competent authorities and
renewals every three years. In 2021, Qunar Software and Qunar Beijing have renewed their HNTE certificates and are continued with a preferential
income tax rate of 15% from 2021 to 2023. Beijing Hujinxinrong Technology Co., Ltd is also a HNTE entitled to a preferential income tax rate of 15%
from 2019 to 2021 and is applying for renewal of its qualification. In addition, Ctrip Business Travel Information Service (Shanghai) Co., Ltd. and
Shanghai Xielv Information Technology Co., Ltd. were designated by relevant local authorities in Shanghai as HNTEs for the first time in 2021 and are
entitled to a preferential income tax rate of 15% till 2023.
In 2001, the PRC state taxation administration (“STA”) started to implement preferential tax policy in China’s western regions, and companies
located in applicable jurisdictions covered by the Western Regions Catalog are eligible to apply for a preferential income tax rate of 15% if their
businesses fall within the “encouraged” category of the policy. On April 23, 2020, the Ministry of Finance, the STA, and the PRC National Development
and Reform Commission (“NDRC”) jointly issued the Announcement on Renewing the Enterprise Income Tax Policy for Western Development, which
reduced the revenue percentage requirement of the “encouraged” businesses to no less than 60% and would be applied from 2021 to 2030. Chengdu
Ctrip, Chengdu Ctrip International, and Chengdu Information are entitled to enjoy a preferential tax rate of 15% until 2030, provided that their
“encouraged” businesses account for no less than required percentage pursuant to current policies.
Pursuant to the PRC EIT Law, all foreign invested enterprises in the PRC are subject to the withholding tax for their earnings generated after
January 1, 2008. The Company expects to indefinitely reinvest undistributed earnings generated after January 1, 2008 in the onshore PRC entities. As a
result, no deferred tax liability was provided on the outside basis difference from undistributed earnings after January 1, 2008.
Income/(loss) from domestic and foreign components before income tax expenses and equity in (loss)/income of affiliates (RMB in millions):
Domestic
Foreign
Total
2020
2019
2021
8,983 4,230 2,615
104 (5,455) (3,086)
(471)
9,087 (1,225)
The income/(loss) from foreign components mainly includes the gain/(loss) from the equity securities investments and measured at fair value,
impairments for investments, share-based compensation charges, foreign exchange gain/(loss) and interest income/(loss) incurred in its overseas
companies.
The income tax expenses from domestic components for the years ended December 31, 2019, 2020 and 2021 was RMB1,652 million,
RMB528 million and RMB373 million, respectively. The income tax expenses/(benefit) from foreign components for the years ended December 31,
2019 and 2020 and 2021 was RMB90 million, RMB(173) million and RMB(103) million, respectively.
Composition of income tax expense
The current and deferred portion of income tax expense were as follows (RMB in millions):
Current income tax expense
Deferred tax benefit
Income tax expense
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2019
2021
2020
1,918 848 607
(176) (493) (337)
1,742 355 270
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Reconciliation of the differences between statutory tax rate and the effective tax rate
The reconciliation between 25% which is the PRC statutory tax rate and the Company’s effective tax rate were as follows:
Statutory tax rate
Non-deductible expenses and non-taxable income incurred
— Share-based compensation expenses
— Change in fair value of equity securities investments and exchangeable senior notes
— Gain on deconsolidation of a subsidiary
— Others
R&D expense super deduction
Effect of tax holiday
Difference in tax rates of subsidiaries outside PRC
Decrease/(increase) in valuation allowance
Effective EIT rate
2019
25%
2020
25%
2021
25%
5%
(5%)
—
1%
—
(8%)
(1%)
2%
19%
(38%)
0%
15%
3%
—
27%
(37%)
(24%)
(29%)
(89%)
(21%)
—
1%
65%
75%
(37%)
(76%)
(57%)
The change in the Company’s effective tax rates from year over year is primarily attributable to the tax differential from certain subsidiaries with
preferential tax rates, the non-deductible expenses and tax effects from investing activities.
The provisions for income taxes for the years ended December 31, 2019, 2020 and 2021 differ from the amounts computed by applying the EIT
primarily due to tax holiday enjoyed by certain subsidiaries and VIEs of the Company. The following table sets forth the effect of tax holiday on China
operations:
Tax holiday effect
Basic net income per ADS effect
Diluted net income per ADS effect
2019
2021
2020
RMB (in millions, except per share data)
762
1.34
1.19
370
0.62
0.62
359
0.57
0.57
The impacts on effective tax rates from the Company’s subsidiaries with different tax rates of subsidiaries outside PRC and tax holiday are as
follows:
Ctrip Computer Technology
Ctrip Travel Information
Ctrip Travel Network
Chengdu Information
Beijing Hujinxinrong Technology Co., Ltd
The Company and its subsidiaries in Hong Kong, Singapore, UK and Cayman Islands
Qunar and subsidiaries
Others
Total
15%
15%
15%
15%
15%
0%-19%
15%
various
2019
(2.4%)
(1.0%)
(1.9%)
(0.8%)
0.0%
(1.4%)
(1.5%)
0.0%
(9.0%)
2020
15.4%
(0.7%)
14.1%
6.8%
(2.0%)
(44.6%)
(2.5%)
3.5%
(10.0%)
2021
31.9%
(4.1%)
16.0%
7.3%
14.3%
(38.8%)
6.6%
4.8%
38.0%
Significant components of deferred tax assets and liabilities were as follows (RMB in millions):
Deferred tax assets
Accrued expenses
Loss carry forwards
Accrued liability for rewards programs
Accrued staff salary
Others
Less: Valuation allowance of deferred tax assets
Deferred tax liabilities:
Recognition of intangible assets arise from business combinations and unrealized
holding gain
Net deferred tax liabilities
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2020
2021
708
731
862 1,393
40
85
98
8
314
321
(892)
(589)
1,395 1,684
(3,574) (3,527)
(2,179) (1,843)
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Movement of valuation allowances were as follows (RMB in millions):
Balance at beginning of year
Changes in current year
Balance at end of year
2019 2020 2021
238 482 589
244 107 303
482 589 892
As of December 31, 2020and 2021, valuation allowance of RMB589 million and RMB892 million was mainly provided for operating loss that
could be carried forward related to certain subsidiaries based on then assessment where it is more likely than not that such deferred tax assets will not be
realized. If events were to occur in the future that would allow the Company to realize more of its deferred tax assets than the presently recorded net
amount, an adjustment would be made to the deferred tax assets that would increase income for the period when those events occurred.
As of December 31, 2021, the Company had net operating tax loss carry forwards amounted to RMB6.9 billion.
As of December 31, 2020 and 2021, the unrecognized tax benefit and accrual is nil.
Tax years subject to examination by major jurisdictions
In general, the PRC tax authorities have up to five years to review a company’s tax filings. Accordingly, tax filings of the Company’s PRC
subsidiaries and VIEs for tax years 2017 through 2021 remain subject to the review by the relevant PRC tax authorities.
16. OTHER PAYABLES AND ACCRUALS
Components of other payables and accruals were as follows (RMB in millions):
Accrued operating expenses
Deposits received from travel suppliers and packaged tours users
Current lease liabilities
Payable related to acquisition and investments
Accruals for property and equipment
Others
Total
17. LONG-TERM DEBT
2025 Notes
2022 Notes
2022 Booking Notes
Exchangeable Senior Notes
Long-term loan
Securitization debt
Total
2020
4,527
945
409
346
126
770
7,123
2021
4,922
986
363
377
94
559
7,301
2020
2021
RMB (in millions)
31
30
331 —
163 —
4,249 3,791
17,797 6,644
628
147
22,718 11,093
As of December 31, 2021, the fair value of the Company’s long-term debt, based on Level 2 inputs, was RMB11.1 billion.
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Description of 2025 Convertible Senior Notes
On June 18, 2015, the Company issued US$400 million of 1.99% Convertible Senior Notes due 2025 (the “2025 Notes”). The 2025 Notes may be
converted, at an initial conversion rate of 9.3555 ADSs per US$1,000 principal amount of the 2025 Notes (which represents an initial conversion price
of US$106.89 per ADS), at each holder’s option at any time prior to the close of business on the second business day immediately preceding the
maturity date of July 1, 2025. Debt issuance costs were US$6.8 million and are being amortized to interest expense to the put date of the 2025 Notes
(July 1, 2020).
Each holder of the 2025 Notes has a right at such holder’s option to require the Company to repurchase for cash all or any portion of such holder’s
2025 Notes on July 1, 2020. As a result, the 2025 Notes were reclassified from long-term to short-term as of December 31, 2019. In addition, if a
fundamental change occurs, each holder has a right at such holder’s option to require the Company to repurchase for cash all or any portion of such
holder’s 2025 Notes on the date notified in writing by the Company in accordance with the indenture for the 2025 Notes. The Company believes that the
likelihood of occurrence of the fundamental change is remote. The 2025 Notes are generally not redeemable prior to the maturity date of July 1, 2025,
except that the Company may, at its option, redeem all but not part of the 2025 Notes if the Company has or will become obligated to pay holders
additional amount due to certain changes in tax law of the relevant jurisdiction. As of December 31, 2021, there has been no such change in tax laws
occurred.
In 2020, the Company notified holders of the 2025 Notes of their rights under the relating indenture to require the Company to purchase all of or
portion of such notes on July 1, 2020, which we refer to as the Put Right. As a result of exercise of aforementioned early redemption right, the Company
redeemed US$395 million (RMB2.8 billion) aggregate principal amount of the 2025 Notes as requested by the holders. As of December 31, 2021, the
balance of 2025 Notes was RMB30 million.
Description of 2022 Convertible Senior Notes
On September 12, 2016 and September 19, 2016, the Company issued US$975 million of 1.25% Convertible Senior Notes due 2022 (the “2022
Notes”). The 2022 Notes may be converted, at an initial conversion rate of 15.2688 ADSs per US$1,000 principal amount of the 2022 Notes which
represents an initial conversion price of US$65.49 per ADS at each holder’s option at any time prior to the close of business on the business day
immediately preceding the maturity date of September 15, 2022. Debt issuance costs were US$19 million and are being amortized to interest expense to
the put date of the 2022 Notes (September 15, 2019).
Each holder of the 2022 Notes has a right at such holder’s option to require the Company to repurchase for cash all or any portion of such holder’s
2022 Notes on September 15, 2019. As a result, the 2022 Notes were reclassified from long-term to short-term as of December 31, 2018. In addition, if a
fundamental change occurs, each holder has a right at such holder’s option to require the Company to repurchase for cash all or any portion of such
holder’s 2022 Notes on the date notified in writing by the Company in accordance with the indenture for the 2022 Notes. The Company believes that the
likelihood of occurrence of events considered a fundamental change is remote. The 2022 Notes are generally not redeemable prior to the maturity date
of September 15, 2022, except that the Company may, at its option, redeem all but not part of the 2022 Notes in accordance with the indenture for the
2022 Notes if the Company has or will become obligated to pay holders additional amount due to certain changes in tax law of the relevant jurisdiction.
As of December 31, 2021, there has been no such change in tax laws occurred.
In August 2019, the Company notified holders of the 2022 Notes of their rights under the relating indenture to require the Company to purchase
all of or portion of such notes on September 15, 2019, which we refer to as the Put Right. In September 2019, as a result of exercise of aforementioned
early redemption right, the Company redeemed US$924 million (RMB6.6 billion) aggregate principal amount of the 2022 Notes as requested by the
holders. The remaining 2022 Notes were reclassified as long-term debt as of December 31, 2019 and 2020 as it may not be redeemed or mature within
one year. As of December 31, 2021, the remaining RMB324 million of 2022 Notes are reclassified as short-term debt because the holders had a
non-contingent option to require the Company to repurchase for cash all or any portion of their 2022 Notes on September 15, 2022.
The Company assessed the 2020 Notes, 2025 Notes and 2022 Notes (collectively as “Notes”), the 2015 Purchased Call Option (the “Purchased
Call Options”) and the 2015 Sold Warrants (the “Sold Warrants”) under ASC 815 and concluded that:
•
The Notes, the Purchased Call Options and the Sold Warrants (1) do not entail the same risks; and (2) have a valid business purpose and economic
need for structuring the transactions separately. Therefore, the offering of the Notes, the Purchased Call Options and Sold Warrants transactions
should be accounted separately;
•
The repurchase option is considered clearly and closely related to its debt host and does not meet the requirement for bifurcation;
•
Since the conversion option is considered indexed to the Company’s own stock, bifurcation of conversion option from the Notes is not required as
the scope exception prescribed in ASC 815-10-15-74 is met;
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•
There was no BCF attributable to the Notes as the set conversion prices for the Notes were greater than the respective fair values of the ordinary
share price at date of issuances;
Therefore, the Company has accounted for the respective Notes as a single instrument as a long-term debt. The debt issuance cost was recorded as
reduction to the long-term debts and are amortized as interest expense using the effective interest method. The value of the Notes are measured by the
cash received. The Purchased Call Options and Sold Warrants are accounted for within stockholders’ equity.
Description of Booking and Hillhouse Notes
On August 7, 2014, the Company issued Convertible Senior Note (the “2019 Booking Note”) at an aggregate principal amount of US$500 million
to an indirect subsidiary of the Booking Company. The Booking 2019 Note was due on August 7, 2019 and bears interest of 1% per annum, which will
be paid semi-annually beginning on February 7, 2015. The Booking 2019 Note was convertible into the Company’s ADSs with an initial conversion
price of approximately US$81.36 per ADS. In 2019, the 2019 Booking Notes with principal amount of US$500 million (RMB3.4 billion) were all
redeemed for cash.
On May 26, 2015, the Company issued Convertible Senior Note (the “2020 Booking Note”) at an aggregate principal amount of US$250 million
to an indirect subsidiary of the Booking Company. The Booking 2020 Note was due on May 29, 2020 and bears interest of 1% per annum, which was
paid semi-annually beginning on November 29, 2016. The Booking 2020 Note will be convertible into the Company’s ADSs with an initial conversion
price of approximately US$104.27 per ADS. In 2020, the 2020 Booking Notes with principal amount of US$250 million (RMB1.8 billion) were
redeemed for cash.
On December 10, 2015, the Company issued Convertible Senior Notes at an aggregate principal amount of US$1.0 billion to an indirect
subsidiary of the Booking Company and two affiliates of Hillhouse (the “2025 Booking and Hillhouse Notes”). The 2025 Booking and Hillhouse Notes
are due on December 11, 2025 and bear interest of 2% per annum, which would be paid semi-annually beginning on June 11, 2016. The 2025 Booking
and Hillhouse Notes will be convertible into the Company’s ADSs with an initial conversion price of approximately US$68.46 per ADS.
Absent a fundamental change (as defined in the indenture for the 2025 Booking and Hillhouse Notes), each holder of the 2025 Booking and
Hillhouse Notes has a right at such holder’s option to require the Company to repurchase for cash all or any portion of such holder’s 2025 Booking and
Hillhouse Notes beginning on December 11, 2021, as a result the 2025 Booking and Hillhouse Notes were reclassified from long-term to short-term as
of December 31, 2020. In 2021, the 2025 Booking and Hillhouse Notes with principal amount of US$1.0 billion (RMB6.4 billion) were all redeemed for
cash.
On September 12, 2016, the Company issued US$25 million Convertible Senior Note to an indirect subsidiary of the Booking Company (the
“2022 Booking Note”). The 2022 Booking Note is due on September 15, 2022 and bears interest of 1.25% per annum, which will be paid semi-annually
beginning on March 15, 2017. The 2022 Booking Note will be convertible into the Company’s ADSs with an initial conversion price of approximately
US$65.49 per ADS. As of December 31, 2021, RMB159 million of 2022 Booking Note are reclassified as short-term debt because the holders had a
non-contingent option to require the Company to repurchase for cash all or any portion of their 2022 Booking Note on September 15, 2022.
The Company has accounted for the above notes as a single instrument. The value of the above notes is measured by the cash received. The
Company recorded the interest expense according to its annual interest rate. There was no BCF attributable to the above notes as the set conversion price
for the above notes was greater than the fair value of the ADS price at date of issuance.
Description of Exchangeable Senior Notes
On July 13, 2020, the Company issued exchangeable senior notes due 2027 (the “Exchangeable Senior Notes”) at an aggregate principal amount
of US$500 million. The Exchangeable Senior Notes are due on July 1, 2027 and bears interest of 1.5% per annum, which will be paid semi-annually
beginning on January 1, 2021. The Exchangeable Senior Notes may be converted, at an initial conversion rate of 24.78 Huazhu ADSs per US$1,000
principal amount of the Notes (which represents an initial conversion price of US$40.36 per Huazhu ADS) at each holder’s option. Since the exchange
option is not indexed to the Company’s own stock, the scope exception prescribed in ASC 815-10-15-74 is not met and exchange option is subject to the
derivative accounting. Therefore, the Company elects to account for and measures the Exchangeable Senior Notes in its entirety at fair value. As of
December 31, 2020 and 2021, the fair value of the Exchangeable Senior Notes amounted to RMB4.2 billion (US$651 million) and RMB3.8 billion
(US$595 million), respectively. For the year ended December 31, 2020 and 2021, the change in fair value (loss)/gain were RMB(1.0) billion (US$(151)
million) and RMB363 million (US$56 million), respectively, which was recorded in “Other income/ (expense)”.
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Long-term Loans from Commercial Banks
As of December 31, 2021, the Company obtained long-term bank borrowings of RMB16.9 billion (US$2.7 billion) in aggregate, of which the
current portion of RMB10.3 billion was classified as short-term debt (Note 12) and the remaining RMB6.6 billion was reported as long-term debt.
RMB14 million (US$2 million) of the above long-term bank borrowings were collateralized by properties of the Company. The weighted average
interest rate for the outstanding borrowings was approximately 1.27%. The Company was in compliance with the applicable financial covenants under
those lines of credit as of December 31, 2021.
Securitization Debt
As of December 31, 2021, securitization debt represents the revolving debt securities which are collateralized by the receivable related to financial
services. The revolving debt securities have the terms ranged from 3 years to 4 years with the annual interest rate from 3.90% to 6.00%.
18. REDEEMABLE NON-CONTROLLING INTERESTS
One of the Company’s subsidiaries issued redeemable preferred shares amounting to RMB1.1 billion to certain third party investors in 2019. The
preferred shares are redeemable at holder’s option if the subsidiary fails to complete a qualified IPO in a pre-agreed period of time since its issuance
with a redemption price measured by 10% interest per year. The preferred shares are therefore accounted for as redeemable non-controlling interests in
mezzanine equity and are accreted to the redemption value over the period starting from the issuance date. In 2020, the Company lost the control in the
subsidiary and the financial position and results of operations of the subsidiary was deconsolidated. A gain of RMB1.1 billion (approximately US$161
million) was recognized in the Other income/(expense) (Note 2) in connection with the deconsolidation.
For the years ended December 31, 2019, 2020 and 2021, the Company recognized accretion of RMB44 million, RMB40 million and nil to the
respective redemption value of the preferred shares over the period starting from issuance date with a corresponding reduction to the retained earnings.
19.
SHARE CAPITAL
On April 19, 2021, the Company completed its global offering and the Company’s shares have been listed on the Main Board of The Stock
Exchange of Hong Kong Limited (“HKEX”). The Company issued 36,380,900 ordinary shares, including the exercise of the over-allotment option, at
Hong Kong Dollar (“HK$”) 268 per share. Net proceeds from the global offering after deducting underwriting commissions, share issuance costs and
offering expenses approximately amounted to RMB8.0 billion.
20. EARNINGS/(LOSSES) PER SHARE
Following the Share Subdivision as detailed in Note 2, each ordinary share was subdivided into eight ordinary shares and each ADS represents
one ordinary share. The weighted average number of ordinary shares used for the calculation of basic and diluted earnings per share/ADS for the years
ended December 2019 and 2020 have been retrospectively adjusted.
Basic earnings/(losses) per share and diluted earnings/(losses) per share were calculated as follows (RMB in millions, except for share and per
share data):
Numerator:
Net income/(loss) attributable to Trip’s shareholders
Eliminate the dilutive effect of interest expense of convertible notes
Numerator for diluted earnings per share
Denominator:
Denominator for basic earnings per ordinary share - weighted average
ordinary shares outstanding (Note i)
Dilutive effect of share options (Note i)
Dilutive effect of convertible notes (Note i)
Denominator for diluted earnings per ordinary share (Note i)
Basic earnings/(losses) per ordinary share (Note i)
Diluted earnings/(losses) per ordinary share (Note i)
Basic earnings/(losses) per ADS
Diluted earnings/(losses) per ADS
2019
2020
2021
7,011
373
7,384
(3,247)
—
(3,247)
(550)
—
(550)
567,871,968 600,888,208 634,109,233
—
15,815,672
58,264,472
—
641,952,112 600,888,208 634,109,233
(0.87)
—
—
12.35
(5.40)
11.50
12.35
11.50
(5.40)
(5.40)
(5.40)
(0.87)
(0.87)
(0.87)
Note i: Basic and diluted earnings/(losses) per ordinary share, weighted average ordinary shares outstanding. dilutive earnings per ordinary share, the
dilutive effect of share options and convertible notes have been retrospectively adjusted for the Share Subdivision and the Ratio Change that were
effective on March 18, 2021 as detailed in Note 2.
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All the convertible senior notes had anti-dilutive impact and were excluded in the computation of diluted EPS in 2020 and 2021. All the
convertible senior notes were included in the computation of diluted EPS in 2019.
For the years ended December 31, 2019, 2020 and 2021, the Company had securities which could potentially dilute basic earnings per share in the
future, which were excluded from the computation of diluted earnings/(losses) per share as their effects would have been anti-dilutive. Such weighted
average numbers of ordinary shares outstanding are as following:
Convertible Notes
Outstanding weighted average stock options
21. COMMITMENTS AND CONTINGENCIES
Capital commitments
2019
2020
2021
— 27,896,136 1,245,966
15,815,672 12,433,456 6,756,940
15,815,672 40,329,592 8,002,906
As of December 31, 2021, the Company had outstanding capital commitments totaling RMB11 million, which consisted of capital expenditures of
property, equipment and software.
Deposit under guarantee arrangement
In connection with its air ticketing business, the Company is required by an affiliate of Civil Aviation Administration of China (“CAAC”) and
International Air Transport Association (“IATA”) to enter into guarantee arrangements and to pay deposits. The unused deposits are repaid at the end of
the guaranteed period on an annual basis. As of December 31, 2021, the total quota of the air tickets that the Company was entitled to issue was up to
RMB1.1 billion. The total amount of the deposit the Company paid was RMB147 million.
Based on the guarantee arrangements and historical experience, the maximum amount of the future payments of Company is approximately
RMB943 million which is the guaranteed amount of the air ticket that the Company could issue rather than a financial guarantee. The Company will be
liable to pay only when it issues the air tickets to its users and such payable is included in the accounts payable. Therefore, the Company believes the
guarantee arrangements do not constitute any contractual and constructive obligation of the Company and has not recorded any liability beyond the
amount of the tickets that have already been issued.
Contingencies
The Company is not currently a party to any pending material litigation or other legal proceeding or claims.
The Company is incorporated in the Cayman Islands and is considered as a foreign entity under PRC laws. Due to the restrictions on foreign
ownership of the air-ticketing, travel agency, advertising and internet content provision businesses, the Company conducts these businesses partly
through various VIEs. These VIEs hold the licenses and approvals that are essential for the Company’s business operations. In the opinion of the
Company’s PRC legal counsel, the current ownership structures and the contractual arrangements with these VIEs and their shareholders as well as the
operations of these VIEs are in compliance with all existing PRC laws, rules and regulations. However, there may be changes and other developments in
PRC laws and regulations. Accordingly, the Company cannot be assured that PRC government authorities will not take a view in the future contrary to
the opinion of the Company’s PRC legal counsel. If the current ownership structures of the Company and its contractual arrangements with VIEs were
found to be in violation of any existing or future PRC laws or regulations, the Company may be required to restructure its ownership structure and
operations in China to comply with changing and new PRC laws and regulations.
F-47
Table of Contents
22. GEOGRAPHIC INFORMATION
The following table presents revenue by geographic area, the Greater China and all other countries, based on the geographic location of its
websites for the year ended December 31, 2019, 2020 and 2021. No revenue result from an individual country other than the Greater China accounted
for more than 10% of revenue for the presented years.
Total Revenue
The Greater China
Others
23.
SUBSEQUENT EVENTS
2019
2020
2021
RMB (in millions)
31,256 17,019 18,423
4,460 1,308 1,606
35,716 18,327 20,029
No subsequent event which had a material impact on the Company was identified through the date of issuance of the financial statements.
F-48
Exhibit 2.2
Ordinary Shares
xxxxxxxxx
Trip.com Group Limited—Ordinary Shares
(Incorporated under the laws of the Cayman Islands)
Certificate No.
xxx
US $1,750,000 Share Capital divided into
1,400,000,000 Ordinary Shares of US$0.00125 par value each
THIS IS TO CERTIFY THAT
xxxxxxxxxxxxxxx
is the registered holder of
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
Ordinary Shares in the above-named Company subject to the Memorandum and articles of association thereof.
EXECUTED for and on behalf of the said Company on xxxxxxxxxxx
Director
Exhibit 2.12
Description of Rights of Securities
Registered under Section 12 of the Securities Exchange Act of 1934 (the “Exchange Act”)
As of December 31, 2021, Trip.com Group Limited (or “we,” “our,” “our company,” “us,” or the “Company”) had the following securities
registered pursuant to Section 12(b) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”).
Title of each class
American depositary shares (each representing one ordinary share,
par value US$0.00125 per share)
Ordinary shares, par value US$0.00125 per share
Description of Ordinary Shares
Trading
symbol
TCOM
9961
Name of each exchange on which registered
Nasdaq Stock Market LLC
(Nasdaq Global Select Market)
The Stock Exchange of Hong Kong Limited
The following is a summary of material provisions of our currently effective third amended and restated memorandum and articles of association
(the “Memorandum and Articles of Association”), as well as the Companies Act (As Revised) of the Cayman Islands (the “Companies Act”) insofar as
they relate to the material terms of our ordinary shares. Notwithstanding this, because it is a summary, it may not contain all the information that you
may otherwise deem important. For more complete information, you should read the entire Memorandum and Articles of Association, which has been
filed with the SEC as Exhibit 3.1 to our Report of Foreign Private Issuer on Form 6-K furnished to the Securities and Exchange Commission on
December 21, 2021.
Type and Class of Securities (Item 9.A.5 of Form 20-F)
Each ordinary share has a par value of US$0.00125. The number of issued and outstanding ordinary shares as of the last day of our company’s
respective fiscal year is provided on the cover of the annual report on Form 20-F (the “Form 20-F”) of our company. Our ordinary shares may be held in
either certificated or uncertificated form. We will not issue our ordinary shares in bearer form.
Preemptive Rights (Item 9.A.3 of Form 20-F)
Our shareholders do not have preemptive rights.
Limitations or Qualifications (Item 9.A.6 of Form 20-F)
Not applicable.
Rights of Other Types of Securities (Item 9.A.7 of Form 20-F)
Not applicable.
Rights of Ordinary Shares (Item 10.B.3 of Form 20-F)
Ordinary Shares
General. All of our issued and outstanding ordinary shares are fully paid and non-assessable. Our ordinary shares are issued in registered form,
and are issued when entered in our register of members. Our shareholders who are non-residents 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. Our Memorandum and
Articles of Association provide that dividends may be declared and paid out of our profits, realized or unrealized, or from any reserve set aside from
profits which our board of directors determine is no longer needed. Under the laws of the Cayman Islands, our company may pay a dividend out of
either profit or share premium account, provided that in no circumstances may a dividend be paid if this would result in our company being unable to
pay its debts as they fall due in the ordinary course of business.
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 before or on the declaration of the result of, the show of hands, a poll is demanded. A poll may be demanded
by the chairman of the meeting or any shareholder or shareholders collectively present in person or by proxy and holding at least ten percent in par value
of the shares giving a right to attend and vote at the meeting.
A quorum required for a meeting of shareholders consists of at least two shareholders (or, if our company has only one shareholder, that one
shareholder) holding (i) not less than ten per cent of the votes attaching to all issued and outstanding shares, for as long as our shares remain listed on
The Stock Exchange of Hong Kong Limited, or (ii) otherwise not less than one-third of the issued and outstanding voting shares in our company, present
in person or by proxy. Shareholders’ meetings may be convened by our board of directors on its own initiative or upon a requisition of shareholders
holding in aggregate not less than ten per cent in par value of our voting share capital for as long as our shares remain listed on The Stock Exchange of
Hong Kong Limited. Advance notice of (i) at least 14 days, for as long as our shares remain listed on The Stock Exchange of Hong Kong Limited, or
(ii) otherwise at least seven days’ notice is required for the convening of any of our 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 attaching to the ordinary
shares cast in a general meeting. 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 authorized but
unissued shares.
Liquidation If our company were to be wound up, the liquidator may, with the sanction of a special resolution of our company and any other
sanction required by the Companies Act, divide amongst our shareholders in kind the whole or any part of the assets of our company (whether they
consist of property of the same kind or not) and may for that purpose value any assets and determine how the division will be carried out as between the
shareholders or different classes of shareholders. The liquidator may, with the like sanction, vest the whole or any part of such assets in trustees upon
such trusts for the benefit of the shareholders as the liquidator, with the like sanction, thinks fit, but so that no shareholder should be compelled to accept
any asset upon which there is a liability.
2
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, Repurchase and Surrender of Shares. We may issue shares on the terms that such shares are subject to redemption, at our option or at
the option of the holders thereof on such terms and in such manner as may be determined, prior to the issue of such shares, by special resolution. Our
company may also repurchase any of our shares (including redeemable shares) provided that the manner of such purchase has been authorized by an
ordinary resolution of our shareholders. Under the Companies Act, the redemption or repurchase of any share may be paid out of our company’s profits
or share premium account or out of the proceeds of a fresh issue of shares made for the purpose of such redemption or repurchase, or out of capital if our
company shall, immediately following such payment, be able to pay its debts as they fall due in the ordinary course of business. In addition, under the
Companies Act, no such share may be redeemed or repurchased (a) unless it is fully paid up, (b) if such redemption or repurchase would result in there
being no shares outstanding, or (c) our company has commenced liquidation. In addition, our company may accept the surrender of any fully paid share
for no consideration.
Shareholder Rights Plan
On November 23, 2007, our board of directors declared a dividend of one ordinary share purchase right (a “Right”), for each of our ordinary
shares outstanding at the close of business on December 3, 2007 pursuant to a rights agreement. 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, except the acquirer that triggers the exercise of the Rights to purchase from us one ordinary
share at a price of US$700 per ordinary share, subject to adjustment. As a result, the acquirer will be greatly diluted, and other existing shareholders who
exercise the Rights will not be diluted, thereby effectively reducing the risk of a potential hostile takeover. On August 7, 2014, we entered into a First
Amendment and, subsequently on the same day, a Second Amendment to the Rights Agreement dated as of November 23, 2007 between the Bank of
New York Mellon and us. Through these two amendments, we (i) extended the term of our rights agreement for another ten years and the Rights will
expire on August 6, 2024, subject to the right of our board of directors to extend the rights agreement for another ten years prior to its expiration;
(ii) modified the trigger threshold of the Rights to allow more flexibility. Specifically, shareholders who file or are entitled to file beneficial ownership
statement on Schedule 13G pursuant to Rule 13d-1(b)(1) of the Exchange Act, typically institutional investors with no intention to acquire control of the
issuer, will be able to beneficially own up to 20% of our total outstanding shares before the Rights are triggered, while all other shareholders must
maintain their beneficial ownership at a level below 10% of our total outstanding shares before the Rights are triggered, among other things; and
(iii) included Booking Holdings Inc. (formerly known as the Priceline Group Inc.) (“Booking”), and its subsidiaries in the definition of “Exempt Person”
under the then effective rights agreement as long as their beneficial ownership do not exceed 10% of our total outstanding shares. On May 29, 2015,
October 26, 2015, and December 23, 2015, we entered into a Third Amendment, a Fourth Amendment, and a Fifth Amendment to the Rights Agreement
with the Bank of New York Mellon, respectively, for the purposes of amending the definition of “Exempt Person.” Accordingly, in so far as Booking
and any of its subsidiaries are concerned in connection with the determination of Exempt Person, the term “Exempt Person” will be applied only to the
extent that the number of ordinary shares beneficially owned by such Exempt Person (excluding the number of our ADSs or the ordinary shares that are
beneficially owned by Booking and any of its subsidiaries due to any such entity’s ownership or conversion of that certain note issued by us pursuant to
a convertible note purchase agreement dated December 9, 2015 between a subsidiary of Booking and us) at all times does not exceed fifteen percent
(15%) of the ordinary shares then outstanding in the aggregate and in so far as Baidu and any of its subsidiaries are concerned in connection with the
determination of Exempt Person, the term “Exempt Person” will be applied only to the extent that the number of ordinary shares beneficially owned by
such Exempt Person at all times does not exceed twenty-seven percent (27%) of the ordinary shares then outstanding in the aggregate. On August 30,
2019 and November 13, 2019, we entered into a Sixth Amendment and a Seventh Amendment to the Rights Agreement with the Bank of New York
Mellon, respectively, for purposes of amending the definition of “Exempt Person.” Accordingly, in connection with the share exchange transaction with
Naspers, Naspers, MIH Internet SEA Private Limited, and their respective subsidiaries have been included in the definition of “Exempt Person” to the
extent that the number of ordinary shares beneficially owned by such Exempt Person at all times does not exceed eleven percent (11%) of the ordinary
shares then outstanding in the aggregate, and removed Booking and its subsidiaries from the definition of “Exempt Person.”
3
Requirements to Change the Rights of Holders of Ordinary Shares (Item 10.B.4 of Form 20-F)
Variations of Rights of Shares. If at any time the share capital of our company is divided into different classes of shares, the rights attached to any
class (unless otherwise provided by the terms of issue of the shares of that class) may, whether or not our company is being wound-up and except where
our articles of association or the Companies Act impose any stricter quorum, voting or procedural requirements in regard to the variation of rights
attached to a specific class, be varied either with the consent in writing of the holders of 75% 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.
Limitations on the Rights to Own Ordinary Shares (Item 10.B.6 of Form 20-F)
There are no limitations under the laws of the Cayman Islands or under the Memorandum and Articles of Association that limit the right
of non-resident or foreign owners to hold or vote ordinary shares, other than the provisions contained in the Memorandum and Articles of Association to
limit the ability of others to acquire control of our company or cause our company to engage in change-of-control transactions.
4
Provisions Affecting Any Change of Control (Item 10.B.7 of Form 20-F)
Anti-Takeover Provisions in the Memorandum and Articles of Association. Some provisions of our current Memorandum and Articles of
Association may discourage, delay or prevent a change in control of our company or management that shareholders may consider favorable, including
provisions that authorize our board of directors to issue preferred shares in one or more series and to designate the price, rights, preferences, privileges
and restrictions of such preferred shares without any further vote or action by our shareholders.
However, under Cayman Islands law, our directors may only exercise the rights and powers granted to them under our memorandum and articles
of association, as amended and restated from time to time, for a proper purpose and for what they believe in good faith to be in the best interests of our
company.
Ownership Threshold (Item 10.B.8 of Form 20-F)
There are no provisions under Cayman Islands law applicable to our company, or under the Memorandum and Articles of Association, that require
our company to disclose shareholder ownership above any particular ownership threshold.
Differences Between the Law of Different Jurisdictions (Item 10.B.9 of Form 20-F)
The Companies Act is derived, to a large extent, from the older Companies Acts of England but does not follow recent English statutory
enactments, and accordingly there are significant differences between the Companies Act and the current Companies Act of England. In addition, the
Companies Act differs from laws applicable to United States corporations and their shareholders. Set forth below is a summary of certain significant
differences between the provisions of the Companies Act applicable to us and the comparable provisions of the laws applicable to companies
incorporated in the United States and their shareholders.
Mergers and Similar Arrangements. The Companies Act 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, which must then be authorized by (a) a special resolution of the shareholders of each constituent company, and
(b) such other authorization, if any, as may be specified in such constituent company’s articles of association. The written plan of merger or
consolidation must be filed with the Registrar of Companies together with a declaration as to the solvency of the consolidated or surviving company, a
declaration as to 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 that notification of the merger or consolidation will be 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 set out in the Companies Act, subject to certain exceptions. The exercise
of dissenter rights will preclude the exercise by the dissenting shareholder of any other rights to which he or she might otherwise be entitled by virtue of
holding shares, save for the right to seek relief on the grounds that the merger or consolidation is void or unlawful. Court approval is not required for a
merger or consolidation which is effected in compliance with these statutory procedures.
5
A merger between a Cayman parent company and its Cayman subsidiary or subsidiaries does not require authorization by a resolution of
shareholders of that Cayman subsidiary if a copy of the plan of merger is given to every member of that Cayman subsidiary to be merged unless that
member agrees otherwise. For this purpose a company is a “parent” of a subsidiary of it holds issued shares that together represent at least ninety percent
(90%) of the votes at a general meeting of the subsidiary.
The consent of each holder of a fixed or floating security interest over a constituent company is required unless this requirement is waived by a
court in the Cayman Islands.
Separate from the statutory provisions relating to mergers and consolidations, the Companies Act also contains, there are statutory provisions that
facilitate the reconstruction and amalgamation of companies by way of schemes of arrangement, provided that the arrangement is approved by a
majority in number of each class of shareholders or 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 has the right to express to the court the view that the transaction ought not to be approved, the Grand
Court of the Cayman Islands can be expected to approve the arrangement if it determines that:
•
•
•
•
the statutory provisions as to the required majority vote have been met;
the shareholders have been fairly represented at the meeting in question and the statutory majority are acting bona fide without coercion of
the minority to promote interests adverse to those of the class;
the arrangement is such that may be reasonably approved by an intelligent and honest man of that class acting in respect of his interest; and
the arrangement is not one that would more properly be sanctioned under some other provision of the Companies Act.
The Companies Act also contains a statutory power of compulsory acquisition which may facilitate the “squeeze out” of dissentient minority
shareholder upon a tender offer. When a tender offer is made and accepted by holders of 90% of the shares affected within four months, the offeror may,
within a two-month period commencing on the expiration of such four month period, require the holders of the remaining shares to transfer such shares
to the offeror on the terms of the offer. An objection can be made to the Grand Court of the Cayman Islands but this is unlikely to succeed in the case of
an offer which has been so approved unless there is evidence of fraud, bad faith or collusion.
6
If an arrangement and reconstruction by way of scheme of arrangement is thus approved and sanctioned, or if a tender offer is made and accepted,
in accordance with the foregoing statutory procedures, a dissenting shareholder would have no rights comparable to appraisal rights, save that objectors
to a takeover offer may apply to the Grand Court of the Cayman Islands for various orders that the Grand Court of the Cayman Islands has a broad
discretion to make, which would otherwise ordinarily be available to dissenting shareholders of Delaware corporations, providing rights to receive
payment in cash for the judicially determined value of the shares.
Shareholders’ Suits. In principle, we will normally be the proper plaintiff to sue for a wrong done to us as a company, and as a general rule, a
derivative action may ordinarily not be brought by a minority shareholder. However, based on English authority, which would in all likelihood be of
persuasive authority in the Cayman Islands, the Cayman Islands courts can be expected (and have had occasion) to follow and apply the common law
principles (namely the rule in Foss v. Harbottle and the exceptions thereto) so that a minority shareholder may be permitted to commence a class action
against, or derivative actions in the name of, our company to challenge:
•
•
•
an act which is ultra vires or illegal and is therefore incapable of ratification by the shareholders,
act which constitutes a fraud against the minority where the wrongdoers are themselves in control of the company, and
an act which requires a resolution with a qualified (or special) majority (i.e. more than a simple majority) which has not been obtained.
Indemnification of Directors and Executive Officers and Limitation of Liability. Cayman Islands law does not limit the extent to which a
company’s memorandum and 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 Memorandum and Articles of Association require us to indemnify our officers and directors for losses, damages or liabilities
incurred or sustained in the execution or discharge of his duties, powers, authorities or discretions as such unless such losses, damages or liabilities arise
from dishonesty, willful neglect or default or fraud of such directors or officers. This standard of conduct is generally the same as permitted under the
Delaware General Corporation Law for a Delaware corporation.
In addition, we have entered into indemnification agreements with our directors and executive officers that provide such persons with additional
indemnification beyond that provided in our Memorandum and Articles of Association.
Insofar as indemnification for liabilities arising under the Securities Act may be permitted to our directors, officers or persons controlling us under
the foregoing provisions, we have been informed that in the opinion of the SEC, such indemnification is against public policy as expressed in the
Securities Act and is therefore unenforceable.
7
Directors’ Fiduciary Duties. Under Delaware corporate law, a director of a Delaware corporation has a fiduciary duty to the corporation and its
shareholders. This duty has two components: the duty of care and the duty of loyalty. The duty of care requires that a director act in good faith, with the
care that an ordinarily prudent person would exercise under similar circumstances. Under this duty, a director must inform himself of, and disclose to
shareholders, all material information reasonably available regarding a significant transaction. The duty of loyalty requires that a director acts in a
manner he reasonably believes to be in the best interests of the corporation. He must not use his corporate position for personal gain or advantage. This
duty prohibits self-dealing by a director and mandates that the best interest of the corporation and its shareholders take precedence over any interest
possessed by a director, officer or controlling shareholder and not shared by the shareholders generally. In general, actions of a director are presumed to
have been made on an informed basis, in good faith and in the honest belief that the action taken was in the best interests of the corporation. However,
this presumption may be rebutted by evidence of a breach of one of the fiduciary duties. Should such evidence be presented concerning a transaction by
a director, the director must prove the procedural fairness of the transaction, and that the transaction was of fair value to the corporation.
As a matter of Cayman Islands law, a director of a Cayman Islands company is in the position of a fiduciary with respect to the company and
therefore it is considered that he owes the following duties to the company—a duty to act in good faith in the best interests of the company, a duty not to
make a personal profit based on his position as director (unless the company permits him to do so), a duty not to put himself in a position where the
interests of the company conflict with his personal interest or his duty to a third party and a duty to exercise powers for the purpose for which such
powers were intended. A director of a Cayman Islands company owes to the company a duty to act with skill and care. It was previously considered that
a director need not exhibit in the performance of his duties a greater degree of skill than may reasonably be expected from a person of his knowledge
and experience. However, English and Commonwealth courts have moved towards an objective standard with regard to the required skill and care and
these authorities are likely to be followed in the Cayman Islands.
Shareholder Action by Written Consent. Under the Delaware General Corporation Law, a corporation may eliminate the right of shareholders to
act by written consent by amendment to its certificate of incorporation. Cayman Islands law and our Memorandum and Articles of Association provide
that shareholders may approve corporate matters by way of a unanimous written resolution signed by or on behalf of each shareholder who would have
been entitled to vote on such matter at a general meeting without a meeting being held.
Shareholder Proposals. Under the Delaware General Corporation Law, a shareholder has the right to put any proposal before the annual meeting
of shareholders, provided it complies with the notice provisions in the governing documents. A special meeting may be called by the board of directors
or any other person authorized to do so in the governing documents, but shareholders may be precluded from calling special meetings.
8
Cayman Islands law provides shareholders with only limited rights to requisition a general meeting, and does not provide shareholders with any
right to put any proposal before a general meeting. However, these rights may be provided in a company’s articles of association. Our Memorandum and
Articles of Association allow our shareholders holding not less than ten per cent. in par value of the capital of the Company attaching to the issued and
outstanding shares of our company entitled to vote at general meetings, for as long as our shares remain listed on The Stock Exchange of Hong Kong
Limited, to requisition a shareholder’s meeting, in which case our directors shall convene an extraordinary general meeting. Other than this right to
requisition a shareholders’ meeting, our Memorandum and Articles of Association do not provide our shareholders other right to put proposal before
annual general meetings or extraordinary general meetings not called by such shareholders. As an exempted Cayman Islands company, we are not
obliged by law to call shareholders’ annual general meetings.
Cumulative Voting. Under the Delaware General Corporation Law, cumulative voting for elections of directors is not permitted unless the
corporation’s certificate of incorporation specifically provides for it. Cumulative voting potentially facilitates the representation of minority shareholders
on a board of directors since it permits the minority shareholder to cast all the votes to which the shareholder is entitled on a single director, which
increases the shareholder’s voting power with respect to electing such director. There are no prohibitions in relation to cumulative voting under the laws
of the Cayman Islands but our Memorandum and Articles of Association do not provide for cumulative voting. As a result, our shareholders are not
afforded any less protections or rights on this issue than shareholders of a Delaware corporation.
Removal of Directors. Under the Delaware General Corporation Law, a director of a corporation with a classified board may be removed only for
cause with the approval of a majority of the outstanding shares entitled to vote, unless the certificate of incorporation provides otherwise. Under our
Memorandum and Articles of Association, directors may be removed with or without cause, by an ordinary resolution of our shareholders. A director’s
office shall be vacated if the director (i) gives notice to the Company that he resigns the office of director, (ii) if he absents himself (without being
represented by proxy or an alternate director appointed by him) from three consecutive meetings of the board of directors without special leave of
absence from the directors, and they pass a resolution that he has by reason of such absence vacated office, (iii) if he dies, becomes bankrupt or makes
any arrangement or composition with his creditors generally, or (iv) if he is found to be or becomes of unsound mind. Subject to the foregoing sentence,
each director shall hold office until the expiration of his term and until his successor shall have been elected and qualified in accordance with the
Memorandum and Articles of Association.
Transactions with Interested Shareholders. The Delaware General Corporation Law contains a business combination statute applicable to
Delaware corporations whereby, unless the corporation has specifically elected not to be governed by such statute by amendment to its certificate of
incorporation, it is prohibited from engaging in certain business combinations with an “interested shareholder” for three years following the date that
such person becomes an interested shareholder. An interested shareholder generally is a person or a group who or which owns or owned 15% or more of
the target’s outstanding voting share within the past three years. This has the effect of limiting the ability of a potential acquirer to make a two-tiered bid
for the target in which all shareholders would not be treated equally. The statute does not apply if, among other things, prior to the date on which such
shareholder becomes an interested shareholder, the board of directors approves either the business combination or the transaction which resulted in the
person becoming an interested shareholder. This encourages any potential acquirer of a Delaware corporation to negotiate the terms of any acquisition
transaction with the target’s board of directors.
9
Cayman Islands law has no comparable statute. As a result, we cannot avail ourselves of the types of protections afforded by the Delaware
business combination statute. However, although Cayman Islands law does not regulate transactions between a company and its significant shareholders,
the directors of the Company are required to comply with the fiduciary duties which they owe to the Company under Cayman Islands law, including the
duty to ensure that, in their opinion, any such transactions are bona fide in the best interests of the Company and are entered into for a proper purpose
and not with the effect of constituting a fraud on the minority shareholders.
Dissolution; Winding up. Under the Delaware General Corporation Law, unless the board of directors approves the proposal to dissolve,
dissolution must be approved by shareholders holding 100% of the total voting power of the corporation. Only if the dissolution is initiated by the board
of directors may it be approved by a simple majority of the corporation’s outstanding shares. Delaware law allows a Delaware corporation to include in
its certificate of incorporation a supermajority voting requirement in connection with dissolutions initiated by the board.
Under Cayman Islands law, a company may be wound up by either an order of the courts of the Cayman Islands or by a special resolution of its
members or, if the company is unable to pay its debts as they fall due, by an ordinary resolution of its members. The court has authority to order winding
up in a number of specified circumstances including where it is, in the opinion of the court, just and equitable to do so.
Variation of Rights of Shares. Under the Delaware General Corporation Law, a corporation may vary the rights of a class of shares with the
approval of a majority of the outstanding shares of such class, unless the certificate of incorporation provides otherwise. Under Cayman Islands law and
our Memorandum and Articles of Association, if our share capital is divided into more than one class of shares, we may vary the rights attached to any
class with the written consent of holders of 75% 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.
Amendment of Governing Documents. Under the Delaware General Corporation Law, a corporation’s governing documents may be amended with
the approval of a majority of the outstanding shares entitled to vote, unless the certificate of incorporation provides otherwise. Under the Companies
Act, our Memorandum and Articles of Association may only be amended by a special resolution of our shareholders.
Rights of Non-resident or Foreign Shareholders. There are no limitations imposed by our Memorandum and Articles of Association on the rights
of non-resident or foreign shareholders to hold or exercise voting rights on our shares.
10
Changes in Capital (Item 10.B.10 of Form 20-F)
Our shareholders may from time to time by ordinary resolution:
•
•
•
•
increase the share capital by such sum as the resolutions shall prescribe and with such rights, priorities and privileges annexed thereto, as
our company in general meeting may determine;
consolidate and divide all or any of our share capital into shares of a larger amount than our existing shares;
by subdivision of our existing shares or any of them divide the whole or any part of its share capital into shares of smaller amount that is
fixed by the Memorandum of Association or into shares without par value; or
cancel any shares that at the date of the passing of the resolution have not been taken or agreed to be taken by any person.
Our shareholders may by special resolution, subject to confirmation by the Grand Court of the Cayman Islands on an application by our company
for an order confirming such reduction, reduce our share capital or any capital redemption reserve in any manner permitted by law.
Debt Securities (Item 12.A of Form 20-F)
Not applicable.
Warrants and Rights (Item 12.B of Form 20-F)
Not applicable.
Other Securities (Item 12.C of Form 20-F)
Not applicable.
Description of American Depositary Shares (Items 12.D.1 and 12.D.2 of Form 20-F)
The Bank of New York Mellon is acting as the depositary for the ADSs. The depositary’s corporate trust office is at 240 Greenwich Street, New
York, New York 10286. Each ADS represents an ownership interest of one ordinary share (or a right to receive one ordinary share). The ADSs will also
any represent other securities, cash or other property that may be held by the depositary. The depositary appointed the Hong Kong office of The
Hongkong and Shanghai Banking Corporation Limited as the custodian to safe keep the securities on deposit.
You may hold ADSs either (A) directly (i) by having an American Depositary Receipt, also referred to as an ADR, which is a certificate
evidencing a specific number of ADSs, registered in your name, or (ii) by having uncertificated ADSs registered in your name, or (B) indirectly by
holding a security entitlement in ADSs through your broker or other financial institution that is a direct or indirect participant in The Depository Trust
Company, also called DTC. If you hold ADSs directly, you are a registered ADS holder, also referred to as an ADS holder. This description assumes you
are an ADS holder. If you hold the ADSs indirectly, you must rely on the procedures of your broker or other financial institution to assert the rights of
ADS holders described in this section. You should consult with your broker or financial institution to find out what those procedures are.
11
Registered holders of uncertificated ADSs will receive statements from the depositary confirming their holdings.
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 ADS holders with this summary of the deposit agreement. As an ADS holder, you should read this summary together with the
deposit agreement and the form of ADR. This summary does not purport to be complete and is subject to and qualified in its entirety by the registration
statement on Form F-6 in relation to our ADSs, as amended, including the exhibits thereto. For directions on how to obtain copies of those documents,
see “Item 10. Additional Information – H. Documents on Display” of the Form 20-F. We urge you to review the deposit agreement in its entirety as well
as the form of ADR attached to the deposit agreement.
Dividends and other distributions
The depositary has agreed to pay to you, as an ADS holder, 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.
•
Cash. The depositary 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 depositary 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.
Before making a distribution, any withholding taxes that must be paid will be deducted. The depositary 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 depositary cannot convert RMB,
you may lose some or all of the value of the distribution.
•
Shares. The depositary may distribute additional ADSs representing any ordinary shares we may distribute as a dividend or free
distribution. The depositary 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 depositary does not distribute additional ADSs, each ADS will
also represent the new ordinary shares.
12
•
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 depositary may make these rights available to you. We must first instruct the depositary 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 depositary decides it
is practical to sell the rights, the depositary will sell the rights and distribute the proceeds, in the same way as it does with cash. The
depositary may allow rights that are not distributed or sold to lapse. In that case, you will receive no value for them.
If the depositary 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 depositary 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 depositary 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.
•
Other distributions. The depositary 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 depositary 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.
The depositary 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.
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Deposit, withdrawal and cancellation
The depositary will deliver ADSs if you or your broker deposits ordinary shares. Upon payment of its fees and expenses and of any taxes or
charges, such as stamp taxes or stock transfer taxes or fees, The depositary 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.
As an ADS holder, you may turn in your ADSs at the depositary’s 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 depositary will deliver the underlying ordinary shares to an account designated by you or at the office
of the custodian. Or, at your request, risk and expense, the depositary will deliver the deposited securities at its corporate trust office, if feasible.
Voting rights
As an ADS holder, you may instruct the depositary to vote the ordinary shares underlying your ADSs. Otherwise, you will not be able to exercise
your right to vote unless you withdraw the ordinary shares and become registered as a shareholder of our company. However, you may not know about
the meeting enough in advance to withdraw the ordinary shares.
If we ask for your instructions, the depositary will notify you of the upcoming vote and arrange to deliver our voting materials to you. The
materials will:
•
•
describe the matters to be voted on; and
explain how you may instruct the depositary to vote the ordinary shares or other deposited securities underlying your ADSs as you direct.
For instructions to be valid, the depositary must receive them on or before the date specified. the depositary 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.
We cannot assure you that you will receive the voting materials in time to ensure that you can instruct the depositary to vote the ordinary shares
underlying your ADSs. In addition, the depositary 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 the depositary 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 depositary will give a
discretionary proxy to such person in those circumstances to vote on all questions to be voted upon unless we notify the depositary that:
•
•
•
we do not wish to receive a discretionary proxy;
there is substantial shareholder opposition to the particular question; or
the particular question would have a material and adverse impact on our shareholders.
14
Notices and reports
The depositary 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 depositary as the holder of the deposited securities, and
(b) made generally available to the holders of such deposited securities by our company. The depositary 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 depositary by our company will be furnished in English.
Fees and expenses
Persons depositing or withdrawing shares
must pay:
US$5.00 (or less) per 100 ADSs (or portion thereof)
For:
• Issuance of ADSs, including issuances resulting from a distribution of
shares or rights or other property
• Cancellation of ADSs for the purpose of withdrawal,
including if the deposit agreement terminates
US$0.02 (or less) per ADS
• Any cash distribution to ADS holders
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
• Distribution of securities distributed to holders of deposited securities
which are distributed by the depositary to ADS holders
US$0.02(or less) per ADSs per calendar year
• Depositary services
Registration or transfer fees
• 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
Expenses of the depositary
• Converting foreign currency to U.S. dollars
• Cable, telex and facsimile transmissions (when expressly
provided in the deposit agreement)
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
• As necessary
Any charges incurred by the depositary or its agents for servicing the
deposited securities
• As necessary
15
The depositary collects its fees for delivery and surrender of ADSs directly from investors depositing shares or surrendering ADSs for the purpose
of withdrawal or from intermediaries acting for them. The depositary collects fees for making distributions to investors by deducting those fees from the
amounts distributed or by selling a portion of distributable property to pay the fees. The depositary may collect its annual fee for depositary services by
deduction from cash distributions or by directly billing investors or by charging the book-entry system accounts of participants acting for them. The
depositary may generally refuse to provide fee-attracting services until its fees for those services are paid.
From time to time, the depositary may make payments to us to reimburse and / or share revenue from the fees collected from ADS holders, or
waive fees and expenses for services provided, generally relating to costs and expenses arising out of establishment and maintenance of the ADS
program. In performing its duties under the deposit agreement, the depositary may use brokers, dealers or other service providers that are affiliates of the
depositary and that may earn or share fees or commissions.
The depositary may convert currency itself or through any of its affiliates and, in those cases, acts as principal for its own account and not as
agent, advisor, broker or fiduciary on behalf of any other person and earns revenue, including, without limitation, transaction spreads that it will retain
for its own account. The revenue is based on, among other things, the difference between the exchange rate assigned to the currency conversion made
under the deposit agreement and the rate that the depositary or its affiliate receives when buying or selling foreign currency for its own account. The
depositary makes no representation that the exchange rate used or obtained in any currency conversion under the deposit agreement will be the most
favorable rate that could be obtained at the time or that the method by which that rate will be determined will be the most favorable to ADS holders,
subject to the depositary’s obligations under the deposit agreement. The methodology used to determine exchange rates used in currency conversions is
available upon request.
Payment of taxes
As an ADS holder, you will be responsible for any taxes or other governmental charges payable on your ADSs or on the deposited securities
underlying your ADSs. The depositary 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 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.
16
Reclassifications, recapitalizations and mergers
If we:
• Changes the nominal or par value of our shares
• Reclassify, split up or consolidate any of the deposited securities
• Recapitalize, reorganize, merge, liquidate, sell all or substantially all of our
assets, or take any similar action
Amendment and termination
Then:
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, deliver new ADSs or ask
you to surrender your outstanding ADRs in exchange for new ADRs
identifying the new deposited securities.
We may agree with the depositary 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 as to outstanding ADSs 30 days after the depositary notifies ADS holders of the
amendment:
•
adds or increases fees or charges, except for:
•
•
•
•
•
taxes and other governmental charges;
registration fees;
cable, telex or facsimile transmission costs;
delivery costs or other such expenses; or
prejudices any important right of ADS holders.
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 depositary will terminate the deposit agreement if we ask it to do so. In such case, the depositary must notify you at least 90 days before
termination. The depositary may also terminate the deposit agreement if the depositary has told us that it would like to resign and we have not appointed
a new depositary bank within 90 days.
17
After termination, the depositary and its agents will be required to do only the following under the deposit agreement:
•
•
collect distributions on the deposited securities;
sell rights and other property; and
One year after termination, the depositary may sell any remaining deposited securities. After that, the depositary 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 depositary’s 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 depositary.
Limitations on obligations and liability
The deposit agreement expressly limits our obligations and the obligations of the depositary, and it limits our liability and the liability of the
depositary. We and the depositary:
•
•
•
•
•
are only obligated to take the actions specifically provided for in the deposit agreement without negligence or bad faith;
are not liable if either is prevented or delayed by law or circumstances beyond their control from performing our obligations under the
deposit agreement;
are not liable if either exercises discretion permitted under the deposit agreement;
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
may rely upon any documents they believe in good faith to be genuine and to have been signed or presented by the proper party.
In the deposit agreement, we and the depositary have agreed to indemnify each other under designated circumstances.
Requirements for depositary actions
The ADSs are transferable on the books of the depositary, provided that the depositary 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 depositary will deliver the underlying ordinary shares to an
account designated by you or register transfer of ADS, make a distribution on ADSs, or process a withdrawal of shares, the depositary may require:
•
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;
18
•
•
production of satisfactory proof of the identity and genuineness of any signature or other information it deems necessary; and
compliance with regulations it may establish, from time to time, consistent with the deposit agreement, including presentation of transfer
documents.
The depositary may refuse to deliver, transfer or register transfers of ADSs generally when our books or the books of the depositary are closed, or
at any time if the depositary or we think it advisable to do so.
Your right to receive the ordinary shares underlying your ADSs
You have the right to surrender your ADSs and withdraw the underlying ordinary shares at any time except:
•
•
•
when temporary delays arise because: (1) the depositary 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;
when you owe money to pay fees, taxes and similar charges; or
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.
The right of withdrawal may not be limited by any other provision of the deposit agreement.
Inspection of register of holders of ADSs
You have a right to inspect the register of holders of ADSs, but not for the purpose of contacting those holders about a matter unrelated to our
business or the ADSs.
Direct Registration System
In the deposit agreement, all parties to the deposit agreement acknowledge that the Direct Registration System, also referred to as DRS, and
Profile Modification System, also referred to as Profile, will apply to the ADSs. DRS is a system administered by DTC that facilitates interchange
between registered holding of uncertificated ADSs and holding of security entitlements in ADSs through DTC and a DTC participant. Profile is feature
of DRSs that allows a DTC participant, claiming to act on behalf of a registered holder of uncertificated ADSs, to direct the depositary to register a
transfer of those ADSs to DTC or its nominee and to deliver those ADSs to the DTC account of that DTC participant without receipt by the depositary
of prior authorization from the ADS holder to register that transfer.
In connection with and in accordance with the arrangements and procedures relating to DRS/ Profile, the parties to the deposit agreement
understand that the depositary will not determine whether the DTC participant that is claiming to be acting on behalf of an ADS holder in requesting
registration of transfer and delivery as described in the paragraph above has the actual authority to act on behalf of the ADS holder (notwithstanding any
requirements under the Uniform Commercial Code). In the deposit agreement, the parties agree that the depositary’s reliance on and compliance with
instructions received by the depositary through the DRS/Profile system and in accordance with the deposit agreement will not constitute negligence or
bad faith on the part of the depositary.
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Conversion between ADSs and Ordinary Shares (Item 12.D.1 and 12.D.2 of Form 20-F)
Dealings and Settlement of Shares in Hong Kong
Our ordinary shares now trade on the Hong Kong Stock Exchange in board lots of 50 ordinary shares. Dealings in our ordinary shares on the Hong
Kong Stock Exchange will be conducted in Hong Kong dollars.
The transaction costs of dealings in our Shares on the Hong Kong Stock Exchange include:
•
•
•
•
•
•
•
•
Hong Kong Stock Exchange trading fee of 0.005% of the consideration of the transaction, charged to each of the buyer and seller;
SFC transaction levy of 0.0027% of the consideration of the transaction, charged to each of the buyer and seller;
trading tariff of HK$0.50 on each and every purchase or sale transaction. The decision on whether or not to pass the trading tariff onto
investors is at the discretion of brokers;
transfer deed stamp duty of HK$5.00 per transfer deed (if applicable), payable by the seller;
ad valorem stamp duty at a total rate of 0.2% of the value of the transaction, with 0.1% payable by each of the buyer and the seller;
stock settlement fee, which is currently 0.002% of the gross transaction value, subject to a minimum fee of HK$2.00 and a maximum fee
of HK$100.00 per side per trade;
brokerage commission, which is freely negotiable with the broker (other than brokerage commissions for IPO transactions which are
currently set at 1% of the subscription or purchase price and will be payable by the person subscribing for or purchasing the securities);
and
the Hong Kong share registrar will charge between HK$2.50 to HK$20, depending on the speed of service (or such higher fee as may from
time to time be permitted under the Hong Kong Listing Rules), for each transfer of Shares from one registered owner to another, each share
certificate canceled or issued by it and any applicable fee as stated in the share transfer forms used in Hong Kong.
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Investors must settle their trades executed on the Hong Kong Stock Exchange through their brokers directly or through custodians. For an investor
who has deposited their ordinary shares in their stock account or in their designated CCASS participant’s stock account maintained with CCASS,
settlement will be effected in CCASS in accordance with the General Rules of CCASS and CCASS Operational Procedures in effect from time to time.
For an investor who holds the physical certificates, settlement certificates and the duly executed transfer forms must be delivered to their broker or
custodian before the settlement date.
Exchanges Between Shares Trading in Hong Kong and ADSs
In connection with the listing of our ordinary shares on the Hong Kong Stock Exchange, we have established a branch register of members in
Hong Kong, or the Hong Kong Share Register, which is maintained by our Hong Kong Share Registrar, Computershare Hong Kong Investor Services
Limited. Our principal register of members, or the Cayman share register, continues to be maintained by our principal share registrar, Maples Fund
Services (Cayman) Limited.
All ordinary shares offered in the initial public offering of our ordinary shares in Hong Kong are registered on the Hong Kong Share Register in
order to be listed and traded on the Hong Kong Stock Exchange. As described in further detail below, holders of ordinary shares registered on the Hong
Kong Share Register are able to exchange these shares into ADSs, and vice versa.
Our ADSs
ADSs representing our ordinary shares are traded on Nasdaq. Dealings in ADSs on Nasdaq are conducted in U.S. dollars.
ADSs may be held either:
•
•
directly: (i) by having an American Depositary Receipt, or ADR, which is a certificate evidencing a specific number of ADSs registered in
the holder’s name; or (ii) by having uncertified ADSs registered in the holder’s name; or
indirectly, by holding a security entitlement in ADSs through a broker or other financial institution that is a direct or indirect participant in
The Depository Trust Company, also called DTC.
The depositary for the ADSs is The Bank of New York Mellon, whose office is located at 240 Greenwich Street, New York, New York 10286,
United States.
Depositing ordinary shares trading in Hong Kong for delivery of ADSs
An investor who holds ordinary shares registered in Hong Kong and who intends to exchange them for ADSs to trade on Nasdaq must deposit or
have his or her broker deposit the ordinary shares with the depositary’s Hong Kong custodian, The Hong Kong and Shanghai Banking Corporation
Limited, Hong Kong, or the custodian, in exchange for ADSs.
21
A deposit of ordinary shares in exchange for ADSs involves the following procedures:
•
•
•
If ordinary shares have been deposited with CCASS, the investor must transfer ordinary shares to the depositary’s account with the
custodian within CCASS by following the CCASS procedures for transfer and submit and deliver a duly completed and signed ADS
delivery form to the custodian via his or her broker.
If ordinary shares are held outside CCASS, the investor must arrange for the deposit of his or her ordinary shares into CCASS and then
proceed as described above.
Upon payment of its fees and expenses and of any taxes or charges, such as stamp duties or stock transfer taxes or fees, if applicable, the
depositary will register the corresponding number of ADSs in the name(s) requested by an investor and will deliver the ADSs as instructed
in the ADS delivery form.
For ordinary shares deposited in CCASS, under normal circumstances, the above steps generally require two business days, provided that the
investor has provided timely and complete instructions. For ordinary shares held outside CCASS in physical form, the above steps may take 14 business
days, or more, to complete. Temporary delays may arise. For example, the transfer books of the depositary may from time to time be closed to ADS
issuances. The investor will be unable to trade the ADSs until the procedures are completed.
Surrender of ADSs for delivery of ordinary shares trading in Hong Kong
An investor who holds ADSs and wishes to receive ordinary shares that trade on the Hong Kong Stock Exchange must surrender the ADSs the
investor holds and withdraw ordinary shares from the ADS program and cause his or her broker or other financial institution to trade such ordinary
shares on the Hong Kong Stock Exchange.
An investor that holds ADSs indirectly through a broker or other financial institution should follow the procedure of the broker or financial
institution and instruct the broker to arrange for surrender of the ADSs, and transfer of the underlying ordinary shares from the depositary’s account with
the custodian within the CCASS system to the investor’s Hong Kong stock account.
For investors holding ADSs directly, the following steps must be taken:
•
•
•
To withdraw ordinary shares from the ADS program, an investor who holds ADSs may turn in such ADSs at the office of the depositary
(and the applicable ADR(s) if the ADSs are held in certificated form), and send an instruction to cancel such ADSs to the depositary.
Upon payment or net of its fees and expenses and of any taxes or charges, such as stamp duties or stock transfer taxes or fees, if applicable,
the depositary will instruct the custodian to deliver ordinary shares underlying the canceled ADSs to the CCASS account designated by an
investor.
If an investor prefers to receive Shares outside CCASS, he or she must so indicate in the instruction delivered to the depositary.
22
For ordinary shares to be received in CCASS, under normal circumstances, the above steps generally require two business days, provided that the
investor has provided timely and complete instructions. For ordinary shares to be received outside CCASS in physical form, the above steps may take 14
business days, or more, to complete. The investor will be unable to trade the ordinary shares on the Hong Kong Stock Exchange until the procedures are
completed.
Temporary delays may arise. For example, the transfer books of the depositary may from time to time be closed to ADS cancelations.
Depositary requirements
Before the depositary delivers ADSs or permits withdrawal of ordinary shares, the depositary may require:
•
•
production of satisfactory proof of the identity and genuineness of any signature or other information it deems necessary; and
compliance with procedures it may establish, from time to time, consistent with the deposit agreement, including completion and
presentation of transfer documents.
The depositary may refuse to deliver, transfer, or register issuances, transfers and cancelations of ADSs generally when the transfer books of the
depositary or our Hong Kong share registrar are closed or at any time if the depositary or we determine it advisable to do so.
All costs attributable to the transfer of ordinary shares to effect a withdrawal from or deposit of ordinary shares into the ADS program will be
borne by the investor requesting the transfer or deposit. In particular, holders of ordinary shares and ADSs should note that the Hong Kong Share
Registrar will charge between HK$2.50 to HK$20, depending on the speed of service (or such higher fee as may from time to time be permitted under
the Hong Kong Listing Rules), for each transfer of ordinary shares from one registered owner to another, each share certificate canceled or issued by it
and any applicable fee as stated in the share transfer forms used in Hong Kong. In addition, holders of ordinary shares and ADSs must pay up to
US$5.00 per 100 ADSs (or portion thereof) for each issuance of ADSs and each cancelation of ADSs, as the case may be, in connection with the deposit
of ordinary shares into, or withdrawal of ordinary shares from, the ADS facility.
23
This Loan Agreement (this “Agreement”) is entered into in Shanghai, the People’s Republic of China (“PRC”) as of by
LOAN AGREEMENT
Exhibit 4.7
and between the following parties:
(1)
(2)
Party A:
Address: ; and
Party B:
Sex:
PRC Identification Card No.:
Address: ;
(In this Agreement, Party A and Party B are hereinafter collectively referred to as the “Parties” and individually, as a “Party.”)
WHEREAS
(1)
(2)
Party A is a wholly foreign owned enterprise duly incorporated and validly existing under the PRC laws, and Party B is a PRC citizen.
Party B holds % equity interest in (“Ctrip Commerce”), and needs to obtain financial support from Party A to
contribute such equity interest; meanwhile, Party A is willing to provide capitals to Party B in the form of a loan for Party B’s capital
contribution to Ctrip Commerce.
NOW, THEREFORE, Upon mutual consultation, the Parties hereby agree as follows:
1.
1.1
Loan
Subject to the terms and conditions of this Agreement, Party A agrees to provide Party B with a long-term loan at an aggregate amount of
RMB (¥ ) (the “Loan”).
1.2
Party A confirms to have received the Loan and Party B shall ensure the Loan to be used for contribution of Ctrip Commerce’s registered capital.
1.3 The Parties agree and confirm that any increase of the registered capital of Ctrip Commerce subscribed by Party B in the future shall be funded by
a loan from Party A, and with respect to such increase of the registered capital, the Parties agree to enter into a supplementary agreement based on
this Agreement. Party B shall not pay such subscribed increase of registered capital with its own funds or through a loan from a third party other
than Party A, except with the written consent from Party A.
1.4 The Parties agree and confirm that unless otherwise provided herein, the Loan hereunder shall be interest free, which is to say, Party B does not
need to pay any interest to Party A with respect to the Loan hereunder.
2.
2.1
Use of Loan
Party B agrees to accept the Loan provided by Party A, and hereby agrees and undertakes that the Loan has been used in its entirety to pay Party
B’s subscription to the registered capital of Ctrip Commerce for its formation or to subscribe to the increase (if any) of the registered capital of
Ctrip Commerce. Party B shall use the Loan solely for the foregoing purpose, and shall not use the Loan for any purposes other than that agreed
herein unless Party A’s prior written consent has been obtained. Furthermore, Party B shall not transfer or pledge its equity interest or other rights
in Ctrip Commerce to any third party, or otherwise dispose of its equity interest in Ctrip Commerce, including creating any encumbrances
thereupon, except for the benefit of Party A and/or its designated person (including legal or natural, the “Party A’s Designated Person”) as
requested by Party A.
2.2
Party B hereby agrees and confirms that it will not withdraw and take out its contribution to Ctrip Commerce throughout the operating term of
Ctrip Commerce.
3.
Term of Loan
3.1 The term of the Loan hereunder shall commence from the date when Party B actually receives the Loan to the tenth (10th) anniversary of the date
hereof (the “Term of Loan”).
3.2 The Term of Loan will be automatically extended for another ten (10) years upon the expiry of the first ten-year term, and so forth thereafter for
unlimited number of times, unless Party A sends a prior written notice to disapprove the extension of Term of Loan. Once Party A sends such
notice, the Loan shall become mature at the end of the term, and Party B shall perform its repayment obligation in the manner stipulated in Article
4 below within thirty (30) days upon the maturity of the Loan. Party B has no right to decide on the extension of the term, nor may it repay the
Loan before scheduled.
3.3 During the term or any extended term of the Loan, the Loan will become immediately due and payable by Party B (or its inheritors, successors or
assigns) in the manner stipulated in Article 4 hereof if:
(1)
(2)
Party B dies or becomes a person incapacitated or with limited capacity for civil acts;
Party B ceases to hold the position of director or senior officer of Party A or any of its affiliates, or leaves, or is dismissed by, Party A or
any of its affiliates;
(3)
Party B commits or is involved in a crime;
(4)
(5)
(6)
(7)
any third-party claims RMB five hundred thousand (¥500,000) against Party B;
any of the representations or warranties made by Party B hereunder is proved to be untrue at the time it is made, or inaccurate in any
material respect; or Party B breaches any of its obligations under this Agreement or any other agreement entered into with Party A,
including without limitation the Equity Pledge Agreement (as defined below) and Exclusive Call Option Agreement (as defined below);
Party A exercises the exclusive call option under the Exclusive Call Option Agreement defined in Article 5.2 below;
this Agreement, the Equity Pledge Agreement, or the Exclusive Call Option Agreement is terminated or held invalid by any court for any
reason whatsoever; or
(8)
Party A, at its sole discretion, sends a written notice to Party B at any time, requesting Party B to repay the Loan earlier than scheduled.
4.
4.1
4.2
4.3
Repayment of Loan
Party A and Party B hereby mutually agree and confirm that the Loan shall be repaid in the following manner only: to the extent permitted by
applicable laws, Party B will transfer all or part of its equity interest in Ctrip Commerce to Party A or Party A’s Designated Person as requested by
Party A in writing.
Party A and Party B hereby mutually agree and confirm that any and all proceeds from Party B’s transfer of its equity interest in Ctrip Commerce
shall be entirely used for repayment of the principal of the Loan and as the consideration for the grant of the Loan by Party A to Party B; the
principal of the Loan and such consideration shall be fully paid in the manner designated by Party A.
Party A and Party B hereby mutually agree and confirm that, to the extent permitted by the applicable laws, Party A has the right but no obligation
to purchase, or have Party A’s Designated Person purchase at any time, all or part of the equity interest held by Party B in Ctrip Commerce at any
price confirmed by Party A.
4.4
Party A and Party B hereby mutually agree and confirm that, Party B shall be deemed to have fulfilled its repayment obligations hereunder only
after both of the following conditions have been satisfied:
(1)
(2)
Party B shall have transferred all of its equity interests in Ctrip Commerce to Party A and/or Party A’s Designated Person as requested by
Party A; and
Party B has repaid to Party A the entire transfer proceeds for repayment of the principal of the Loan and as consideration for the grant of
the Loan by Party A to Party B hereunder.
4.5
If Ctrip Commerce goes bankrupt, is dissolved or is duly ordered for closure during the term of the Loan hereunder, Party B shall liquidate Ctrip
Commerce according to laws and transfer all of the proceeds or remaining property from such liquidation to Party A for repayment of the principal
of the Loan and as consideration for the grant of Loan by Party A to Party B hereunder.
4.6
Interest of Loan
(1)
(2)
The Loan will be deemed as a zero interest loan if the price to transfer the equity interests in Ctrip Commerce to Party A or Party A’s
Designated Person by Party B is equal to or less than the principal of the Loan;
On the other hand, if the equity interest transfer price exceeds the principal of the Loan hereunder, the exceeding amount shall, to the
extent permitted by applicable law, be deemed as the consideration for the grant of Loan by Party A to Party B hereunder, and shall be
reimbursed to Party A by Party B together with the principal of the Loan. Such consideration shall include, without limitation, highest
interest possible accrued on the Loan during the term of the Loan to the extent permitted by applicable law, cost of capital occupation, and
all taxes, fees and expenses incurred by the parties (including transferor and transferee) over the course of equity transfer by Party B to
Party A or Party A’s Designated Person under this Agreement.
5.
Conditions Precedent to the Loan
The conditions for Party A to provide the Loan to Party B are set out below:
5.1
5.2
5.3
5.4
Party A and Party B having duly entered into an Equity Pledge Agreement (the “Equity Pledge Agreement”), pursuant to which Party B agrees to
pledge all its equity interest in Ctrip Commerce to Party A;
Party A, Party B and Ctrip Commerce having duly entered into an Exclusive Call Option Agreement (the “Exclusive Call Option Agreement”),
pursuant to which Party B will grant an irrevocable and exclusive call option for Party A to purchase all of Party B’s equity interest in Ctrip
Commerce;
each of the representations and warranties made by Party B under Article 6.2 below being true, complete, correct and not misleading, and will be
true, complete, correct and not misleading as of the day when the Loan is received; and
Party B not breaching any of its covenants made in Article 7 below, and no events having occurred or being anticipated to occur that may affect
Party B’s performance of its obligations hereunder.
6.
6.1
Representations and Warranties
From the date of this Agreement or the date of receiving the Loan (whichever is the earliest) until the termination hereof, Party A represents and
warrants to Party B that:
(1)
(2)
(3)
it is a wholly foreign-owned company duly incorporated and validly existing under the laws of the PRC;
it has the power and receives all approvals and authorities necessary and appropriate to execute and perform this Agreement. Its execution
and performance of this Agreement are in compliance with its business scope, its articles of association or other organizational documents;
neither the execution nor the performance of this Agreement by Party A is in breach of any law, regulation, government approval,
authorization, notice or any other government document by which it is bound or affected, or any agreement between it and any third party
or any covenant issued to any third party; and
(4)
this Agreement, once executed, constitutes a legal, valid and enforceable obligation upon Party A.
6.2
From the date of this Agreement until the termination hereof, Party B represents and warrants to Party B that:
(1)
(2)
(3)
(4)
(5)
neither the execution nor the performance of this Agreement by Party B is in breach of any law, regulation, government approval,
authorization, notice or any other government document by which it is bound or affected, or any agreement between it and any third party
or any covenant issued to any third party;
this Agreement, once executed, constitutes a legal, valid and enforceable obligation upon Party A;
it will duly pay up the full contribution with respect to its equity interest in Ctrip Commerce according to law, and has not withdrawn or
taken out any of its contributions to Ctrip Commerce;
except for those provided under the Equity Pledge Agreement and Exclusive Call Option Agreement, it creates no mortgage, pledge or any
other encumbrance (including security interest) upon its equity interest in Ctrip Commerce, provides no offer to any third party to transfer
such equity interest, makes no covenant regarding any offer to purchase such equity interest from any third party, or enters into any
agreement with any third party to transfer such equity interest;
there is no existing or potential dispute, suit, arbitration, administrative proceeding or any other legal proceeding relating to Party B and/or
its equity interest in Ctrip Commerce; and
(6)
Ctrip Commerce has completed all government approvals, authorizations, licenses, registrations and filings necessary to conduct its
businesses included in its business scope and own its assets.
7.
Covenants by Party B
7.1
Party B covenants in its capacity of shareholder of Ctrip Commerce that during the Term of Loan it will cause Ctrip Commerce:
(1)
(2)
(3)
(4)
(5)
(6)
(7)
(8)
(9)
not to, in any form whatsoever, supplement, amend or modify its articles of association or organizational documents, or increase or
decrease its registered capital, or change its shareholding structure without prior written consent from Party A;
to maintain its existence, prudently and effectively operate its businesses and deal with its affairs in line with fair financial and business
standards and customs;
not to make any act and/or omission that may materially affect Ctrip Commerce’s assets, business and liabilities without prior written
consent from Party A; at any time as of the date hereof, not to sell, transfer, pledge or otherwise dispose of any legal or beneficial interest
in any of Ctrip Commerce’s assets, businesses or revenues, or allow creation of any other form of encumbrances thereon without prior
written consent from Party A;
not to incur, inherit, guarantee or allow the existence of any debt without prior written consent from Party A, except for (i) any debt arising
from ordinary or day-to-day business rather than from borrowing; and (ii) any debt which has been disclosed to and has obtained the
written consent from Party A;
to always carry out all activities in the ordinary course of business to maintain the value of its assets, and not to make any act and/or
omission that may adversely affect its results and asset value;
not to enter into any material contract without prior written consent from Party A, other than those executed in the ordinary course of
business (for purpose of this paragraph, any contract with a contact value exceeding RMB fifty thousand (50,000) shall be deemed as a
material contract)
not to provide any loan or guarantee to any person without prior written consent from Party A;
to provide any and all information regarding its operations and financial conditions at the request from Party A;
to purchase and always maintain requisite insurance policies from an insurer acceptable to Party A, the amount and type of which shall be
the same as or equivalent to those maintained by the companies having similar operations, properties or assets in the same region;
(10)
not to combine, merge with, be acquired by, acquire or invest in any person without prior written consent from Party A;
(11)
(12)
(13)
(14)
to immediately notify Party A of any actual or potential occurrence of any litigation, arbitration or administrative proceeding regarding its
assets, business and revenue;
to execute all documents, conduct all actions, and make all claims or defenses necessary or appropriate to maintain its ownership of all of
its assets;
not to distribute any form of dividends to any shareholder of Ctrip Commerce without the prior written consent from Party A, but to
immediately distribute all distributable profits to the shareholders of Ctrip Commerce upon Party A’s request; and
to strictly comply with the provisions of the Exclusive Call Option Agreement, and not to make any act and/or omission which may affect
its validity and enforceability.
7.2
Party B covenants during the Term of Loan:
(1)
(2)
(3)
(4)
(5)
(6)
not to sell, transfer, pledge or otherwise dispose of any legal or beneficial interest in Party B’s equity interest, or allow creation of any other
encumbrances (including security interest) thereon without prior written consent from Party A, except for those provided under the Equity
Pledge Agreement and Exclusive Call Option Agreement;
to cause the shareholders’ meeting of Ctrip Commerce not to approve any sale, transfer, pledge or otherwise disposal of any legal or
beneficial interest in Party B’s equity, or allow creation of any other security interests thereupon without prior written consent from Party
A, except to Party A or Party A’s Designated Person;
not to vote for, support or execute any resolution at shareholders’ meetings of Ctrip Commerce to approve Ctrip Commerce’s merger or
association with, acquisition by, acquisition of or investment in any person without prior written consent from Party A;
to immediately notify Party A of any actual or potential occurrence of litigation, arbitration or administrative proceeding regarding its
equity interest in Ctrip Commerce;
to execute all documents, conduct all actions, and make all claims or defenses necessary or appropriate to maintain its ownership of its
equity interest in Ctrip Commerce;
not to make any act and/or omission which may materially affect any asset, business or liability of Ctrip Commerce without prior written
consent from Party A;
(7)
(8)
(9)
(10)
to accept and appoint the persons designated by Party A as directors, general manager and other senior management of Ctrip Commerce
upon Party A’s request, and actively assist Party A in dealing with all matters in connection with the appointment of such persons,
including but not limited to execution of necessary documents, and assist the registration of the appointment of such senior management at
the AIC;
to the extent permitted under the PRC laws and at the request of Party A at any time, to transfer unconditionally and immediately all or part
of its equity interests in Ctrip Commerce to Party A or Party A’s Designated Person, and waive its right of first refusal on the equity
interests transferred by other shareholders of Ctrip Commerce to Party A or Party A’s Designated Person; to actively assist all the matters
in connection with the equity transfer, including but not limited to execution of necessary documents, and assist the registration of the
equity transfer at the AIC;
if Party A purchases Party B’s equity interest in Ctrip Commerce pursuant to the Exclusive Call Option Agreement, to use the price of such
purchase to repay the Loan to Party A as agreed in this Agreement;
to strictly comply with the provisions of this Agreement, the Equity Pledge Agreement and the Exclusive Call Option Agreement,
diligently perform its obligations under each of such agreements, without making any act and/or omission which suffices to affect the
validity and enforceability of each of such agreements; and
(11)
to agree and undertake to sign an irrevocable power of attorney authorizing Party A or Party A’s Designated Person to exercise on its
behalf all of its rights as shareholder of Ctrip Commerce.
8.
Effectiveness and Termination
8.1 This Agreement shall become effective as of the date of its execution. The Parties hereby agree and confirm that the effect of the terms and
conditions of this Agreement shall retrospect to the day when Party B receives the Loan.
8.2 This Agreement shall remain valid until the Parties have performed their respective obligations under this Agreement.
8.3
In no event shall Party B be entitled to unilaterally terminate or cancel this Agreement.
9.
9.1
Liabilities for Breach of Contract
If any party (“Defaulting Party”) breaches any provision of this Agreement, which causes damage to the other party (“Non- defaulting Party”),
the Non-defaulting Party could notify the Defaulting Party in writing and request it to rectify and correct such breach of contract; if the Defaulting
Party fails to take any action satisfactory to the Non-defaulting Party to rectify and correct such breach within fifteen (15) working days upon the
issuance of the written notice by the Non-defaulting Party, the Non-defaulting Party may immediately take the actions pursuant to this Agreement
or take other remedies in accordance with laws.
9.2
If Party B fails to repay the Loan within the period and in the manner stipulated under this Agreement, it will be liable for a penalty interest
accrued upon the amount outstanding and payable at a daily interest rate of 0.01% for each overdue day until the Loan as well as any penalty
interest and any other amount accrued thereupon are fully repaid by Party B as required herein.
10. Notices
Notices or other communications required to be given by any Party pursuant to this Agreement shall be written in Chinese or English and
delivered personally or sent by registered mail, postage prepaid mail, express delivery or facsimile transmission to the addresses of the other Parties set
forth below, or to other designated addresses notified by such other Parties to such Party from time to time, or the addresses of other persons designated
by such Party. A notice is deemed to be duly served: (a) if delivered personally, upon the delivery; (b) if sent by mail, on the tenth (10th) day after the
date when the air registered mail with postage prepaid has been sent out (as is shown on the postmark), or the fourth (4th) day after delivered to the
courier service agency; and (c) if sent by facsimile transmission, upon the receipt time as is shown on the transmission confirmation of relevant
documents.
If to Party A:
Attn:
Address:
Phone: ( )
Fax: ( )
If to Party B:
Address:
Phone: ( )
Fax: ( )
11. Confidentiality
All Parties acknowledge and confirm that any oral or written materials exchanged by and between the Parties in connection with this Agreement
are confidential. All Parties shall keep secret of all such documents and not disclose any such documents to any third party without prior written consent
from other Parties, except for such information: (a) as are known or will be known by the public (except by disclosure of the receiving party without
authorization); (b) as are required to be disclosed in accordance with applicable laws or stock exchange rules or regulations; or (c) as are required to be
disclosed by any Party to its legal counsel or financial consultant for the purpose of the transaction of this Agreement, provided that such legal counsel
or financial consultant shall also be subject to the confidentiality obligation similar to that stated hereof. Any disclosure by employees or agencies
employed by any Party shall be deemed the disclosure of such Party and such Party shall assume the liabilities for its breach of contract pursuant to this
Agreement. This Article shall survive even if this Agreement is judged as void, cancelled, terminated or impractical for any reason whatsoever.
12. Governing Law and Dispute Resolution
12.1 The formation, validity, interpretation, performance and termination of this Agreement and the amendment hereto as well as the resolution of any
disputes arising hereunder shall be governed by the PRC laws.
12.2 Any disputes arising from the interpretation and performance of this Agreement shall first be resolved through friendly consultation among the
Parties. In case no settlement can be reached through consultation within thirty (30) days after the request for consultation is made by any Party
with a written notice, any Party can submit such disputes to Shanghai International Economic and Trade Arbitration Commission for arbitration in
accordance with its then effective rules. The arbitration shall take place in Shanghai. The arbitration proceedings shall be conducted in Chinese.
The arbitration award shall be final and binding upon both Parties.
12.3 If any dispute arises from the interpretation and performance of this Agreement or any dispute is under arbitration, the Parties shall continue to
perform their respective rights and obligations hereunder other than those in dispute.
13. Miscellaneous
13.1 The headings contained in this Agreement are for the convenience of reference only and shall not be used to interpret, explain or otherwise affect
the meaning of the provisions of this Agreement.
13.2 The Parties agree to promptly execute such documents, or take such further actions, as are reasonably necessary or beneficial for performing the
provisions or achieving the purposes hereof.
13.3 The Parties confirm that this Agreement shall, upon its effectiveness, constitute the entire agreement and common understanding of the Parties
with respect to the contents herein and fully supersede all prior verbal and/or written agreements and understandings between the Parties with
respect to the contents herein.
13.4 If any one or more provisions of this Agreement is identified or judged by a court of competent jurisdiction or arbitration authority as void, invalid
or unenforceable in any respect according to any laws or regulations, the validity, legality and enforceability of the other provisions hereof shall
not be affected or impaired in any way. The Parties shall cease performing such void, invalid or unenforceable provisions and revise those void,
invalid or unenforceable provisions only to the extent closest to the original intention thereof to recover its validity or enforceability for such
specific facts and circumstances.
13.5 Party B hereby agrees and confirms that, (i) if Party B dies or loses or be limited from his/her full capacity for civil conducts, his/her rights and
obligations hereunder will be immediately transferred to and succeeded by Party A’s Designated Person, or Party A is allowed to exercise all
rights, including but not limited to have the equity interests of Ctrip Commerce held by Party B transferred to Party A’s Designated Person;
(ii) Party A may assign its rights and obligations under this Agreement to Party A’s Designated Person as Party A may decide at its sole discretion,
and such assignment to Party B’s successor and guardian shall only be subject to a written notice sent to Party B at the time of transfer, without
subject to its consent. When and as requested by Party A, Party B shall execute with the assignee a supplementary agreement or an agreement
substantially the same as this Agreement.
13.6 This Agreement shall be effective and binding upon the Parties hereto and their respective inheritors, successors and assigns. Party B may not
assign any of its rights, interests or obligations under this Agreement to any third party without prior written consent from Party A.
13.7 Any Party’s failure to exercise the rights under this Agreement in time shall not be deemed as its waiver of such rights and would not affect its
future exercise of such rights.
13.8 Any matters excluded in this Agreement shall be negotiated by the Parties. Any amendment and supplement to this Agreement and its exhibits
shall be made by the Parties in writing. The amendment and/or supplement duly executed by each Party with respect to this Agreement shall be
indispensable part of this Agreement and have the same legal effect as this Agreement.
13.9 This Agreement is made in two (2) originals with each Party holding one (1) original. Each original has the same effect.
IN WITNESS WHEREOF, this Agreement has been duly executed by the Parties or their respective authorized representatives on the date first
above written.
[The remainder of this page is intentionally left blank]
[This page is execution page]
Party A:
Signature:
Authorized representative:
(stamp)
Party B:
Signature:
The following schedule sets forth other major similar agreements the registrant entered into with each of its consolidated affiliated Chinese
entities. Other than the information set forth below, there is no material difference between such other agreements and this exhibit.
VIE
Executing Parties
Execution Date
Amount
Schedule A
Shanghai Ctrip
Commerce Co., Ltd.
Chengdu Ctrip Travel
Agency Co., Ltd.
Party A (Lender): Ctrip Travel Network Technology
(Shanghai) Co., Ltd.
Party B (Borrower): Maohua Sun
Party A (Lender): Ctrip Travel Network Technology
(Shanghai) Co., Ltd.
Party B (Borrower): Bo Sun
Party A (Lender): Ctrip Travel Network Technology
(Shanghai) Co., Ltd.
Party B (Borrower): Fan Min
Party A (Lender): Ctrip Travel Network Technology
(Shanghai) Co., Ltd.
Party B (Borrower): Shi Qi
December 14, 2015
(as amended on
April 9, 2019)
November 8, 2021
RMB91.8 million
RMB808.2 million
December 14, 2015
RMB497.5 million
December 14, 2015
RMB2.5 million
This Exclusive Call Option Agreement (this “Agreement”) is entered into in Shanghai, the People’s Republic of China (“PRC”) as of
EXCLUSIVE CALL OPTION AGREEMENT
Exhibit 4.8
by and among the following parties:
(1)
(2)
Party A:
Address:
Party B:
Sex:
PRC Identification Card No.:
Address: ; and
(3)
Party C:
Address:
(In this Agreement, Party A, Party B and Party C are hereinafter collectively referred to as the “Parties” and individually, as a “Party.”)
WHEREAS
(1)
Party A is a wholly foreign owned enterprise duly incorporated and validly existing under the PRC laws.
(2)
Party C is a limited liability company duly incorporated and validly existing under the PRC laws, and Party B is the registered shareholder of
Party C duly holding ___% of its equity interests.
(3)
Party A and Party B entered into a Loan Agreement as of (the “Loan Agreement”).
(4)
Party B agrees to grant Party A through this Agreement with, and Party A agrees to accept, an exclusive call option to purchase all or part of the
equity interests held by Party B in Party C.
NOW, THEREFORE, Upon mutual consultation, the Parties hereby agree as follows:
1.
Exclusive Call Option
1.1
Grant of Right
Party B hereby exclusively and irrevocably grants Party A an exclusive call option (the “Call Option”), which permits Party A to purchase
or designate one or several person(s) (“Party A’s Designated Person”) to purchase all or part of the equity interests held by Party B in Party C
(the “Target Equity”) at any time from Party B at the price specified in Article 1.3 of this Agreement in accordance with the procedure
determined by Party A at its own discretion and to the extent permitted by the PRC laws. Party A shall have the right to decide any Party A’s
Designated Person to be the transferee of and acquire all or part of the Target Equity; Party B shall not refuse, and shall assign and transfer the
Target Equity to such Party A’s Designated Person as requested by Party A. No third party other than Party A and Party A’s Designated Person
may be entitled to the Call Option. Party C hereby agrees with Party B’s grant of the Call Option to Party A. The “person” set forth in this
paragraph and this Agreement means any individual, corporation, joint venture, partnership, enterprise, trust or other non-corporation
organization.
1.2
Exercise Procedure
Subject to the PRC laws and regulations, Party A may exercise the Call Option pursuant to Article 1.1 hereinabove by issuing a written
notice (the “Purchase Notice”) to Party B specifying the specific percentage of equity interest to be purchased from Party B (the “Purchased
Equity Interest”) and the manner of purchase. Party A may exercise the Call Option for unlimited number of times. Within seven (7) working
days upon the receipt of the Purchase Notice by Party B, Party B shall enter into an equity transfer agreement with Party A and/or its Designated
Person in the form attached hereto or any other form accepted by Party A to ensure the Purchased Equity Interest can be transferred to Party A
and/or Party A’s Designated Person as soon as practicable and shall take any necessary action to ensure the prompt completion of the
corresponding change formalities at relevant Administration for Industry and Commerce.
1.3
Purchase Price
The Parties agree that the purchase price of the Purchased Equity Interest (“Purchase Price”) shall be equal to the contribution actually
made by Party B for the Purchased Equity Interest, unless the applicable PRC laws and regulations at the time of Party A’s exercise of the Call
Option require valuation of the Purchased Equity Interest or otherwise impose restriction on the Purchase Price. If the lowest price permissible
under the applicable laws is higher than the contribution actually made or paid by Party B for the Purchased Equity Interest, the amount exceeded
shall be repaid to Party A by Party B according to the Loan Agreement.
1.4
Transfer of the Purchased Equity Interest
Each time the Call Option is exercised:
(a) Party B shall cause Party C to convene a shareholders’ meeting in time. At the meeting, a resolution shall be adopted to
approve Party B’s transfer of equity interest to Party A and/or Party A’s Designated Person, and Party B shall sign a confirmation letter to
waive its first right of refusal on the equity interest transferred by Party C’s other shareholder(s) to Party A and/or Party A’s Designated
Person;
(b) Party B shall, pursuant to the terms and conditions of this Agreement and the Purchase Notice in respect of the Purchased
Equity Interest, enter into an equity transfer agreement with Party A and/or Party A’s Designated Person for each transfer in the form
attached hereto as Exhibit 1 or any other form accepted by Party A;
(c) The related Parties shall execute all other requisite contracts, agreements or documents, obtain all requisite governmental
approvals and consents, and conduct all necessary actions, to transfer the ownership of the Purchased Equity Interest to Party A and/or
Party A’s Designated Person without any security interest or other Encumbrances, and have Party A and/or Party A’s Designated Person be
registered as the registered owner of the Purchased Equity Interest at Administration for Industry and Commerce. For purposes of this
paragraph and this Agreement, “Encumbrances” mentioned herein include guarantees, mortgages, pledges, third-party rights or interests,
any call option, right of purchase, right of first refusal, right of set-off, ownership detainment or other security arrangements, but for
purpose of clarification, shall not include any security interest or encumbrances arising under this Agreement and the Equity Pledge
Agreement. The Equity Pledge Agreement mentioned in this paragraph and this Agreement shall mean the Equity Pledge Agreement
entered into by and between Party A and Party B as of the date hereof, pursuant to which Party B shall pledge to Party A all its equity
interest in Party C to guarantee the performance by Party B and Party C of their obligations under this Agreement, the Loan Agreement
and the Technical Consulting and Services Agreement, each entered into by and among the Parties.
(d) Party B and Party C shall unconditionally use its best efforts to assist Party A and Party A’s Designated Person in obtaining
all governmental approvals, permits, registrations, filings and completing all formalities necessary for acquiring the Purchased Equity
Interest.
1.5
Payment
Given that it is stipulated in the Loan Agreement that Party B shall use the entire proceeds from the transfer of its equity interest in Party C
for repayment of the principal of the loan under the Loan Agreement and as the consideration for Party A’s grant of loan under the Loan
Agreement, Party A or Party A’s Designated Person does not need to pay Purchase Price to Party B when exercising its Call Option.
2.
Covenants relating to the Equity Interest
2.1 Covenants relating to Party C
Party B and Party C hereby covenants:
(a) not to, in any form whatsoever, supplement, modify or amend the articles of association or organizational documents of Party
C, increase or decrease the registered capital of Party C, or change its shareholding structure without prior written consent from Party A;
(b) to maintain the due existence of Party C, and prudently and efficiently operate and handle its business in line with fair
finance and business standards and customs;
(c) not to make any act and/or omission that may adversely affect Party C’s assets, business and liabilities without prior written
consent from Party A; at any time as of the date hereof, not to sell, transfer, pledge or otherwise dispose of any legal or beneficial interests
in any of Party C’s assets, businesses or revenues, nor allow creation of other Encumbrances thereupon, including any security interests
without prior written consent from Party A;
(d) not to incur, inherit, guarantee or allow the existence of any debt without prior written consent from Party A, except for
(i) any debt arising from ordinary or day-to-day business rather than from borrowing; and (ii) any debt which has been disclosed to and has
obtained the written consent from Party A;
(e) to always carry out all activities in the ordinary course of business to maintain the value of Party C’s assets, and not to make
any act and/or omission that may adversely affect Party C’s results and asset value;
(f) not to enter into any material contract without prior written consent from Party A, other than those executed in the ordinary
course of business (for purpose of this paragraph, any contract with a contact value exceeding RMB fifty thousand (50,000) shall be
deemed as a material contract);
(g) not to provide any loan or guarantee to any person without prior written consent from Party A;
(h) to provide Party A with information about Party C’s operations and financial conditions at the request from Party A;
(i) to purchase and always maintain requisite insurance policies from an insurer acceptable to Party A, the amount and type of
which shall be the same as or equivalent to those maintained by the companies having similar operations, properties or assets in the same
region as Party C;
(j) not to combine, merge with, be acquired by, acquire or invest in any person without prior written consent from Party A;
(k) to immediately notify Party A of any actual or potential occurrence of any litigation, arbitration or administrative proceeding
related to Party C’s assets, business and revenue;
(l) to execute all documents, conduct all actions, and make all claims or defenses necessary or appropriate to maintain Party C’s
ownership of all its assets; and
(m) not to distribute any form of dividends to any shareholder of Party C without prior written consent from Party A, but to
immediately distribute all distributable profits to the shareholders of Party C upon Party A’s request.
2.2 Covenants relating to Party B
Party B hereby covenants:
(a) at any time as of the date hereof, not to sell, transfer, pledge or otherwise dispose of any legal or beneficial interests in any
equity interest, nor to allow creation of other Encumbrances thereupon without prior written consent from Party A, except for the pledge
created on the equity interest held by Party B in Party C pursuant to the Equity Pledge Agreement;
(b) cause Party C’s shareholders’ meeting not to approve the sale, transfer, pledge or other disposal of any legal or beneficial
interests in any equity interest, or allow creation of other Encumbrances thereupon without prior written consent from Party A, except to
Party A and/or Party A’s Designated Person; cause Party C’s shareholders’ meeting to vote for the transfer of the Purchased Equity Interest
contemplated herein.
(c) not to vote for, support or execute any shareholders’ resolution at Party C’s shareholders’ meeting to approve Party C’s
merger or combination with, acquisition by, acquisition of or investment in any person without prior written consent from Party A;
(d) to immediately notify Party A of any actual or potential occurrence of any litigation, arbitration or administrative proceeding
related to the equity interests held by Party B in Party C;
(e) to execute all documents, conduct all actions, and make all claims or defenses necessary and appropriate to maintain Party
B’s ownership of the equity interest in Party C;
(f) not to make any act and/or omission that may adversely affect Party C’s assets, business and liabilities without prior written
consent from Party A;
(g) to accept and appoint the persons designated by Party A as Party C’s directors, general manager and other senior
management upon Party A’s request, and actively assist Party A in dealing with all matters in connection with the appointment of such
persons, including but not limited to execution of necessary documents, and assist the registration of the appointment of such senior
management at the Administration for Industry and Commerce;
(h) to the extent permitted by PRC laws and upon Party A’s request at any time, to unconditionally and immediately transfer all
or part of the equity interest held by Party B in Party C to Party A and/or Party A’s Designated Person at any time, and to waive its first
right of refusal on the equity interest transferred by Party C’s other shareholders to Party A and/or Party A’s Designated Person; to actively
assist all the matters in connection with the equity transfer, including but not limited to execution of necessary documents, and assist the
registration of the equity transfer at the Administration for Industry and Commerce;
(i) to strictly comply with the provisions of this Agreement and other agreements jointly or severally executed by Party C and
Party A, and to duly perform all obligations under such agreements, without making any act or omission that suffices to affect the validity
and enforceability of these agreements; and
(j) to agree and undertake to execute an irrevocable power of attorney authorizing Party A or Party A’s Designated Person to
exercise on its behalf all of its rights as shareholder of Party C.
3.
Representations and Warranties
Party B hereby represents and warrants to Party A as of the date of this Agreement and each date of transfer that:
(a) it has requisite capacity and authority to execute this Agreement and any equity transfer agreement to which it is a party and
which is entered into for each transfer of Purchased Equity Interest hereunder (each a “Transfer Agreement”), and to perform its
obligations hereunder and thereunder; this Agreement and each Transfer Agreement to which it is a party, once executed, will constitute its
legal, valid and binding obligation, which is enforceable against it according the specific terms hereof and thereof;
(b) Neither the execution of this Agreement or any Transfer Agreement nor the performance of its obligations hereunder and
thereunder by Party B will (i) violate any relevant PRC laws, (ii) conflict with the articles of association or other organizational documents
of Party C; (iii) cause any violation of, or constitute any breach under, any contracts or instruments to which it is a party or by which it is
bound; (iv) lead to any violation of any restrictions in connection with the grant and/or continued effectiveness of any licenses or permits
issued to it; or (v) lead to the suspension or revocation of, or imposition of additional conditions to, any licenses or permits issued to it;
(c) Party C has good and merchantable title to all of its assets, on which Party C has, or will place, no Encumbrances of any form
whatsoever, including security interest, unless Party A’s written consent has been obtained;
(d) Party C has no outstanding debts, except for those (i) incurred in the ordinary course of business; and (ii) already disclosed to
Party A for which Party A’s written consent has been obtained;
(e) there are no ongoing, pending or threatened litigations, arbitrations or administrative proceedings in connection with the
Target Equity, Party C’s assets and Party C; and
(f) Party B has good and merchantable title to the equity interest held by it in Party C, on which Party B has, or will place, no
Encumbrances of any form whatsoever, except for the pledge created under the Equity Pledge Agreement.
4.
Breach of Contract
If any Party (“Defaulting Party”) breaches any provision of this Agreement, which causes damage to any of the other Parties (“Non-defaulting
Party”), the Non-defaulting Party may notify the Defaulting Party in writing and request it to immediately rectify and correct such breach; if the
Defaulting Party fails to take any action satisfactory to the Non-defaulting Party to rectify and correct its breach within fifteen (15) days upon the
issuance of such written notice by the Non-defaulting Party, the Non-defaulting Party may immediately take the actions provided in this
Agreement or take other remedies according to the laws.
5.
Effectiveness and Term
5.1 This Agreement shall come into effectiveness as of the date of its execution. The Parties hereby agree and confirm that the effect of the terms and
conditions of this Agreement shall retrospect to the day when Party B becomes a shareholder of Party C.
5.2 The term of this Agreement is ten (10) years unless this Agreement is terminated pursuant to relevant provisions herein.
5.3 This Agreement may be automatically extended for another ten (10) years upon its expiry, and may be extended for unlimited number of times
thereafter, unless Party A notifies Party B and Party C in writing of its disagreement with the extension. Neither Party B nor Party C may veto the
extension of the term of this Agreement.
6.
Termination
6.1 This Agreement shall remain valid unless Party A disagrees with the extension of the term hereof pursuant to Article 5.3 hereinabove.
6.2 At any time during the term of this Agreement and any extended term hereof, Party A may, at its own judgment and discretion, unconditionally
terminate this Agreement by issuing a written notice to Party B without assuming any liability. Neither Party B nor Party C is entitled to the right
of unilateral termination of this Agreement.
7.
Governing Law and Dispute Resolution
7.1 The formation, validity, interpretation, performance and termination of this Agreement and the amendment hereto as well as the resolution of any
disputes arising hereunder shall be governed by the PRC laws.
7.2 Any disputes arising from the interpretation and performance of this Agreement shall first be resolved through friendly consultation among the
Parties. In case no settlement can be reached through consultation within thirty (30) days after the request for consultation is made by any Party
with a written notice, any Party can submit such disputes to Shanghai International Economic and Trade Arbitration Commission for arbitration in
accordance with its then effective rules. The arbitration shall take place in Shanghai. The arbitration proceedings shall be conducted in Chinese.
The arbitration award shall be final and binding upon all the Parties.
7.3
If any dispute arises from the interpretation and performance of this Agreement or any dispute is under arbitration, the Parties shall continue to
perform their respective rights and obligations hereunder other than those in dispute.
8.
Taxes and Expenses
Party B shall bear any and all taxes, costs and expenses incurred by or imposed on the Parties under the PRC laws arising from the preparation and
execution of this Agreement and each Transfer Agreement and the consummation of the transaction contemplated hereunder and thereunder, unless
Party A agrees to bear all or part of such taxes, costs and expenses.
9.
Notices
Notices or other communications required to be given by any Party pursuant to this Agreement shall be written in Chinese or English and
delivered personally or sent by registered mail, postage prepaid mail, express delivery or facsimile transmission to the addresses of the other Parties set
forth below, or to other designated addresses notified by such other Parties to such Party from time to time, or the addresses of other persons designated
by such Party. A notice is deemed to be duly served: (a) if delivered personally, upon the delivery; (b) if sent by mail, on the tenth (10th) day after the
date when the air registered mail with postage prepaid has been sent out (as is shown on the postmark), or the fourth (4th) day after delivered to the
courier service agency; and (c) if sent by facsimile transmission, upon the receipt time as is shown on the transmission confirmation of relevant
documents.
If to Party A:
Attn:
Address:
Phone: ( )
Fax: ( )
If to Party B:
Address:
Phone: ( )
Fax: ( )
If to Party C:
Address:
Phone: ( )
Fax: ( )
10. Confidentiality
All Parties acknowledge and confirm that any oral or written materials exchanged by and between the Parties in connection with this Agreement
are confidential. All Parties shall keep secret of all such documents and not disclose any such documents to any third party without prior written consent
from other Parties, except for such information: (a) as are known or will be known by the public (except by disclosure of the receiving party without
authorization); (b) as are required to be disclosed in accordance with applicable laws or stock exchange rules or regulations; or (c) as are required to be
disclosed by any Party to its legal counsel or financial consultant for the purpose of the transaction of this Agreement, provided that such legal counsel
or financial consultant shall also be subject to the confidentiality obligation similar to that stated hereof. Any disclosure by employees or agencies
employed by any Party shall be deemed the disclosure of such Party and such Party shall assume the liabilities for its breach of contract pursuant to this
Agreement. This Article shall survive even if this Agreement is judged as void, cancelled, terminated or impractical for any reason whatsoever.
11. Further Warranties
The Parties agree to promptly execute such documents or take such further actions as are reasonably necessary or beneficial for performing the
provisions or achieving the purposes hereof.
12. Miscellaneous
12.1 Amendments, Modifications and Supplements
Any matters excluded in this Agreement shall be negotiated by the Parties. Any amendment and supplement to this Agreement and its exhibits
shall be made by the Parties in writing. The amendment and supplement duly executed by each Party with respect to this Agreement and its exhibits are
part of this Agreement and shall have the same legal effect as this Agreement.
12.2 Compliance with Laws and Regulations
Each of the Parties shall comply with, and shall ensure that its operations fully comply with all existing and publicly available laws and
regulations of the PRC.
12.3 Entire Agreement
The Parties confirm that this Agreement shall, upon its effectiveness, constitute the entire agreement and common understanding of the Parties
with respect to the contents herein and fully supersede all prior verbal and/or written agreements and understandings between the Parties with respect to
the contents herein. The exhibits attached hereto shall constitute a component of this Agreement and shall be equally binding as this Agreement.
12.4 Headings
The headings contained in this Agreement are for the convenience of reference only and shall not be used to interpret, explain or otherwise affect
the meaning of the provisions of this Agreement.
12.5 Severability
If any one or more provisions of this Agreement is identified or judged by a court of competent jurisdiction or arbitration authority as void, invalid
or unenforceable in any respect according to any laws or regulations, the validity, legality and enforceability of the other provisions hereof shall not be
affected or impaired in any way. The Parties shall cease performing such void, invalid or unenforceable provisions and revise those void, invalid or
unenforceable provisions only to the extent closest to the original intention thereof to recover its validity or enforceability for such specific facts and
circumstances.
12.6 Assignment
(1)
(2)
Neither Party B or Party C may assign any of their respective rights or obligations under this Agreement to any third party without prior
written consent from Party A. Party B and Party C hereby agree that Party A may assign its rights and obligations under this Agreement as
Party A may decide at its sole discretion, and such assignment shall only be subject to a written notice sent to Party B and Party C, without
subject to their consent. When and as requested by Party A, Party B and Party C shall execute with the assignee a supplementary
agreement or an agreement substantially the same as this Agreement.
Party B hereby agrees and confirms that (i) if Party B has died or lost or been limited from his/her full capacity for civil conducts, his/her
rights and obligations hereunder will be immediately transferred to and succeeded by Party A’s Designated Person, or to Party A for its
disposal at its sole discretion, including but not limited to the cases under which Party A or Party A’s Designated Person will be transferred
and thus acquire the equity interest held by Party B in Party C; and (ii) Party A can transfer its rights and obligations hereunder to its
designated person as needed at any time by only providing a written notice to Party B’s successor or guardian and no consent from Party
B’s successor or guardian is required. Upon the request of Party A, Party B’s successor shall execute with Party A a supplement or an
agreement substantially the same as this Agreement.
12.7 Successors
This Agreement shall be effective and binding upon all the Parties hereto and their respective inheritors, successors and assigns.
12.8 Survival
Any obligations that are incurred or become due arising from this Agreement by the expiry or early termination of this Agreement shall survive
the expiry or termination of this Agreement.
12.9 Waiver
Any Party’s failure to exercise the rights under this Agreement in time shall not be deemed as its waiver of such rights and would not affect its
future exercise of such rights.
12.10 Counterparts
This Agreement is executed with three (3) originals, with one Party holding one (1) original; each counterpart shall be equally binding.
IN WITNESS WHEREOF, this Agreement has been duly executed by the Parties or their respective authorized representatives on the date first
above written.
[The remainder of this page is intentionally left blank]
Party A:
[This page is execution page]
Signature:
Authorized representative:
(stamp)
Party B:
Signature:
Party C:
Signature:
Authorized representative:
(stamp)
APPENDIX 1
This Equity Transfer Agreement (“Agreement”) is entered into in , the People’s Republic of China (“PRC”) by and between:
Equity Transfer Agreement
Transferor:
Transferee:
NOW, the Parties agree as follows concerning the equity interest transfer:
1.
2.
3.
4.
5.
The Transferor agrees to transfer to the Transferee % of equity interest of held by the Transferor,
and the Transferee agrees to accept the said equity interest.
After the closing of equity interest transfer, the Transferor shall not have any rights and obligations as a shareholder with regard to the
transferred shares, and the Transferee shall have such rights and obligations as shareholder of .
Any matter not covered by this Agreement may be determined by the Parties by way of signing supplementary agreements.
This Agreement shall be effective from the date of execution by the Parties.
This Agreement is executed in four (4) originals, with each party holding one (1) original. The remaining originals are made for the
purpose of going through change registration at the Administration for Industry and Commerce.
Transferor
Transferee
Signature:
Authorized Signature:
Date:
Date:
The following schedule sets forth other major similar agreements the registrant entered into with each of its consolidated affiliated Chinese
entities. Other than the information set forth below, there is no material difference between such other agreements and this exhibit.
Schedule A
VIE
Shanghai Ctrip Commerce Co., Ltd.
Chengdu Ctrip Travel Agency Co., Ltd.
Executing Parties
Party A: Ctrip Travel Network Technology (Shanghai) Co., Ltd.
Party B: Maohua Sun
Party C: Shanghai Ctrip Commerce Co., Ltd.
Party A: Ctrip Travel Network Technology (Shanghai) Co., Ltd.
Party B: Bo Sun
Party C: Shanghai Ctrip Commerce Co., Ltd.
Party A: Ctrip Travel Network Technology (Shanghai) Co., Ltd.
Party B: Fan Min
Party C: Chengdu Ctrip Travel Agency Co., Ltd.
Party A: Ctrip Travel Network Technology (Shanghai) Co., Ltd.
Party B: Shi Qi
Party C: Chengdu Ctrip Travel Agency Co., Ltd.
Execution Date
December 14, 2015
(as amended on
April 9, 2019)
November 8, 2021
December 14, 2015
December 14, 2015
This Equity Pledge Agreement (this “Agreement”) is entered into in Shanghai, the People’s Republic of China (“PRC”) as
EQUITY PLEDGE AGREEMENT
Exhibit 4.9
of by and between the following parties:
(1)
Pledgee:
Address: ; and
(2)
Pledgor:
PRC Identification Card No.:
Address: ;
(In this Agreement, Pledgee and Pledgor are hereinafter collectively referred to as the “Parties” and individually, as a “Party.”)
WHEREAS
(1)
The Pledgor is a PRC citizen, who owns % of the equity interests in (“Ctrip Commerce”) for an amount of
contribution of RMB .
(2) Ctrip Commerce is a limited liability company duly incorporated and validly existing under the PRC laws.
(3)
(4)
(5)
(6)
The Pledgee is a wholly foreign owned enterprise duly incorporated and validly existing under the PRC laws.
The Pledgee and Ctrip Commerce entered a Technical Consulting and Services Agreement as of (the “Services
Agreement”).
The Pledgee and the Pledgor entered into a Loan Agreement as of (the “Loan Agreement”).
The Pledgee, the Pledgor and Ctrip Commerce entered into an Exclusive Call Option Agreement as of (the “Exclusive Call
Option Agreement,” together with the Services Agreement and the Loan Agreement, the “Principal Agreements”).
(7)
In order to secure the performance of the obligations (including without limitation, the normal payment of consulting and service fees and the
Pledgor’s repayment obligation) under the Principal Agreements by the Pledgor and Ctrip Commerce, the Pledgor is willing to unconditionally
and irrevocably pledge all its % equity interest held in Ctrip Commerce to the Pledgee as a security.
NOW, THEREFORE, in order to perform the terms and provisions of the Principal Agreements, the Pledgor and the Pledgee hereby agree as follows
upon mutual consultation:
1.
Pledge
1.1 The Pledgor agrees to pledge all its % equity interest in Ctrip Commerce to the Pledgee as a security on the performance of all the
obligations under the Principal Agreements by the Pledgor and Ctrip Commerce as well as on the entire compensation liability arising from the
invalidity, cancellation or early termination of the Principal Agreements.
1.2
Pledge Right hereunder refers to the rights owned by the Pledgee, who shall be entitled to a priority to be compensated by the proceeds from
conversion into money, auction or sale of the equity interest pledged by the Pledgor to the Pledgee.
1.3 The equity interest pledged hereunder is the % equity interest held by the Pledgor in Ctrip Commerce (the “Pledged Equity”) and all the
rights and interests associated therewith. The details of the Pledged Equity are listed as follows:
Pledgee:
Pledgor:
Company where the Pledged Equity is in:
Contribution corresponding to the Pledged Equity: RMB
2.
Scope of Pledge
2.1 The pledge under this Agreement include the performance of all the obligations under the Principal Agreements by the Pledgor and Ctrip
Commerce as well as on the entire compensation liability arising from the invalidity, cancellation or early termination of the Principal
Agreements, including, without limitation, all amounts payable, outstanding debts, obligations and liabilities under the Principal Agreements, any
fees and expenses incurred by the Pledgee for exercising its rights and the Pledge Right and the performance of the Principal Agreements. For the
avoidance of doubt, the scope of the Pledge shall not be limited by the amount of the capital contribution made by the shareholders of Ctrip
Commerce.
2.2 The effect of the security under this Agreement shall not be affected due to any amendment or modification to the Principal Agreements, and the
security hereunder shall remain valid on the obligations of the Pledgor and Ctrip Commerce under any Principal Agreements so amended or
modified. If any of the Principal Agreements becomes invalid or is canceled or terminated for any reason whatsoever, the Pledgee has the right to
immediately exercise the Pledge Right pursuant to Article 8 of this Agreement.
3.
Creation and Term of Pledge
3.1 The pledge under this Agreement shall be registered at Ctrip Commerce’s shareholder register upon the date hereof.
3.2 The Pledge Right hereunder shall be created as of the date when the equity pledge is registered at the competent administration for industry and
commerce (AIC) of Ctrip Commerce.
3.3 The term of the Pledge Right hereunder shall commence from its creation until the second (2nd) anniversary of the date when all obligations under
the Principal Agreements have been completed.
3.4 With the prior consent of the Pledgee, the Pledgor may increase its capital contribution to Ctrip Commerce, or transfer or acquire the equity
interests in Ctrip Commerce; provided, however, that any such capital contribution by the Pledgor to Ctrip Commerce, or any such shareholding
change of the Pledgor shall be subject to this Agreement. Ctrip Commerce shall immediately amend its shareholder register and file the change
registration with respect to the equity interest and equity pledge to the AIC within fifteen (15) working days upon the date when such change
occurs.
3.5 Within the pledge term, if the Pledgor or Ctrip Commerce fails to perform any of the obligations under or arising from the Principal Agreements,
the Pledgee has the right to exercise the Pledge Right in accordance with Article 8 of this Agreement.
4.
Custody of Pledge Certificate
4.1 The Pledgor shall deliver to the custody of the Pledgee the certificate of its capital contribution to Ctrip Commerce and the shareholder register of
Ctrip Commerce within one (1) week after the pledge is recorded at Ctrip Commerce’s shareholder register as required in Article 3; the Pledgee
shall have the duty to well keep the pledge documents so received.
4.2
If the pledge hereunder is released pursuant to this Agreement, the Pledgee shall return the pledge registration certificate to the Pledgor within five
(5) working days after the pledge is released, and provide necessary assistance to the Pledgor over the course of pledge release registration
formalities.
4.3 The Pledgee shall have the right to collect all interests or beneficial rights, including dividends, accrued on the Pledged Equity.
5.
Pledgor’s Representations and Warranties
5.1 The Pledgor is the sole legal owner of the Pledged Equity.
5.2 There should be no intervention from any other party at any time when the Pledgee exercises its rights as pledgee pursuant to this Agreement.
5.3 The Pledgee shall have the right to exercise or transfer the Pledge Right in any manners provided herein.
5.4 The Pledgor does not set up any other pledge or other encumbrances on the equity interest except those set up for the benefit of the Pledgee.
5.5 The pledgee shall ensure that Ctrip Commerce’s shareholders’ meeting has adopted a resolution to approve the pledge under this Agreement.
5.6 This Agreement, once effective, constitutes a lawful, effective and binding obligation for the Pledgor.
5.7 The pledge created by the Pledgor on the Pledged Equity pursuant to this Agreement will not violate the relevant stipulations of the laws,
regulations of the State and government policies, nor will it violate any contracts or agreements entered into by and between the Pledgor and any
third party, or any commitments made by the Pledgor to any third party.
5.8 All documents and materials in relation to this Agreement provided by the Pledgor to the Pledgee are true, accurate and complete.
6.
Pledgor’s Commitments
6.1 Throughout the existence of this Agreement, the Pledgor commits to and for the benefit of the Pledgee that the Pledgor will:
(1)
(2)
(3)
(4)
ensure that the Pledge Right hereunder is registered at the competent AIC;
not transfer or assign the Pledged Equity, or create or allow to exist any encumbrance (including pledge) which may affect the rights and
benefits of the Pledgee without prior written consent of the Pledgee;
comply with and implement all the relevant laws and regulations with respect to the pledge of rights; present to the Pledgee the notices,
orders or suggestions issued or formulated by the competent authority with respect to the Pledge within five (5) days upon receiving such
notices, orders or suggestions, and act as required by such notices, orders or suggestions, or raise objection or statement to any of the
foregoing at the reasonable request of or upon the consent of the Pledgee; and
promptly notify the Pledgee of any events or notices received which may affect the Pledgor’s rights in all or any part of the Pledged Equity,
and any events or notices received which may change or affect any of the Pledgor’s warranties and obligations under this Agreement.
6.2 The Pledgor agrees that the Pledgee’s acquisition of the Pledge Right and exercise of its right to the pledge pursuant to this Agreement shall not be
suspended or impaired by the Pledgor or any of its inheritors, successors, assigns, or any person authorized by the Pledgor or any such other
person by way of any legal proceedings.
6.3 The Pledgor undertakes to the Pledgee that in order to protect or perfect the security hereunder for the creditors’ rights and obligations under the
Principal Agreements, the Pledgor will (i) execute in good faith and cause other pledge-concerned parties to execute all title certificates and
covenants, and/or act and cause other pledge-concerned parties to act as required by the Pledgee, (ii) facilitate the Pledgee to exercise the rights
and authority empowered on the Pledgee by this Agreement, (iii) execute all documents in relation to the equity change (if applicable and
necessary) with the Pledgee or its designated person (whether natural or legal), and (iv) provide the Pledgee with such pledge-related notices,
orders and decisions as is considered necessary by the Pledgee within a reasonable period of time.
6.4 The Pledgor undertakes to the Pledgee to comply with and perform, for the benefit of the Pledgee, all the warranties, commitments, covenants,
representations, conditions and obligations under this Agreement and the Principal Agreements. The Pledgor shall indemnify the Pledgee for all
the losses suffered by the Pledgee resulting from the Pledgor’s inability to comply with or failure to perform or fully perform such warranties,
commitments, covenants, representations, conditions and obligations under this Agreement and the Principal Agreements.
7.
Events of Default
7.1 Any of the following events shall be regarded as an event of default:
(1)
(2)
(3)
(4)
Any of the representations or warranties made by the Pledgor under Articles 5 hereof is materially misleading or wrong, and/or the Pledgor
breaches any of the warranties contained in Article 5 hereof;
The Pledgor breaches any of the commitments contained in Article 6 hereof;
The Pledgor or Ctrip Commerce breaches any provision under this Agreement or the Principal Agreements, or fails to perform its
obligations hereunder or thereunder;
Any provision or obligation of the Pledgor or Ctrip Commerce under this Agreement or the Principal Agreements is deemed as illegal,
invalid, void or unenforceable;
(5)
The Pledgor waives or transfers the Pledged Equity, or creates any encumbrances thereupon, without written consent from the Pledgee;
(6)
(7)
(8)
(9)
(10)
(11)
Any of the Pledgor’s external loans, guarantees, warranties, indemnities, covenants or other repayment liabilities (i) is required to be repaid
or performed prior to the scheduled date due to a breach; or (ii) is due but unable to be repaid or performed as scheduled and thereby cause
the Pledgee to believe that the Pledgor’s capability to perform the obligations hereunder or under the Principle Agreements has been
affected;
The Pledgor is incapable of repaying the general obligation or other liabilities;
The promulgation of relevant laws renders, or any applicable law deems any provision under this Agreement or the Principle Agreements
as illegal, or deprives the Pledgor of its capability to continue to perform its obligations under this Agreement or the Principle Agreements;
Any government consents, permits, approvals or authorizations, based on which this Agreement or the Principle Agreements is deemed
enforceable, legitimate and valid, are revoked, terminated, invalidated or materially revised;
The property of the Pledgor suffers adverse change, which causes the Pledgee to believe that the capability of the Pledgor to perform the
obligations hereunder or under the Principle Agreements has been affected;
The Pledgor breaches this Agreement or the Principle Agreements by an act and/or omission in violation of the provisions of this
Agreement; or
(12) Other circumstances under which the Pledgee may not dispose of its Pledge Right under relevant laws.
7.2 The Pledgor shall immediately notify the Pledgee in writing once it is aware or discovers that any of the events mentioned in Article 7.1
hereinabove or any event that may result in any of such events has occurred.
7.3 Unless any of the events of default listed in Article 7.1 hereinabove has been fully resolved to the Pledgee’s satisfaction, the Pledgee may, at the
occurrence of such event of default or any time thereafter, send a written notice of default to the Pledgor, requiring the Pledgor or Ctrip Commerce
to immediately perform its obligations under the Principal Agreements or requiring its exercise of the Pledge Right pursuant to Article 8 hereof.
8.
Exercise of the Pledge Right
8.1 The Pledgor shall not transfer or assign the Pledged Equity without written approval from the Pledgee until all the obligations under the Principal
Agreements have been fully performed.
8.2
8.3
In case an event of default listed in Article 7 does occur, the Pledgee shall give a notice of default to the Pledgor when exercising its Pledge Right.
Subject to Article 7.3, the Pledgee may dispose of the Pledge Right either at the same time when the notice of default is sent pursuant to Article
7.3 or at any time thereafter.
8.4 The Pledgee has the right to convert the value of all or part of the Pledged Equity hereunder into money in compliance with legal procedures, or
has the priority to be compensated by the proceeds generated from auction or sale of such equity interests, until the obligations under the Principal
Agreement have been fully performed. If the Pledgee decides to exercise the Pledge Right, the Pledgor undertakes to transfer all its shareholder
rights to the Pledgee for its exercise.
8.5 The Pledgor shall not hinder the Pledgee from exercising the Pledge Right in accordance with this Agreement and shall instead give necessary and
positive assistance so that the Pledgee can realize its Pledge Right.
9.
Assignment
9.1 The Pledgor shall not donate or transfer its rights and obligations hereunder without prior consent from the Pledgee. The Pledgor agrees that if
he/she dies or loses his/her full capacity for civil acts, his/her rights and obligations hereunder will be immediately transferred to and succeeded by
the Pledgee’s designated person, or the Pledged Equity will be transferred to the Pledgee for its disposal at its sole discretion, including but not
limited to the cases under which the Pledgee or its designated person will be transferred and thus acquire the Pledged Equity.
9.2 The Pledgee may transfer or assign any or all of its rights and obligations under the Principal Agreements to any person (whether natural or legal)
designated by it at any time to the extent permissible by the laws. In this case, the assignee shall enjoy the rights and undertake the obligations of
the Pledgee hereunder as if the assignee itself were a party hereto. When the Pledgee transfers or assigns its rights and obligations under the
Principal Agreements, the Pledgor shall, at the request of the Pledgee, execute all relevant agreements and/or documents with respect to such
transfer or assignment.
9.3 After the pledgee is changed due to the abovementioned transfer or assignment, the new parties to the pledge shall execute a new equity pledge
agreement, which shall be substantially consistent with this Agreement.
9.4 This Agreement shall be effective and binding upon both Parties and their respective successors, inheritors and assigns.
10. Effectiveness and Termination of the Agreement
10.1 This Agreement shall come into effectiveness as of the date of its execution. The Parties hereby agree and confirm that the effect of the terms and
conditions of this Agreement shall retrospect to the day when the Pledgor became a shareholder of Ctrip Commerce.
10.2 The Parties further confirm that the effectiveness and validity of this Agreement shall not be affected regardless of whether or not the pledge
hereunder is registered at the competent AIC.
10.3 This Agreement shall expire two (2) years after the Pledgor and Ctrip Commerce no longer undertake any obligations under or arising from the
Principal Agreements, and in this case, the Pledgee shall cancel or terminate this Agreement as soon as reasonably practicable.
10.4 The release of pledge shall also be recorded accordingly at the shareholder register of Ctrip Commerce, and the deregistration of the pledge shall
be completed at the competent AIC of Ctrip Commerce according to the relevant laws.
11. Formality Fees and Other Expenses
11.1 The Parties agree and confirm that the Pledgor shall bear any and all costs and actual expenses in relation to this Agreement, including without
limitation any and all legal costs, production costs, stamp tax and any other taxes, costs and expenses arising from the performance of this
Agreement by the Parties. If the Pledgee is required to pay the relevant taxes and expenses by the law, the Pledgor shall reimburse to the Pledgee
in full the taxes and fees that have been paid by the Pledgee, unless the Pledgee agrees to bear all or part of such taxes and fees.
11.2 If the Pledgor fails to pay any taxes or expenses payable by it hereunder, or the Pledgee is otherwise rendered to take any approaches or actions to
recover the amounts payable by the Pledgor, the Pledgor shall bear all costs arising therefrom, including without limitation, all kinds of taxes, fees,
formality fees, administration fees, litigation costs, attorney fees and various insurance costs, etc. arising from the disposal of the Pledge Right.
12. Force Majeure
12.1 An “Force Majeure Event” shall mean any event beyond the reasonable anticipation and control of a Party so affected, which are unavoidable even
if the affected Party takes a reasonable care, including but not limited to governmental acts, Act of God, fires, explosion, storms, floods,
earthquakes, tides, lightning or wars. However, any shortage of credits, funds or financing shall not be deemed as the events beyond reasonable
control of the affected Party. The affected Party shall forthwith inform the other Party of the details concerning the exemption of liabilities and the
steps that need to be taken to complete discharging such liabilities.
12.2 In the event that the performance of this Agreement is delayed or interrupted due to the said Force Majeure Event, the affected Party shall be
excused from any liability hereunder to the extent of the delayed or interrupted performance, provided, however, that the affected Party shall take
appropriate measures to minimize or eliminate the adverse impacts therefrom and strive to resume the performance of this Agreement so delayed
or interrupted. The Parties agree to use their best efforts to continue the performance of this Agreement once the said Force Majeure Event
disappears.
13. Governing Law and Dispute Resolution
13.1 The formation, validity, interpretation, performance and termination of this Agreement and the disputes resolution under this Agreement shall be
governed by the PRC laws.
13.2 Any disputes arising from the interpretation and performance of this Agreement shall first be resolved through friendly consultation among the
Parties. In case no settlement can be reached through consultation within thirty (30) days after the request for consultation is made by any Party
with a written notice, any Party can submit such disputes to Shanghai International Economic and Trade Arbitration Commission for arbitration in
accordance with its then effective rules. The arbitration shall take place in Shanghai. The arbitration proceedings shall be conducted in Chinese.
The arbitration award shall be final and binding upon both Parties.
13.3 If any dispute arises from the interpretation and performance of this Agreement or any dispute is under arbitration, the Parties shall continue to
perform their respective rights and obligations hereunder other than those in dispute.
14. Notices
Notices or other communications required to be given by any Party pursuant to this Agreement shall be written in Chinese or English and
delivered personally or sent by registered mail, postage prepaid mail, express delivery or facsimile transmission to the addresses of the other Parties set
forth below, or to other designated addresses notified by such other Parties to such Party from time to time, or the addresses of other persons designated
by such Party. A notice is deemed to be duly served: (a) if delivered personally, upon the delivery; (b) if sent by mail, on the tenth (10th) day after the
date when the air registered mail with postage prepaid has been sent out (as is shown on the postmark), or the fourth (4th) day after delivered to the
courier service agency; and (c) if sent by facsimile transmission, upon the receipt time as is shown on the transmission confirmation of relevant
documents.
If to Party A:
Attn:
Address:
Phone: ( )
Fax: ( )
If to Party B:
Address:
Phone: ( )
Fax: ( )
15. Miscellaneous
15.1 The headings contained in this Agreement are for the convenience of reference only and shall not be used to interpret, explain or otherwise affect
the meaning of the provisions of this Agreement.
15.2 The Parties agree to promptly execute such documents, or take such further actions, as are reasonably necessary or beneficial for performing the
provisions or achieving the purposes hereof.
15.3 The Parties confirm that this Agreement shall, upon its effectiveness, constitute the entire agreement and common understanding of the Parties
with respect to the contents herein and fully supersede all prior verbal and/or written agreements and understandings between the Parties with
respect to the contents herein.
15.4 If any one or more provisions of this Agreement is identified or judged by a court of competent jurisdiction or arbitration authority as void, invalid
or unenforceable in any respect according to any laws or regulations, the validity, legality and enforceability of the other provisions hereof shall
not be affected or impaired in any way. The Parties shall cease performing such void, invalid or unenforceable provisions and revise those void,
invalid or unenforceable provisions only to the extent closest to the original intention thereof to recover its validity or enforceability for such
specific facts and circumstances.
15.5 Any Party’s failure to exercise the rights under this Agreement in time shall not be deemed as its waiver of such rights and would not affect its
future exercise of such rights.
15.6 Any obligations that are incurred or become due arising from this Agreement by the expiry or early termination of this Agreement shall survive
the expiry or termination of this Agreement.
15.7 Any matters excluded in this Agreement shall be negotiated by the Parties. Any amendment and supplement to this Agreement and its exhibits
shall be made by the Parties in writing. The amendment and supplement duly executed by each Party with respect to this Agreement and its
exhibits are indispensable part of this Agreement and shall have the same legal effect as this Agreement.
15.8 Should the pledge registration authority require this Agreement to be re-signed or amended with respect to the pledge of the equity interest, the
Parties shall use their respective best efforts to guarantee the validity and enforceability of this Agreement in good faith. Such re-signed or
amended agreement shall be only used for the purposes of registration and filing at AIC and will not amend or supersede this Agreement. In case
of any conflicts between such agreement and this Agreement, this Agreement shall prevail.
15.9 This Agreement is written in Chinese and executed with three (3) originals with the same legal effect.
IN WITNESS WHEREOF, this Agreement has been duly executed by the Parties or their respective authorized representatives on the date first
above written.
[The remainder of this page is intentionally left blank]
[This page is execution page]
Pledgee:
Signature:
Authorized representative:
(stamp)
Pledgor:
Signature:
Schedule A
The following schedule sets forth other major similar agreements the registrant entered into with each of its consolidated affiliated Chinese
entities. Other than the information set forth below, there is no material difference between such other agreements and this exhibit.
VIE
Parties to the Pledge
Shanghai Ctrip Commerce Co., Ltd.
Chengdu Ctrip Travel Agency Co., Ltd.
Pledgee: Ctrip Travel Network Technology (Shanghai) Co., Ltd.
Pledgor: Maohua Sun
Pledgee: Ctrip Travel Network Technology (Shanghai) Co., Ltd.
Pledgor: Bo Sun
Pledgee: Ctrip Travel Network Technology (Shanghai) Co., Ltd.
Pledgor: Fan Min
Pledgee: Ctrip Travel Network Technology (Shanghai) Co., Ltd.
Pledgor: Shi Qi
Execution Date
December 14, 2015
(as amended on April 9,
2019)
November 8, 2021
December 14, 2015
December 14, 2015
POWER OF ATTORNEY
Exhibit 4.10
I, , citizen of the People’s Republic of China (the “PRC”), PRC Identification Card No: (the “Authorizer”), issue this
Power of Attorney (“POA”) on . This POA shall take effect as of the date of execution.
WHEREAS:
(1)
the Authorizer holds ___% equity interest in (the “Company”);
(2)
(3)
the Authorizer, (the “WFOE”) and the Company have entered into a series of contractual arrangements, including the
Loan Agreement, the Exclusive Call Option Agreement, the Equity Pledge Agreement and the Exclusive Technical Consulting and Services
Agreement; and
in order to guarantee the normal and continuous operations of the Company and the performance of the obligations under the abovementioned
agreements by the Company and the Authorizer, the WFOE has requested the Authorizer to appoint the WFOE as its attorney-in-fact, with full
power of substitution, to exercise any and all of the rights in respect of Authorizer’s equity interests in the Company and the Authorizer has agreed
to make such appointment.
In consideration of the above, the Authorizer hereby irrevocably nominates, appoints and constitutes the WFOE or its designated person as its
attorney—in-fact (“Attorney-in-Fact,” including legal and natural person) to exercise on the Authorizer’s behalf any and all rights that the Authorizer
has in respect of his/her equity interests in the Company conferred by relevant laws and regulations and the articles of association of the Company,
including without limitation, the following rights (collectively, “Shareholder Rights”):
(a)
to propose, call and attend the shareholders’ meetings of the Company;
(b)
to receive any notices about the holding of shareholders’ meetings and relevant procedures;
(c)
(d)
to execute and deliver any and all written resolutions as a shareholder in the name and on behalf of the Authorizer;
to vote by itself or by proxy on any matters discussed on shareholders’ meetings, including without limitation, the sale, transfer, mortgage,
pledge or disposal of any or all of the assets of the Company;
(e)
to sell, transfer, pledge or otherwise dispose of any or all of the equity interests held by the Authorizer in the Company;
1
(f)
(g)
(h)
to nominate, elect, designate, appoint or remove the directors, general manager, finance controller and other senior officers of the
Company;
to oversee the economic performance of the Company, to approve annual budgets of the Company or declare dividends, and to have full
access to the financial information of the Company at any time;
to file any shareholder lawsuits or take other legal actions against the Company’s directors or senior management members when such
directors or members are acting to the detriment of the interest of the Company or its shareholder(s); and
(i)
any other rights conferred on the shareholder by the articles of association of the Company or relevant laws and regulations.
The Authorizer further agrees and undertakes that:
(a)
(b)
(c)
(d)
the Authorizer hereby authorizes the Attorney-in-Fact to exercise the Shareholder Rights at its sole discretion without any need to obtain
any oral or written instructions from the Authorizer; and, without the WFOE’s prior written consent, the Authorizer shall not exercise any
of the Shareholder Rights;
the WFOE has the right to appoint, at its sole discretion, a substitute or substitutes to perform any or all of its rights of the Attorney-in-Fact
under this POA, and to revoke the appointment of such substitute or substitutes at its sole discretion;
if the Authorizer’s equity interest in the Company increases, whether by equity interest transfer or increase of the Company’s registered
capital, any such additional equity interests acquired by the Authorizer through equity transfer or the equity interests corresponding to the
increased part of the registered capital shall be automatically subject to this POA and the Attorney-in-Fact shall have the right to exercise
the Shareholder Rights with respect to such additional equity interests on behalf of the Authorizer; if any person acquires the Company’s
equity interests, whether by voluntary transfer, judicial sale, foreclosure sale or otherwise, any such equity interest in the Company so
transferred remains subject to this POA and the Attorney-in-Fact shall continue to have the right to exercise the Shareholder Rights with
respect to such equity interest in the Company so transferred.
for the avoidance of any doubt, if any equity transfer is contemplated under the Loan Agreement, the Exclusive Call Option Agreement
and the Equity Pledge Agreement (including any and all subsequent amendments and supplements thereto) entered into by the Authorizer
for the benefits of the WFOE or any of its affiliates, the Attorney-in-Fact shall, on behalf of the Authorizer, have the right to sign the equity
transfer agreement and other relevant agreements and to perform all the shareholders’ obligations under the Loan Agreement, the
Exclusive Call Option Agreement and the Equity Pledge Agreement. If required by the WFOE, the Authorizer shall sign any documents
and fix the common chops and/or seals thereupon and the Authorizer shall take any other action as necessary for purposes of
consummation of the aforesaid equity transfer. The Authorizer shall ensure that such equity transfer be consummated and cause any
transferee to sign a power of attorney with the WFOE substantially the same as this POA; and
2
(e)
WFOE may, at its sole discretion, request the Authorizer at any time with a written notice to execute a new power of attorney substantially
the same as this POA, authorizing the person designated by the WFOE as the Attorney-in-Fact to exercise any and all rights to which the
Authorizer is entitled by relevant laws and regulations and the Company’s articles of association with respect to the equity interest held by
the Authorizer in the Company.
This POA shall be duly executed by the Authorizer. This POA shall become effective as of the date of execution specified herein, and shall remain
effective as long as the Company exists. The Authorizer does not have rights to terminate or amend this POA or revoke the appointment of the
Attorney-in-Fact without prior written consent from the WFOE. This POA shall be equally binding upon the respective inheritors, successors and
assigns of the Parties.
[The remainder of this page is intentionally left blank.]
3
[This page is the execution page]
Authorizer:
Signature:
Name:
The following schedule sets forth other major similar agreements the registrant entered into with each of its consolidated affiliated Chinese
entities. Other than the information set forth below, there is no material difference between such other agreements and this exhibit.
Schedule A
VIE
Shanghai Ctrip Commerce Co., Ltd.
Chengdu Ctrip Travel Agency Co., Ltd.
Executing Parties
Execution Date
Maohua Sun
Bo Sun
December 14, 2015
November 8, 2021
Fan Min
Shi Qi
December 14, 2015
December 14, 2015
CONFIDENTIAL
Exhibit 4.32
EXECUTION VERSION
Dated 18 October 2021
TRIP.COM GROUP LIMITED
as Borrower
BANK OF CHINA LIMITED
THE HONGKONG AND SHANGHAI BANKING CORPORATION LIMITED
as Mandated Lead Arrangers and Bookrunners
CHINA CONSTRUCTION BANK (ASIA) CORPORATION LIMITED
CHINA EVERBRIGHT BANK COMPANY LIMITED SHANGHAI BRANCH
CHINA EVERBRIGHT BANK CO., LTD. HONG KONG BRANCH (A COMPANY INCORPORATED IN THE
PEOPLE’S REPUBLIC OF CHINA WITH LIMITED LIABILITY)
CHINA MERCHANTS BANK SHANGHAI BRANCH
AGRICULTURAL BANK OF CHINA SHANGHAI BRANCH CHANGNING SUB-BRANCH
BANK OF COMMUNICATIONS (HONG KONG) LIMITED (INCORPORATED IN HONG KONG WITH LIMITED
LIABILITY)
BANK OF COMMUNICATIONS CO., LTD. SHANGHAI MUNICIPAL BRANCH CHANGNING SUB-BRANCH
DBS BANK LTD. (INCORPORATED IN SINGAPORE WITH LIMITED LIABILITY)
INDUSTRIAL BANK CO., LTD. (A JOINT STOCK COMPANY INCORPORATED IN P.R.C. WITH LIMITED
LIABILITY) HONG KONG BRANCH
INDUSTRIAL BANK CORPORATION LIMITED SHANGHAI PUDONG SUB-BRANCH
SHANGHAI PUDONG DEVELOPMENT BANK CO., LTD JINGAN SUB-BRANCH
as Mandated Lead Arrangers
INDUSTRIAL AND COMMERCIAL BANK OF CHINA SHANGHAI CAO HE JING HI-TECH PARK BRANCH
CMB WING LUNG BANK LIMITED SHANGHAI BRANCH
CMB WING LUNG BANK LIMITED
NANYANG COMMERCIAL BANK, LIMITED
as Lead Arrangers
CHINA CITIC BANK CORPORATION LIMITED, SHANGHAI BRANCH
THE BANK OF EAST ASIA, LIMITED (東亞銀行有限公司)
CHINA MINSHENG BANKING CORP., LTD. HONG KONG BRANCH (A JOINT STOCK LIMITED COMPANY
INCORPORATED IN THE PEOPLE’S REPUBLIC OF CHINA)
HUA XIA BANK CO., LIMITED HONG KONG BRANCH (WHOSE HEAD OFFICE IS A JOINT-STOCK
COMPANY INCORPORATED IN THE PEOPLE’S REPUBLIC OF CHINA WITH LIMITED LIABILITY)
BANK OF HANGZHOU CO., LTD. SHANGHAI BRANCH
JPMORGAN CHASE BANK, N.A., ACTING THROUGH ITS HONG KONG BRANCH, A NATIONAL BANKING
ASSOCIATION ORGANISED UNDER THE LAWS OF UNITED STATES OF AMERICA WITH LIMITED
LIABILITY
as Arrangers
THE FINANCIAL INSTITUTIONS LISTED IN SCHEDULE 1 HERETO
as Original Lenders
and
BANK OF CHINA (HONG KONG) LIMITED
as Agent
FACILITY AGREEMENT
up to US$1,500,000,000 transferable Term Loan Facility
Contents
clause
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
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22
23
24
25
26
27
28
Definitions and Interpretation
The Facilities
Purpose
Conditions of Utilisation
Utilisation
Repayment
Prepayment and Cancellation
Interest
Interest Periods
Changes to the Calculation of Interest
Fees
FATCA
Increased Costs
Mitigation by the Lenders
Other Indemnities
Costs and Expenses
Representations
Information Undertakings
Financial Covenants
General Undertakings
Events of Default
Changes to the Lenders
Changes to the Borrower
Role of the Administrative Parties and the Reference Banks
Sharing among the Finance Parties
Payment Mechanics
Set-off
Notices
Page
1
16
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25
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26
28
29
30
31
31
34
37
39
44
46
51
51
59
60
62
63
29 Calculations and Certificates
30 Partial Invalidity
31 Remedies and Waivers
32 Amendments and Waivers
33 Confidential Information
34 Confidentiality of Funding Rates and Reference Bank Quotations
35 Counterparts
36 Governing Law
37 Enforcement
Schedule 1 Original Lenders
Schedule 2 Conditions Precedent
Schedule 3 Requests
Schedule 4 Form of Transfer Certificate
Schedule 5 Form of Assignment Agreement
Schedule 6 Form of Compliance Certificate
Schedule 7 Timetables
Schedule 8 Form of Incremental Facility Notice
Schedule 9 Banking (Exposure Limits) Rules
64
64
65
65
67
70
71
72
72
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81
THIS AGREEMENT is dated 18 October 2021 and made
BETWEEN:
(1)
(2)
(3)
(4)
(5)
(6)
(7)
TRIP.COM GROUP LIMITED, an exempted company with limited liability incorporated under the laws of the Cayman Islands with
registration number 97668 and its registered office at P.O. Box 309, Ugland House, South Church Street, George Town, Grand Cayman
KY1-1104, Cayman Islands and registered as a non-Hong Kong company under part 16 of the Companies Ordinance with registration number
F0029075 and dually listed on The Nasdaq Stock Market (the NDAQ) (Stock Code TCOM) and The Stock Exchange of Hong Kong Limited
(the HKEX) (Stock Code 9961) (the Borrower);
BANK OF CHINA LIMITED and THE HONGKONG AND SHANGHAI BANKING CORPORATION LIMITED as mandated lead
arrangers and bookrunners (in this capacity, whether acting individually or together, the Mandated Lead Arrangers and Bookrunners);
CHINA CONSTRUCTION BANK (ASIA) CORPORATION LIMITED, CHINA EVERBRIGHT BANK COMPANY LIMITED
SHANGHAI BRANCH, CHINA EVERBRIGHT BANK CO., LTD. HONG KONG BRANCH (A COMPANY INCORPORATED IN
THE PEOPLE’S REPUBLIC OF CHINA WITH LIMITED LIABILITY), CHINA MERCHANTS BANK SHANGHAI BRANCH,
AGRICULTURAL BANK OF CHINA SHANGHAI BRANCH CHANGNING SUB-BRANCH, BANK OF COMMUNICATIONS
(HONG KONG) LIMITED (INCORPORATED IN HONG KONG WITH LIMITED LIABILITY), BANK OF COMMUNICATIONS
CO., LTD. SHANGHAI MUNICIPAL BRANCH CHANGNING SUB-BRANCH, DBS BANK LTD. (INCORPORATED IN
SINGAPORE WITH LIMITED LIABILITY), INDUSTRIAL BANK CO., LTD. (A JOINT STOCK COMPANY INCORPORATED IN
P.R.C. WITH LIMITED LIABILITY), HONG KONG BRANCH, INDUSTRIAL BANK CORPORATION LIMITED SHANGHAI
PUDONG SUB-BRANCH and SHANGHAI PUDONG DEVELOPMENT BANK CO., LTD JINGAN SUB-BRANCH as mandated lead
arrangers (in this capacity, whether acting individually or together, the Mandated Lead Arrangers);
INDUSTRIAL AND COMMERCIAL BANK OF CHINA SHANGHAI CAO HE JING HI-TECH PARK BRANCH, CMB WING
LUNG BANK LIMITED SHANGHAI BRANCH, CMB WING LUNG BANK LIMITED and NANYANG COMMERCIAL BANK,
LIMITED as lead arrangers (in this capacity, whether acting individually or together, the Lead Arrangers);
CHINA CITIC BANK CORPORATION LIMITED, SHANGHAI BRANCH, THE BANK OF EAST ASIA, LIMITED (東亞銀行有限公
司), CHINA MINSHENG BANKING CORP., LTD. HONG KONG BRANCH (A JOINT STOCK LIMITED COMPANY
INCORPORATED IN THE PEOPLE’S REPUBLIC OF CHINA), HUA XIA BANK CO., LIMITED HONG KONG BRANCH
(WHOSE HEAD OFFICE IS A JOINT-STOCK COMPANY INCORPORATED IN THE PEOPLE’S REPUBLIC OF CHINA WITH
LIMITED LIABILITY), BANK OF HANGZHOU CO., LTD. SHANGHAI BRANCH and JPMORGAN CHASE BANK, N.A., ACTING
THROUGH ITS HONG KONG BRANCH, A NATIONAL BANKING ASSOCIATION ORGANISED UNDER THE LAWS OF
UNITED STATES OF AMERICA WITH LIMITED LIABILITY as arrangers (in this capacity, whether acting individually or together, the
Arrangers);
THE FINANCIAL INSTITUTIONS listed in Schedule 1 (Original Lenders) as lenders (the Original Lenders); and
BANK OF CHINA (HONG KONG) LIMITED as agent of the Finance Parties (other than itself) (the Agent).
IT IS AGREED as follows:
1
Definitions and Interpretation
1.1
Definitions
In this Agreement:
Administrative Party means each of the Agent, the Mandated Lead Arrangers and Bookrunners, the Mandated Lead Arrangers, the Lead
Arrangers and the Arrangers.
1
Affiliate means, in relation to any person, a Subsidiary of that person or a Holding Company of that person or any other Subsidiary of that
Holding Company.
Anti-Bribery and Corruption Laws means all laws, rules, and regulations issued, administered or enforced by the United States of America,
the United Kingdom, the European Union or any of its member states, or any other country or governmental agency, which are applicable to the
Borrower or any other member of the Group from time to time concerning or relating to bribery or corruption, including:
(a)
(b)
the United States Foreign Corrupt Practices Act 1977; and
the United Kingdom Bribery Act 2010.
APLMA means the Asia Pacific Loan Market Association Limited.
Assignment Agreement means an agreement substantially in the form set out in Schedule 5 (Form of Assignment Agreement) or any other form
agreed between the relevant assignor, assignee and the Agent.
Authorisation means:
(a)
(b)
an authorisation, consent, approval, resolution, licence, exemption, filing, notarisation, lodgement or registration; or
in relation to anything which will be fully or partly prohibited or restricted by law if a Governmental Agency intervenes or acts in any
way within a specified period after lodgement, filing, registration or notification, the expiry of that period without intervention or action.
Availability Period means:
(a)
(b)
in relation to the Original Facility, the period from and including the date of this Agreement to and including the date falling six Months
from the date of this Agreement; and
in relation to the Incremental Facility, the period from and including the Incremental Facility Establishment Date to and including the
date falling six Months from the Incremental Facility Establishment Date.
Available Commitment means, in relation to a Facility, a Lender’s Commitment minus:
(a)
(b)
the amount of its participation in any outstanding Loans under that Facility; and
in relation to any proposed Utilisation, the amount of its participation in any Loans that are due to be made under that Facility on or
before the proposed Utilisation Date.
Available Facility means, in relation to a Facility, the aggregate for the time being of each Lender’s Available Commitment in respect of that
Facility.
Bail-In Action means the exercise of any Write-down and Conversion Powers.
Bail-In Legislation means in relation to an EEA Member Country which has implemented, or which at any time implements, Article 55 of
Directive 2014/59/EU establishing a framework for the recovery and resolution of credit institutions and investment firms, the relevant
implementing law or regulation as described in the EU Bail-In Legislation Schedule from time to time; and in relation to the United Kingdom,
the UK Bail-In Legislation.
Benchmark Replacement Adjustment means, with respect to the alternate benchmark rate for each applicable Interest Period, the spread
adjustment, or method for calculating or determining such spread adjustment (which may be a positive or negative value or zero), for the purpose
of adjusting the alternate benchmark rate to make it comparable to USD LIBOR giving due consideration to:
(a)
any selection or recommendation of a spread adjustment, or method for calculating or determining such spread adjustment, for the
replacement of USD LIBOR with the alternate benchmark rate by a Relevant Nominating Body; or
2
(b)
any evolving or then-prevailing market convention for determining a spread adjustment, or method for calculating or determining a
spread adjustment, for the replacement of USD LIBOR with the alternate benchmark rate.
Break Costs means the amount (if any) by which:
(a)
the interest (excluding Margin) which a Lender should have received for the period from the date of receipt of all or any part of its
participation in a Loan or Unpaid Sum to the last day of the current Interest Period in respect of that Loan or Unpaid Sum, had the
principal amount or Unpaid Sum received been paid on the last day of that Interest Period;
exceeds:
(b)
the amount which that Lender would be able to obtain by placing an amount equal to the principal amount or Unpaid Sum received by it
on deposit with a leading bank for a period starting on the Business Day following receipt or recovery and ending on the last day of the
current Interest Period.
Business Day means a day (other than a Saturday or Sunday) on which banks are open for general business in Hong Kong, Beijing and:
(a)
(b)
(in relation to LIBOR fixing) London; and
(in relation any payment or purchase of USD) New York.
Code means the US Internal Revenue Code of 1986.
Change of Control has the meaning given to it in clause 7.2 (Change of Control).
Co-founders means:
(a)
(b)
(c)
(d)
James Jianzhang Liang;
Min Fan;
Neil Nanpeng Shen; and
Qi Ji.
Commitment means an Original Facility Commitment or an Incremental Facility Commitment.
Compliance Certificate means a certificate delivered pursuant to clause 18.2 (Compliance Certificate) substantially in the form set out in
Schedule 6 (Form of Compliance Certificate).
Confidential Information means all information relating to the Borrower, the Group, the Finance Documents or a Facility of which a Finance
Party becomes aware in its capacity as, or for the purpose of becoming, a Finance Party or which is received by a Finance Party in relation to, or
for the purpose of becoming a Finance Party under, the Finance Documents or the Facilities from either:
(a)
(b)
any member of the Group or any of its advisers; or
another Finance Party, if the information was obtained by that Finance Party directly or indirectly from any member of the Group or any
of its advisers,
3
in whatever form, and includes information given orally and any document, electronic file or any other way of representing or recording
information which contains or is derived or copied from such information but excludes:
(i)
information that:
(A)
(B)
(C)
is or becomes public information other than as a direct or indirect result of any breach by that Finance Party of clause
33 (Confidential Information);
is identified in writing at the time of delivery as non-confidential by any member of the Group or any of its advisers; or
is known by that Finance Party before the date the information is disclosed to it in accordance with paragraph (a) or (b)
above or is lawfully obtained by that Finance Party after that date, from a source which is, as far as that Finance Party
is aware, unconnected with the Group and which, in either case, as far as that Finance Party is aware, has not been
obtained in breach of, and is not otherwise subject to, any obligation of confidentiality; and
(ii)
any Funding Rate or Reference Bank Quotation.
Confidentiality Undertaking means a confidentiality undertaking substantially in a recommended form of the APLMA or in any other form
agreed between the Borrower and the Agent.
Consolidated Total Assets has the meaning given to that term in clause 19.1 (Financial definitions).
Current Interest Period has the meaning given to it in clause 9.3(b) (Consolidation of Loans)
Default means an Event of Default or any event or circumstance specified in clause 21 (Events of Default) which would (with the expiry of a
grace period, the giving of notice, the making of any determination under the Finance Documents or any combination of any of the foregoing) be
an Event of Default.
Disruption Event means either or both of:
(a)
(b)
a material disruption to those payment or communications systems or to those financial markets which are, in each case, required to
operate in order for payments to be made in connection with a Facility (or otherwise in order for the transactions contemplated by the
Finance Documents to be carried out) which disruption is not caused by, and is beyond the control of, any of the Parties; and
the occurrence of any other event which results in a disruption (of a technical or systems-related nature) to the treasury or payments
operations of a Party preventing that, or any other Party:
(i)
(ii)
from performing its payment obligations under the Finance Documents; or
from communicating with other Parties in accordance with the terms of the Finance Documents,
and which (in either such case) is not caused by, and is beyond the control of, the Party whose operations are disrupted.
EEA Member Country means any member state of the European Union, Iceland, Liechtenstein and Norway.
Environmental Claim means any claim, proceeding or investigation by any person in respect of any Environmental Law.
Environmental Law means any applicable law in any jurisdiction in which any member of the Group conducts business which relates to the
pollution or protection of the environment or harm to or the protection of human health or the health of animals or plants.
Environmental Permits means any Authorisation and the filing of any notification, report or assessment required under any Environmental Law
for the operation of the business of any member of the Group conducted on or from the properties owned or used by the relevant member of the
Group.
4
EU Bail-In Legislation Schedule means the document described as such and published by the Loan Market Association (or any successor
person) from time to time.
Event of Default means any event or circumstance specified as such in clause 21 (Events of Default).
Existing BOC Facility means the EUR980,000,000 term loan agreement dated 8 June 2017 and entered into between, amongst others, the
Borrower (previously known as Ctrip.com International, Ltd.) as borrower, Bank of China Limited as sole mandated lead arranger, Industrial and
Commercial Bank of China, Shanghai Branch and Shanghai Pudong Development Bank, Shanghai Branch as joint lead arrangers, Bank of China
Limited, Shanghai Branch as agent, Bank of China Limited, Shanghai Changning Sub-branch as guarantee agent.
Existing 2019 Facility means the USD2,000,000,000 term loan facility agreement dated 5 July 2019 (with an incremental facility of up to
USD500,000,000) and entered into between, amongst others, the Borrower (previously known as Ctrip.com International, Ltd.) as borrower, The
Hongkong and Shanghai Banking Corporation Limited, Bank of China Limited, Bank of Communications Co., Ltd, Hong Kong Branch, The
Bank of East Asia, Limited, China Construction Bank (Asia) Corporation Limited and The Korea Development Bank as mandated lead arrangers
and bookrunners.
Facility means an Original Facility or the Incremental Facility.
Facility Office means the office or offices notified by a Lender to the Agent in writing on or before the date it becomes a Lender (or, following
that date, by not less than five Business Days’ written notice) as the office or offices through which it will perform its obligations under this
Agreement.
FATCA means:
(a)
(b)
(c)
sections 1471 to 1474 of the Code or any associated regulations;
any treaty, law or regulation of any other jurisdiction, or relating to an intergovernmental agreement between the US and any other
jurisdiction, which (in either case) facilitates the implementation of any law or regulation referred to in paragraph (a) above; or
any agreement pursuant to the implementation of any treaty, law or regulation referred to in paragraph (a) or (b) above with the US
Internal Revenue Service, the US government or any governmental or taxation authority in any other jurisdiction.
FATCA Application Date means:
(a)
(b)
in relation to a “withholdable payment” described in section 1473(1)(A)(i) of the Code (which relates to payments of interest and
certain other payments from sources within the US), 1 July 2014; or
in relation to a “passthru payment” described in section 1471(d)(7) of the Code not falling within paragraph (a) above, the first date
from which such payment may become subject to a deduction or withholding required by FATCA.
FATCA Deduction means a deduction or withholding from a payment under a Finance Document required by FATCA.
FATCA Exempt Party means a Party that is entitled to receive payments free from any FATCA Deduction.
Fee Letter means any letter or letters referring to this Agreement between one or more Administrative Parties and the Borrower setting out any
of the fees referred to in clause 11 (Fees).
Final Repayment Date means the date falling 36 Months from the first Utilisation Date.
Finance Document means:
(a)
(b)
this Agreement;
any Fee Letter;
5
(c)
(d)
(e)
any Utilisation Request;
the Incremental Facility Notice; and
any other document designated as such by the Agent and the Borrower.
Finance Party means the Agent, a Mandated Lead Arranger and Bookrunner or a Lender.
Financial Indebtedness means any indebtedness for or in respect of:
(a)
(b)
(c)
(d)
(e)
(f)
(g)
(h)
(i)
moneys borrowed;
any amount raised by acceptance under any acceptance credit facility or dematerialised equivalent;
any amount raised pursuant to any note purchase facility or the issue of bonds, notes, debentures, loan stock or any similar instrument;
the amount of any liability in respect of any lease or hire purchase contract which would, in accordance with GAAP, be treated as a
finance or capital lease;
receivables sold or discounted (other than any receivables to the extent they are sold on a non-recourse basis);
any amount raised under any other transaction (including any forward sale or purchase agreement) of a type not referred to in any other
paragraph of this definition having the commercial effect of a borrowing;
any derivative transaction entered into in connection with protection against or benefit from fluctuation in any rate or price (and, when
calculating the value of any derivative transaction, only the marked to market value (or, if any actual amount is due as a result of the
termination or close-out of that derivative transaction, that amount) shall be taken into account);
any counter-indemnity obligation in respect of a guarantee, indemnity, bond, standby or documentary letter of credit or any other
instrument issued by a bank or financial institution; and
the amount of any liability in respect of any guarantee or indemnity for any of the items referred to in paragraphs (a) to (h) above.
Financial Stability Board means the Financial Stability Board established by Charter dated 25 September 2009 and endorsed by the Heads of
State and Government of the G20.
Funding Rate means any individual rate notified by a Lender to the Agent pursuant to clause 10.4(a)(ii) (Cost of funds).
GAAP means generally accepted accounting principles in the US, including IFRS.
Governmental Agency means any government or any governmental agency, semi-governmental or judicial entity or authority (including any
stock exchange or any self-regulatory organisation established under statute).
Group means the Borrower and its Subsidiaries from time to time.
Group Structure Chart means:
(a)
(b)
the structure chart for the Group disclosed in Form 20-F submitted by or on behalf of the Borrower to the US Securities and Exchange
Commission for the year 2020, and which is to be delivered under clause 4.1 (Initial conditions precedent); or
(as the case may be) such updated structure chart delivered under clause 18.2 (Compliance Certificate), which is (if applicable)
disclosed in Form 20-F submitted by or on behalf of the Borrower to the US Securities and Exchange Commission for subsequent years.
6
Holding Company means, in relation to a person, any other person in respect of which it is a Subsidiary.
IFRS means international accounting standards within the meaning of the IAS Regulation 1606/2002 to the extent applicable to the relevant
financial statements.
Illegality Event has the meaning given to it in clause 7.1 (Illegality).
Incremental Facility Commitment means:
(a)
in relation to an Initial Incremental Facility Lender, the amount set out opposite its name under the heading Incremental Facility
Commitment in the Incremental Facility Notice and the amount of any other Incremental Facility Commitment it acquires under this
Agreement; and
(b)
in relation to any other Lender, the amount of any Incremental Facility Commitment it acquires under this Agreement,
to the extent not cancelled, reduced or transferred by it under this Agreement.
Incremental Facility Establishment Date means the later of:
(a)
(b)
the proposed Incremental Facility Establishment Date specified in the Incremental Facility Notice; and
the date on which the Agent executes the Incremental Facility Notice.
Incremental Facility Notice means a notice substantially in the form set out in Schedule 8 (Form of Incremental Facility Notice).
Incremental Facility means the term loan facility that may be established and made available under this Agreement as described under clause
2.2 (Incremental Facility).
Incremental Facility Lender means:
(a)
(b)
an Initial Incremental Facility Lender; or
any person which becomes a Lender under the Incremental Facility in accordance with clause 22 (Changes to the Lenders),
which in each case has not ceased to be a Party as such in accordance with the terms of this Agreement.
Incremental Loan means a loan made or to be made under the Incremental Facility or the principal amount outstanding for the time being of
that loan.
Indirect Tax means any goods and services tax, consumption tax, value added tax or any tax of a similar nature.
Information Memorandum means the document in the form approved by the Borrower concerning the Group which, at the Borrower’s request
and on its behalf, was prepared in relation to this transaction and distributed by the Mandated Lead Arrangers and Bookrunners to selected
financial institutions before the date of this Agreement.
Initial Incremental Facility Lender means each of the lenders and other financial institutions listed in the Incremental Facility Notice as Initial
Incremental Facility Lenders.
Interest Payment Date means the date on which an interest payment is due and payable by the Borrower under clause 8.2 (Payment of interest).
Interest Period means, in relation to a Loan, each period determined in accordance with clause 9 (Interest Periods) and, in relation to an Unpaid
Sum, each period determined in accordance with clause 8.3 (Default interest).
7
Interpolated Screen Rate means, in relation to any Loan, the rate (rounded upwards to four (4) decimal places) which results from interpolating
on a linear basis between:
(a)
(b)
the applicable Screen Rate for the longest period (for which that Screen Rate is available) which is less than the Interest Period of that
Loan; and
the applicable Screen Rate for the shortest period (for which that Screen Rate is available) which exceeds the Interest Period of that
Loan,
each as of the Specified Time for the currency of that Loan.
Lender means an Original Lender or an Incremental Facility Lender.
LIBOR means in relation to any Loan:
(a)
(b)
the applicable Screen Rate as of the Specified Time for a period equal to the Interest Period of that Loan;
as otherwise determined pursuant to clause 10.1 (Unavailability of Screen Rate), and if, in either case, that rate is less than zero, LIBOR
will be deemed to be zero.
Listing Event has the meaning given to it in clause 7.3(b) (Listing Event).
Loan means an Original Loan or an Incremental Loan.
London Business Day means a day (other than a Saturday or Sunday) on which commercial banks are open for general business, including
dealings in interbank deposits in London.
Majority Lenders means at any time, a Lender or Lenders:
(a)
(b)
(c)
whose participation in the outstanding Loans and whose Available Commitments then aggregate 662/3 per cent. or more of the
aggregate of all the outstanding Loans and the Available Commitments of all the Lenders;
if there is no Loan then outstanding, whose Commitments then aggregate 662/3 per cent. or more of the Total Commitments; or
if there is no Loan then outstanding and the Total Commitments have been reduced to zero, whose Commitments aggregated 662/3 per
cent. or more of the Total Commitments immediately before the reduction.
Margin means 1.15 per cent. per annum.
Material Adverse Effect means a material adverse effect on:
(a)
(b)
(c)
the business, operations, property or financial condition of the Group taken as a whole;
the ability of the Borrower to perform its obligations under the Finance Documents; or
the validity or enforceability of, or the rights or remedies of any Finance Party under, the Finance Documents.
Month means a period starting on one day in a calendar month and ending on the numerically corresponding day in the next calendar month,
except that:
(a)
(b)
(subject to paragraph (c) below) if the numerically corresponding day is not a Business Day, that period shall end on the next Business
Day in that calendar month in which that period is to end if there is one, or if there is not, on the immediately preceding Business Day;
if there is no numerically corresponding day in the calendar month in which that period is to end, that period shall end on the last
Business Day in that calendar month; and
8
(c)
if an Interest Period begins on the last Business Day of a calendar month, that Interest Period shall end on the last Business Day in the
calendar month in which that Interest Period is to end.
The above rules will only apply to the last Month of any period.
NDRC means National Development and Reform Commission of the PRC (国家发展和改革委员会) or its competent local branch or any other
authority succeeding to its functions.
NDRC Circular 2044 means the Circular on Promoting the Reform of the Filing and Registration Regime for Issuance of Foreign Debt by
Corporate Entities (Fa Gai Wai Zi [2015] No 2044) (《國家發展改革委關於推進企業發行外債備案登記制管理改革的通知》 (發改外資 [2015]
2044 號)) issued by NDRC on 14 September 2015 and its (and its current and subsequent) implementation rules and interpretations.
New Lender has the meaning given to that term in clause 22 (Changes to the Lenders).
Original Financial Statements means the audited consolidated financial statements of the Borrower for the financial year ended 31 December
2020.
Original Facility Commitment means:
(a)
in relation to an Original Lender as at the date of this Agreement, the amount set out opposite its name in Schedule 1 (Original Lenders)
under the heading Original Facility Commitments and the amount of any other Original Facility Commitment it acquires under this
Agreement; and
(b)
in relation to any other Lender, the amount of any Original Facility Commitment it acquires under this Agreement,
to the extent not cancelled, reduced or transferred by it under this Agreement.
Original Facility means the term loan facility made available under this Agreement as described under clause 2.1 (Original Facility).
Original Lender means:
(a)
(b)
an Original Lender which holds any Original Facility Commitment as at the date of this Agreement; or
any person which becomes a Lender under the Original Facility in accordance with clause 22 (Changes to the Lenders),
which in each case has not ceased to be a Party as such in accordance with the terms of this Agreement.
Original Loan means the principal amount of each borrowing under the Original Facility under this Agreement or the principal amount
outstanding for the time being of that borrowing.
Party means a party to this Agreement.
PRC means the People’s Republic of China, but excluding Hong Kong, the Macau Special Administrative Region and Taiwan.
Pro Rata Share means, at any time:
(a)
for the purpose of determining a Lender’s participation in a Utilisation, the proportion which its Available Commitment then bears to
the Available Facility of a Facility; and
(b)
for any other purpose:
(i)
the proportion which a Lender’s participation in the Loans then bears to all the Loans;
9
(ii)
(iii)
(iv)
if there is no Loan then outstanding, the proportion which its Commitment then bears to the Total Commitments;
if there is no Loan then outstanding and the Total Commitments have been reduced to zero, the proportion which its
Commitment bore to the Total Commitments immediately before the reduction; and
when the term is used in relation to a Facility, the above proportions, but applied only to the Utilisations and Commitments in
respect of that Facility.
Quotation Day means:
(a)
(b)
in relation to any period for which an interest rate is to be determined, two London Business Days before the first day of that period
unless market practice differs in the London interbank market, in which case the Quotation Day will be determined by the Agent in
accordance with market practice in the London interbank market (and if quotations would normally be given on more than one day, the
Quotation Day will be the last of those days); and
in relation to any Interest Period the duration of which is selected by the Agent pursuant to clause 8.3 (Default interest), such date as
may be determined by the Agent (acting reasonably).
Reference Bank Quotation means any quotation supplied to the Agent by a Reference Bank.
Reference Bank Rate means the arithmetic mean of the rates (rounded upwards to four decimal places) as supplied to the Agent at its request by
the Reference Banks as the rate at which the relevant Reference Bank could borrow funds in the London interbank market in the relevant
currency for the relevant period, were it to do so by asking for and then accepting interbank offers for deposits in reasonable market size in that
currency and for that period, or if different, as the rate (if any and applied to the relevant Reference Bank and the relevant currency and period)
which contributors to the Screen Rate are asked to submit to the relevant administrator.
Reference Banks means a minimum of three Lenders which may be appointed by the Agent in consultation with the Borrower from time to time
and which accept such appointment.
Related Fund, in relation to a fund (the first fund), means a fund which is managed or advised by the same investment manager or investment
adviser as the first fund or, if it is managed by a different investment manager or investment adviser, a fund whose investment manager or
investment adviser is an Affiliate of the investment manager or investment adviser of the first fund.
Relevant Nominating Body means any applicable central bank, regulator or other supervisory authority or a group of them, or any working
group or committee sponsored or chaired by, or constituted at the request of, any of them or the Financial Stability Board.
Relevant Proportion means, at any time in respect of a Loan requested by the Borrower, or a Commitment cancelled by the Borrower, or any
prepayment of a Loan (or any part of it); the proportion of (a) the amount of such Loan or Commitment (as applicable) under a Facility, to (b) (in
respect of the request or cancellation of a Loan) the Available Commitment under that Facility immediately prior to the making of such Loan or
cancellation of such Commitment (as the case may be) or (in respect of the prepayment of a Loan (or any part of it)) the aggregate amount of the
Loans outstanding under the Facility of that Loan immediately prior to the prepayment of such Loan (or any part of it).
Repeating Representations means each of the representations set out in clause 17 (Representations) (other than clause 17.7 (Deduction of Tax),
clause 17.8 (No filing or stamp taxes), clause 17.11(c) (Financial statements), clause 17.19 (Group Structure Chart) and clause 17.20 (Existing
BOC Facility)).
Replacement Benchmark means a benchmark rate which is:
(a)
formally designated, nominated or recommended as the replacement for the applicable Screen Rate by:
(i)
the administrator of the applicable Screen Rate; or
10
(ii)
any Relevant Nominating Body,
and if replacements have, at the relevant time, been formally designated, nominated or recommended under both paragraphs, the
“Replacement Benchmark” will be the replacement under paragraph (ii) above;
in the opinion of the Majority Lenders and the Borrower, generally accepted in the international or any relevant domestic syndicated
loan markets as the appropriate successor to the applicable Screen Rate; or
in the opinion of the Majority Lenders and the Borrower, an appropriate successor to the applicable Screen Rate.
(b)
(c)
Representative means any delegate, agent, manager, administrator, nominee, attorney, trustee or custodian.
Resolution Authority means any body which has the authority to exercise any Write-down and Conversion Powers.
RMB means the lawful currency of PRC from time to time.
Sanctions means the sanctions (including export controls) laws, regulations, embargoes or restrictive measures administered, enacted or
enforced by any of the Sanctions Authorities.
Sanctions Authorities means:
(a)
(b)
(c)
(d)
(e)
(f)
(g)
(h)
the United States of America;
the United Nations;
the European Union;
the United Kingdom;
Hong Kong;
PRC;
the Commonwealth of Australia; and
the respective Governmental Agencies of any of the foregoing, including without limitation, the US Department of the Treasury’s
Office of Foreign Assets Control, the US Department of State, the United Nations Security Council, Her Majesty’s Treasury, the
Department of Foreign Affairs and Trade of Australia, the US Department of Commerce Bureau of Industry Security and the Hong
Kong Monetary Authority.
Screen Rate means the London interbank offered rate administered by ICE Benchmark Administration Limited (or any other person which takes
over the administration of that rate) for the relevant period displayed (before any correction, recalculation or republication by the administrator)
on page LIBOR01 of the Thomson Reuters screen (or any replacement Thomson Reuters page which displays that rate), or on the appropriate
page of such other information service which publishes that rate from time to time in place of Thomson Reuters. If such page or service ceases to
be available, the Agent may specify another page or service displaying the relevant rate after consultation with the Borrower.
Screen Rate Replacement Event means, in relation to the Screen Rate:
the methodology, formula or other means of determining such Screen Rate has, in the opinion of the Majority Lenders and the
Borrower, materially changed;
(a)
(b)
(i)
(A)
the administrator of such Screen Rate or its supervisor publicly announces that such administrator is insolvent; or
11
(B)
information is published in any order, decree, notice, petition or filing, however described, of or filed with a court,
tribunal, exchange, regulatory authority or similar administrative, regulatory or judicial body which reasonably
confirms that the administrator of such Screen Rate is insolvent,
provided that, in each case, at that time, there is no successor administrator to continue to provide such Screen Rate;
the administrator of such Screen Rate publicly announces that it has ceased or will cease, to provide such Screen Rate
permanently or indefinitely and, at that time, there is no successor administrator to continue to provide such Screen Rate;
the supervisor of the administrator of such Screen Rate publicly announces that such Screen Rate has been or will be
permanently or indefinitely discontinued; or
the administrator of such Screen Rate or its supervisor announces that such Screen Rate may no longer be used; or
the supervisor of the administrator of that Screen Rate makes a public announcement or publishes information:
(ii)
(iii)
(iv)
(v)
(A)
(B)
stating that that Screen Rate is no longer or, as of a specified future date will no longer be, representative of the
underlying market or economic reality that it is intended to measure and that representativeness will not be restored (as
determined by such supervisor); and
with awareness that any such announcement or publication will engage certain triggers for fallback provisions in
contracts which may be activated by any such pre-cessation announcement or publication.
(c)
the administrator of such Screen Rate determines that such Screen Rate should be calculated in accordance with its reduced submissions
or other contingency or fallback policies or arrangements and either:
(i)
the circumstance(s) or event(s) leading to such determination are not (in the opinion of the Majority Lenders and the Borrower)
temporary; or
(ii)
such Screen Rate is calculated in accordance with any such policy or arrangement for a period no less than 15 Business Days; or
(d)
in the opinion of the Majority Lenders and the Borrower, such Screen Rate is otherwise no longer appropriate for the purposes of
calculating interest under this Agreement.
Security means a mortgage charge, pledge, lien or other security interest securing any obligation of any person or any other agreement or
arrangement having a similar effect.
Selection Notice means a notice substantially in the form set out in Part 2 of Schedule 3 (Requests) given in accordance with clause 9 (Interest
Periods).
Significant Subsidiary shall have the meaning ascribed thereto under Rule 1-02(w) of Regulation S-X (17 CFR § 210-02(w)) of the United
States Securities Act of 1933, provided that for the purposes of clause 21.6 (Insolvency) and clause 21.7 (Insolvency proceedings), all references
to “10 percent” in such definition shall be replaced by “5 percent”.
Specified Time means a day or time determined in accordance with Schedule 7 (Timetables).
SOFR means the secured overnight financing rate administered by the Federal Reserve Bank of New York (or any other person which takes over
the administration of that rate) published by the Federal Reserve Bank of New York (or any other person which takes over publication of that
rate).
12
Subsidiary means with respect to any person, each other person in which the first person:
(a)
(b)
(c)
owns or controls, directly or indirectly, share capital or other equity interests representing more than 50 per cent. of the outstanding
voting stock or other equity interests;
holds the rights to more than 50 per cent. of the economic interest of such other person, including any interest held through any VIE or
other contractual arrangements; or
has a relationship such that the financial statements of the other person are consolidated into the financial statements of the first person
under applicable accounting conventions.
Tax means any tax, levy, impost, duty or other charge or withholding of a similar nature (including any penalty or interest payable in connection
with any failure to pay or any delay in paying any of the same).
Tax Deduction means a deduction or withholding for or on account of Tax from a payment under a Finance Document, other than a FATCA
Deduction.
Third Parties Ordinance means the Contracts (Rights of Third Parties) Ordinance (Cap. 623 of the Laws of Hong Kong).
Total Commitments means at any time the aggregate of the Total Original Facility Commitments and the Total Incremental Facility
Commitments.
Total Incremental Facility Commitments means the aggregate of the Incremental Facility Commitments.
Total Original Facility Commitments means the aggregate of the Original Facility Commitments, being US$1,500,000,000 at the date of this
Agreement.
Transfer Certificate means a certificate substantially in the form set out in Schedule 4 (Form of Transfer Certificate) or any other form agreed
between the Agent and the Borrower.
Transfer Date means, in relation to an assignment or a transfer, the later of:
(a)
(b)
the proposed Transfer Date specified in the relevant Assignment Agreement or Transfer Certificate; and
the date on which the Agent executes the relevant Assignment Agreement or Transfer Certificate.
Unpaid Sum means any sum due and payable but unpaid by the Borrower under the Finance Documents.
UK Bail-In Legislation means Part I of the United Kingdom Banking Act 2009 and any other law or regulation applicable in the United
Kingdom relating to the resolution of unsound or failing banks, investment firms or other financial institutions or their affiliates (otherwise than
through liquidation, administration or other insolvency proceedings).
US means the United States of America.
US Dollar, US$ or USD means the lawful currency of the US from time to time.
US Tax Obligor means:
(a)
(b)
the Borrower, if it is resident for tax purposes in the US; or
the Borrower some or all of whose payments under the Finance Documents are from sources within the US for US federal income tax
purposes.
Utilisation means a utilisation of a Facility.
Utilisation Date means the date of a Utilisation, being the date on which the relevant Loan is to be made.
13
Utilisation Request means a notice substantially in the form set out in Part 1 of Schedule 3 (Requests).
VIE means any arrangement where any person that is established in the PRC and in respect of which the Borrower does not, directly or
indirectly, hold or own a majority of its issued shares or equity interests (and/or any or all of the shareholder(s) of such person) enters into
contractual arrangements with any member of the Group which enable such member of the Group to exercise effective control over such person
or consolidate the financial condition or results of operation of such person in accordance with GAAP for the purposes of the consolidated
financial statements of the Group.
Write-down and Conversion Powers means:
(a)
(b)
in relation to any Bail-In Legislation described in the EU Bail-In Legislation Schedule from time to time, the powers described as such
in relation to that Bail-In Legislation in the EU Bail-In Legislation Schedule; and
in relation to the UK Bail-In Legislation, any powers under that UK Bail-In Legislation to cancel, transfer or dilute shares issued by a
person that is a bank or investment firm or other financial institution or affiliate of a bank, investment firm or other financial institution,
to cancel, reduce, modify or change the form of a liability of such a person or any contract or instrument under which that liability
arises, to convert all or part of that liability into shares, securities or obligations of that person or any other person, to provide that any
such contract or instrument is to have effect as if a right had been exercised under it or to suspend any obligation in respect of that
liability or any of the powers under that UK Bail-In Legislation that are related to or ancillary to any of those powers.
1.2
Construction
(a)
Unless a contrary indication appears, any reference in this Agreement to:
(i)
(ii)
(iii)
(iv)
(v)
(vi)
(vii)
any Administrative Party, the Agent, any Mandated Lead Arranger and Bookrunner, any Finance Party, any Lender or
any Party shall be construed so as to include its successors in title, permitted assigns and permitted transferees to, or of, its
rights and/or obligations under the Finance Documents;
assets includes present and future properties, revenues and rights of every description;
a Finance Document or any other agreement or instrument is a reference to that Finance Document or other agreement or
instrument as amended, novated, supplemented, extended or restated;
including shall be construed as “including without limitation” (and cognate expressions shall be construed similarly);
a group of Lenders includes all the Lenders;
indebtedness includes any obligation (whether incurred as principal or as surety) for the payment or repayment of money,
whether present or future, actual or contingent;
a Lender’s participation in a Loan or Unpaid Sum includes an amount (in the currency of such Loan or Unpaid Sum)
representing the fraction or portion (attributable to such Lender by virtue of the provisions of this Agreement) of the total
amount of such Loan or Unpaid Sum and the Lender’s rights under this Agreement in respect thereof;
(viii)
a person includes any individual, firm, company, corporation, government, state or agency of a state or any association, trust,
joint venture, consortium, partnership or other entity (whether or not having separate legal personality);
(ix)
a regulation includes any regulation, rule, official directive, request or guideline (whether or not having the force of law) of any
governmental, intergovernmental or supranational body, agency, department or of any regulatory, self-regulatory or other
authority or organisation;
14
(x)
(xi)
(xii)
a provision of law is a reference to that provision as amended or re-enacted;
a time of day is a reference to Hong Kong time; and
technical reason in the context of suspension of trading means any reason that is not related to or in connection with any
deficiency or delinquency of the Borrower, including any suspension of trading that is pending, or is otherwise a prelude to, any
voluntary withdrawal of listing from any relevant Exchange.
(b)
(c)
(d)
(e)
(f)
The determination of the extent to which a rate is for a period equal in length to an Interest Period shall disregard any inconsistency
arising from the last day of that Interest Period being determined pursuant to the terms of this Agreement.
Section, clause and Schedule headings are for ease of reference only.
Unless a contrary indication appears, a term used in any other Finance Document or in any notice given under or in connection with any
Finance Document has the same meaning in that Finance Document or notice as in this Agreement.
A Default (other than an Event of Default) is continuing if it has not been remedied or waived and an Event of Default is continuing if
it has not been waived.
Where this Agreement specifies an amount in a given currency (the specified currency) or its equivalent, the equivalent is a reference
to the amount of any other currency which, when converted into the specified currency utilising the Agent’s spot rate of exchange (or, if
the Agent does not have an available spot rate of exchange, any publicly available spot rate of exchange selected by the Agent (acting
reasonably)) for the purchase of the specified currency with that other currency at or about 11am on the relevant date, is equal to the
relevant amount in the specified currency.
1.3
Third party rights
(a)
(b)
Unless expressly provided to the contrary in a Finance Document, a person who is not a Party has no right under the Third Parties
Ordinance to enforce or to enjoy the benefit of any term of this Agreement.
Notwithstanding any term of any Finance Document, the consent of any person who is not a Party is not required to rescind or vary this
Agreement at any time.
1.4
Contractual recognition of bail-in
Notwithstanding any other term of any Finance Document or any other agreement, arrangement or understanding between the Parties, each Party
acknowledges and accepts that any liability of any Party to any other Party under or in connection with the Finance Documents may be subject to
Bail-In Action by the relevant Resolution Authority and acknowledges and accepts to be bound by the effect of:
(a)
any Bail-In Action in relation to any such liability, including (without limitation):
(i)
(ii)
a reduction, in full or in part, in the principal amount, or outstanding amount due (including any accrued but unpaid interest) in
respect of any such liability;
a conversion of all, or part of, any such liability into shares or other instruments of ownership that may be issued to, or conferred
on, it; and
(iii)
a cancellation of any such liability; and
(b)
a variation of any term of any Finance Document to the extent necessary to give effect to any Bail-In Action in relation to any such
liability.
15
2
The Facilities
2.1
Original Facility
Subject to the terms of this Agreement, the Original Lenders make available to the Borrower a US Dollar term loan facility in an aggregate
amount equal to the Total Original Facility Commitments.
2.2
Incremental Facility
(a)
(b)
(c)
(d)
(e)
(f)
(g)
(h)
(i)
(i)
(ii)
(j)
(k)
Subject to the terms of this Agreement, one US Dollar term loan Incremental Facility may be established and made available to the
Borrower.
The Borrower and each Initial Incremental Facility Lender may request the establishment of the Incremental Facility by the Borrower
delivering to the Agent a duly completed Incremental Facility Notice not later than ten Business Days prior to the proposed Incremental
Facility Establishment Date specified in the Incremental Facility Notice (or by such later date as the Agent may agree).
Only one Incremental Facility Notice may be delivered by the Borrower.
The Borrower may not deliver the Incremental Facility Notice in respect of the Incremental Facility unless the Agent has received
evidence that the filing and registration requirement of the Incremental Facility with the NDRC in accordance with NDRC Circular
2044 and any implementation rule or regulation in connection with the NDRC Circular 2044 has been duly completed. The Agent shall
notify the Borrower and the Lenders promptly upon receiving such documents and other evidence.
Other than to the extent that the Majority Lenders notify the Agent in writing to the contrary before the Agent gives the notification in
paragraph (d) above, the Lenders authorise (but do not require) the Agent to give that notification. The Agent shall not be liable for any
damages, costs or losses whatsoever as a result of giving any such notification.
The Incremental Facility Establishment Date must occur on or prior to the date which falls five Months after the date of this Agreement.
The Incremental Facility Notice is irrevocable and will not be regarded as having been duly completed if the Total Commitments
immediately following the establishment of the Incremental Facility would exceed US$1,500,000,000.
Only one Incremental Facility may be requested in the Incremental Facility Notice.
The establishment of the Incremental Facility will only be effected in accordance with paragraphs (j), (k) and (l) below if, on the date of
the Incremental Facility Notice and on the Incremental Facility Establishment Date:
no Default is continuing or would result from the establishment of the proposed Incremental Facility; and
the Repeating Representations are correct in all material respects (in the case of any representation or warranty which is not already
qualified by materiality or Material Adverse Effect).
If the conditions set out in this Agreement have been met, the establishment of the Incremental Facility will be effected in accordance
with paragraph (l) below when the Agent executes an otherwise duly completed Incremental Facility Notice. The Agent shall, subject to
paragraph (k) below, as soon as reasonably practicable after receipt by it of a duly completed Incremental Facility Notice appearing on
its face to comply with the terms of this Agreement and delivered in accordance with the terms of this Agreement, execute the
Incremental Facility Notice.
The Agent shall only be obliged to execute the Incremental Facility Notice delivered to it by the Borrower once it is satisfied it has
complied with all necessary “know your customer” checks or other similar checks required under any applicable law or regulation in
connection with the establishment of the Incremental Facility.
16
(l)
On the Incremental Facility Establishment Date:
(i)
(ii)
(iii)
(iv)
subject to the terms of this Agreement the Initial Incremental Facility Lenders make available to the Borrower a term loan
facility in an aggregate amount equal to the Total Incremental Facility Commitments specified in the Incremental Facility
Notice;
each Initial Incremental Facility Lender shall assume all the obligations of a Lender corresponding to the relevant Incremental
Facility Commitment (the Assumed Incremental Facility Commitment) specified opposite its name in the Incremental
Facility Notice as if it was an Original Lender with respect to that Incremental Facility Commitment;
the Borrower and each Initial Incremental Facility Lender shall assume obligations towards one another and/or acquire rights
against one another as the Borrower and that Initial Incremental Facility Lender would have assumed and/or acquired had that
Initial Incremental Facility Lender been an Original Lender with respect to the Assumed Incremental Facility Commitment;
each Initial Incremental Facility Lender and each of the other Finance Parties shall assume obligations towards one another and
acquire rights against one another as that Initial Incremental Facility Lender and those Finance Parties would have assumed
and/or acquired had the Initial Incremental Facility Lender been an Original Lender with respect to the Assumed Incremental
Facility Commitment; and
(v)
each Initial Incremental Facility Lender shall become a Party as a Lender.
(m)
(n)
(o)
The Agent shall, as soon as reasonably practicable after the establishment of the Incremental Facility, notify the Borrower and the
Lenders of that establishment and the Incremental Facility Establishment Date of the Incremental Facility.
Each Initial Incremental Facility Lender, by executing the Incremental Facility Notice, confirms for the avoidance of doubt, that the
Agent has authority to execute on its behalf any amendment or waiver that has been approved by or on behalf of the requisite Lender or
Lenders in accordance with this Agreement on or prior to the date on which the establishment of the Incremental Facility requested in
that Incremental Facility Notice became effective.
clause 22.4 (Limitation of responsibility of Existing Lenders) shall apply mutatis mutandis in this clause 2.2 in relation to any Initial
Incremental Facility Lender as if references in clause 22.4 to:
(i)
(ii)
an Existing Lender were references to all the Lenders immediately prior to the Incremental Facility Establishment Date;
the New Lender were references to an Initial Incremental Facility Lender; and
(iii)
a re-transfer and re-assignment were references respectively to a transfer and assignment.
2.3
Finance Parties’ rights and obligations
(a)
(b)
The obligations of each Finance Party under the Finance Documents are several. Failure by a Finance Party to perform its obligations
under the Finance Documents does not affect the obligations of any other Party under the Finance Documents. No Finance Party is
responsible for the obligations of any other Finance Party under the Finance Documents.
The rights of each Finance Party under or in connection with the Finance Documents are separate and independent rights and any debt
arising under the Finance Documents to a Finance Party from the Borrower is a separate and independent debt in respect of which a
Finance Party shall be entitled to enforce its rights in accordance with paragraph (c) below. The rights of each Finance Party include any
debt owing to that Finance Party under the Finance Documents and, for the avoidance of doubt, any part of a Loan or any other amount
owed by the Borrower which relates to a Finance Party’s participation in a Facility or its role under a Finance Document (including any
such amount payable to the Agent on its behalf) is a debt owing to that Finance Party by the Borrower.
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(c)
A Finance Party may, except as specifically provided in the Finance Documents, separately enforce its rights under or in connection
with the Finance Documents.
3
Purpose
3.1
Purpose
The Borrower shall apply all amounts borrowed by it under the Facilities towards:
(a)
(b)
firstly, the refinancing of the Existing 2019 Facility; and
then, the general corporate purposes of the Group (including, but not limited to, funding the working capital needs of the Group and the
financing payment of any associated fees and expenses in relation to the Facilities).
3.2 Monitoring
No Finance Party is bound to monitor or verify the application of any amount borrowed pursuant to this Agreement.
4
Conditions of Utilisation
4.1
Initial conditions precedent
(a)
(b)
(c)
(d)
The Borrower may not deliver a Utilisation Request in respect of any Facility unless the Agent has received all of the documents listed
in and appearing to comply with the requirements of Schedule 2 (Conditions Precedent). The Agent shall notify the Borrower and the
Lenders promptly upon receiving such documents and other evidence.
Other than to the extent that the Majority Lenders notify the Agent in writing to the contrary before the Agent gives the notification
described in paragraph (a) above, the Lenders authorise (but do not require) the Agent to give that notification. The Agent shall not be
liable for any damages, costs or losses whatsoever as a result of giving any such notification.
No Utilisation Request in respect of the Incremental Facility may be given unless the Agent is satisfied that all the requirements set out
in the Incremental Facility Notice appears to have been complied with. The Agent must notify the Borrower and the Lenders promptly
on being so satisfied.
Except to the extent that the Majority Lenders notify the Agent to the contrary before the Agent gives the notification described in
paragraph (c) above, each Lender authorises (but does not require) the Agent to give that notification. The Agent will not be liable for
any cost, loss or liability whatsoever any person incurs as a result of the Agent giving any such notification.
4.2
Further conditions precedent
Each Lender will only be obliged to comply with clause 5.4 (Lenders’ participation) if on the date of the Utilisation Request and on the
proposed Utilisation Date:
(a)
(b)
(c)
no Default is continuing or would result from the proposed Loan;
the Repeating Representations to be made by the Borrower are true in all material respects (in the case of any representation or warranty
which is not already qualified by materiality or Material Adverse Effect); and
there is (i) no Illegality Event in respect of such Lender, (ii) no Change of Control and (iii) no Listing Event.
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4.3 Maximum number of Utilisation Requests
The Borrower may not deliver more than:
(a)
(b)
ten Utilisation Requests in respect of the Original Facility; and
five Utilisation Requests in respect of the Incremental Facility.
5
Utilisation
5.1
Delivery of a Utilisation Request
The Borrower may borrow a Loan by delivery to the Agent of a duly completed Utilisation Request not later than the Specified Time.
5.2
Completion of a Utilisation Request
(a)
Subject to the provisions of clause 4.1 (Initial conditions precedent), a Utilisation Request for a Loan is irrevocable and will not be
regarded as having been duly completed unless:
(i)
(ii)
(iii)
(iv)
it identifies the Facility under which the Loan is to be made;
the proposed Utilisation Date is a Business Day within the Availability Period;
the currency and amount of the Loan comply with clause 5.3 (Currency and amount); and
the proposed first Interest Period complies with clause 9 (Interest Periods).
(b)
Only one Loan may be requested in each Utilisation Request.
5.3
Currency and amount
(a)
(b)
The currency specified in a Utilisation Request must be US Dollars.
The amount of the proposed Loan must be a minimum of US$50,000,000 and an integral multiple of US$10,000,000 or, if less, the
Available Facility.
5.4
Lenders’ participation
(a)
(b)
(c)
(d)
(e)
If the conditions set out in this Agreement have been met, each Lender shall make its participation in each Loan available by the
Utilisation Date through its Facility Office to the Agent.
The amount of each Lender’s participation in each Loan will be its Pro Rata Share immediately prior to making the Loan.
No Lender is obliged to participate in a Loan if, as a result:
(i)
(ii)
its participation in the Loans would exceed its Commitment; or
the Loans would exceed the Total Commitments.
Upon a Lender having made available its share in a Loan to the Agent for the Borrower through its Facility Office on a Utilisation Date
under this clause, that Lender’s Original Facility Commitment or Incremental Facility Commitment (as the case may be) will be
reduced by an amount equal to the amount of the requested Loan that that Lender has made available pursuant to this clause.
The Agent shall notify each Lender of the details of each proposed Loan and the amount of its participation in that Loan by the
Specified Time.
5.5
Cancellation of Available Facility
The Commitments which, at that time, are unutilised shall be immediately cancelled at 5pm on the last day of the Availability Period.
19
6
Repayment
6.1
Repayment of Loans
The Borrower must repay all outstanding Loans in full on the Final Repayment Date.
6.2
Reborrowing
The Borrower may not reborrow any part of a Facility which is repaid.
7
Prepayment and Cancellation
7.1
Illegality
If, at any time, it is or will become unlawful in any applicable jurisdiction for a Lender to perform any of its obligations as contemplated by this
Agreement or to fund or maintain its participation in any Loan or it is or will become unlawful for any Affiliate of a Lender for that Lender to do
so (an Illegality Event):
(a)
(b)
(c)
that Lender shall promptly notify the Agent upon becoming aware of that event;
upon the Agent notifying the Borrower, that Lender will not be obliged to fund a Utilisation and the Available Commitment of that
Lender will be immediately cancelled; and
to the extent that the Lender’s participation has not been transferred pursuant to paragraph (d) of clause 7.7 (Right of prepayment and
cancellation in relation to a single Lender), the Borrower shall repay that Lender’s participation in the Loans on the last day of the
Interest Period for each Loan occurring after the Agent has notified the Borrower or, if earlier, the date specified by the Lender in the
notice delivered to the Agent (being no earlier than the last day of any applicable grace period permitted by law) and that Lender’s
corresponding Commitment shall be cancelled in the amount of the participation repaid.
7.2
Change of control
If the Co-founders (in their capacity as directors), together with the persons identified as directors by any of the Co-founders in the list most
recently delivered by the Borrower to the Agent pursuant to clause 4.1 (Initial conditions precedent) or clause 18.2 (Compliance Certificate) (as
the case may be), cease to make up more than 50 per cent. of the board of directors of the Borrower (Change of Control):
(a)
(b)
(c)
Borrower shall promptly notify the Agent upon becoming aware of that event;
with immediate effect, no Lender shall be obliged to fund a Utilisation; and
if a Lender so requires and notifies the Agent within five Business Days of the Borrower notifying the Agent of the event, the Agent
shall, by not less than ten Business Days’ prior notice to the Borrower, cancel the Commitment of that Lender and declare the
participation of that Lender in all outstanding Loans, together with accrued interest, and all other amounts accrued under the Finance
Documents in relation to that Lender’s participation(s) immediately due and payable, whereupon the Commitment of that Lender will
be cancelled and all such outstanding Loans and amounts will become immediately due and payable.
7.3
Listing Event
(a)
If a Listing Event occurs:
(i)
(ii)
the Borrower shall promptly notify the Agent upon becoming aware of that event;
with immediate effect, no Lender shall be obliged to fund a Utilisation; and
20
(iii)
if a Lender so requires and notifies the Agent within five Business Days of the Borrower notifying the Agent of the event, the
Agent shall, by not less than ten Business Days’ prior notice to the Borrower, cancel the Commitment of that Lender and declare
the participation of that Lender in all outstanding Loans, together with accrued interest, and all other amounts accrued under the
Finance Documents in relation to that Lender’s participation(s) immediately due and payable, whereupon the Commitment of
that Lender will be cancelled and all such outstanding Loans and amounts will become immediately due and payable.
(b)
For the purpose of clause 7.3(a), Listing Event means:
(i)
the shares of the Borrower cease to be listed on all of The New York Stock Exchange (the NYSE), the HKEX, the NDAQ, The
Shanghai Stock Exchange (the SSE), The Shenzhen Stock Exchange (the SZSE), The Tokyo Stock Exchange (the TSE) or The
Singapore Exchange (the SGX, together with the NYSE, the HKEX, the NDAQ, the SSE, the SZSE and the TSE, the
Exchanges); or
(ii)
the trading of shares of the Borrower is suspended for more than ten consecutive trading days in any of the relevant Exchange(s)
on which trading is carried out on the relevant Exchange(s) generally other than as a result of purely technical reasons.
7.4
Banking (Exposure Limits) Rules
(a)
If, at any time, the Exposure Limits Event occurs:
(i)
(ii)
(iii)
the Borrower shall promptly notify the Agent upon becoming aware of that event;
(A) upon the Agent notifying the Borrower that an Exposure Limits Event has occurred, or that Borrower has become aware of
an Exposure Limits Event but has failed to notify the Agent, and (B) if as a result of such Exposure Limits Event, funding its
participation in a Utilisation would result in the failure of the Relevant Lender (as defined in paragraph (b) below) to comply
with the Exposure Limits Rules, such Relevant Lender will not be obliged to fund a Utilisation; and
if, as a result of the Exposure Limits Event, maintaining its participation in the outstanding Loans would result in the failure of
the Relevant Lender to comply with the Exposure Limits Rules, such Relevant Lender may require its participation in all
outstanding Loans to be prepaid by written notification to the Agent within five days of the Borrower notifying the Agent of the
Exposure Limits Event, or the Agent notifying the Borrower under sub-paragraph (ii) above, whichever is earlier, in which case
the Agent shall, by not less than ten Business Days’ notice to the Borrower, cancel the Commitment of that Relevant Lender and
declare the participation of that Relevant Lender in all outstanding Loans, together with accrued interest, and all other amounts
accrued under the Finance Documents in relation to that Relevant Lender’s participation(s) immediately due and payable,
whereupon the Commitment of that Relevant Lender will be cancelled and all such outstanding Loans and amounts will become
immediately due and payable.
(b)
For the purpose of this clause 7.4:
Exposure Limits Event means, at any time, the Borrower is or becomes in any way related or connected to any Lender (such Lender, a
Relevant Lender), its subsidiaries, related bodies corporate, associated entities and undertakings and any of their branches within the
meaning of the Exposure Limits Rules; and
Exposure Limits Rules means Banking (Exposure Limits) Rules (Cap. 155S of the Laws of Hong Kong).
(c)
The Borrower may refer to Schedule 9 (Banking (Exposure Limits) Rules) for an explanation of when it may be considered related or
connected to the Lenders for the purposes hereof.
7.5
Voluntary cancellation
(a)
The Borrower may, if it gives the Agent not less than ten days’ (or such shorter period as the Majority Lenders may agree) prior written
notice, cancel the whole or any part of the Available Facility in respect of an Original Facility.
21
(b)
(c)
Any partial cancellation of an Original Facility Commitment under this clause must be in a minimum of US$50,000,000 and an integral
multiple of US$10,000,000.
Any cancellation under this clause of an Original Facility Commitment (or any part of it) must be made together with the cancellation of
a corresponding Incremental Facility Commitment in an amount which would result in the Relevant Proportion in respect of the
relevant cancelled Incremental Facility Commitment being equal to the Relevant Proportion of the cancelled Original Facility
Commitment.
(d)
Any cancellation in part under this clause 7.5 shall reduce the Commitments of the Lenders rateably.
7.6
Voluntary prepayment of Loans
(a)
(b)
(c)
The Borrower may, if it gives the Agent not less than ten days’ (or such shorter period as the Majority Lenders may agree) prior written
notice, prepay on the last day of an Interest Period applicable thereto the whole or any part of an Original Loan.
The prepayment of part of each Original Loan must be in a minimum amount of US$50,000,000 and an integral multiple of
US$10,000,000.
Any prepayment under this clause of an Original Loan (or any part of it) must be made together with the prepayment of a corresponding
Incremental Loan in an amount which would result in the Relevant Proportion in respect of the relevant Incremental Loan being equal
to the Relevant Proportion of the prepaid Original Loan.
7.7
Right of prepayment and cancellation in relation to a single Lender
(a)
(b)
(c)
(d)
If any Lender claims indemnification from the Borrower under clause 13.1 (Increased costs), the Borrower may, whilst the
circumstance giving rise to the requirement for that indemnification continues, give the Agent notice of cancellation of the Commitment
of that Lender and its intention to procure the prepayment of that Lender’s participation in the Loans or give the Agent notice of its
intention to replace that Lender in accordance with paragraph (d) below.
On receipt of a notice of cancellation referred to in paragraph (a) above, the Commitment of that Lender shall immediately be reduced
to zero.
On the last day of each Interest Period which ends after the Borrower has given notice of cancellation under paragraph (a) above (or, if
earlier, the date specified by the Borrower in that notice), the Borrower shall prepay that Lender’s participation in that Loan.
If:
(i)
any of the circumstances set out in paragraph (a) above apply to a Lender; or
(ii)
the Borrower becomes obliged to pay any amount in accordance with clause 7.1 (Illegality) to any Lender,
the Borrower may, on ten Business Days’ prior written notice to the Agent and that Lender, replace that Lender by requiring that Lender
to (and, to the extent permitted by law, that Lender shall) transfer pursuant to clause 22 (Changes to the Lenders) all (and not part only)
of its rights and obligations under the Finance Documents to a Lender or other bank, financial institution, trust, fund or other entity
selected by the Borrower which confirms its willingness to assume and does assume all the obligations of the transferring Lender in
accordance with clause 22 (Changes to the Lenders) for a purchase price in cash payable at the time of the transfer in an amount equal
to the outstanding principal amount of such Lender’s participation in the outstanding Loans and all accrued interest, Break Costs and
other amounts payable in relation thereto under the Finance Documents.
22
(e)
The replacement of a Lender pursuant to paragraph (d) above shall be subject to the following conditions:
(i)
(ii)
(iii)
(iv)
the Borrower shall have no right to replace the Agent;
neither the Agent nor any Lender shall have any obligation to find a replacement Lender;
in no event shall the Lender replaced under paragraph (d) above be required to pay or surrender any of the fees received by such
Lender pursuant to the Finance Documents; and
no Lender shall be obliged to execute a Transfer Certificate unless it is satisfied that it has completed all “know your customer”
and other similar procedures that it is required (or deems desirable) to conduct in relation to the transfer to such replacement
Lender.
(f)
A Lender shall perform the procedures described in paragraph (e)(iv) above as soon as reasonably practicable following delivery of a
notice referred to in paragraph (d) above and shall notify the Agent and the Borrower when it is satisfied that it has completed those
checks.
7.8
Restrictions
(a)
(b)
(c)
(d)
(e)
(f)
(g)
Any notice of cancellation or prepayment given by any Party under this clause 7 shall be irrevocable and, unless a contrary indication
appears in this Agreement, shall specify the date or dates upon which the relevant cancellation or prepayment is to be made and the
amount of that cancellation or prepayment.
Any prepayment under this Agreement shall be made together with accrued interest on the amount prepaid and, subject to any Break
Costs, without premium or penalty.
The Borrower may not reborrow any part of a Facility which is prepaid.
The Borrower shall not repay or prepay all or any part of the Loans or cancel all or any part of the Commitment except at the times and
in the manner expressly provided for in this Agreement.
No amount of the Total Commitments cancelled under this Agreement may be subsequently reinstated.
If the Agent receives a notice under this clause 7 it shall promptly forward a copy of that notice to either the Borrower or the affected
Lender, as appropriate.
If all or part of any Lender’s participation in a Loan is repaid or prepaid an amount of that Lender’s Commitment (equal to the amount
of the participation which is repaid or prepaid) will be deemed to be cancelled on the date of repayment or prepayment.
7.9
Application of prepayments
Any prepayment of a Loan pursuant to clause 7.6 (Voluntary prepayment of Loans) shall be applied pro rata to each Lender’s participation in that
Loan.
8
Interest
8.1
Calculation of interest
The rate of interest on each Loan for each Interest Period is the percentage rate per annum which is the aggregate of the applicable:
(a)
(b)
Margin; and
LIBOR.
8.2
Payment of interest
The Borrower shall pay accrued interest on each Loan on the last day of each Interest Period (and, if the Interest Period is longer than six
Months, on the dates falling at six-monthly intervals after the first day of the Interest Period).
23
8.3
Default interest
(a)
(b)
If the Borrower fails to pay any amount payable by it under a Finance Document on its due date, interest shall accrue on the Unpaid
Sum from the due date to the date of actual payment (both before and after judgment) at a rate which is, subject to paragraph (b) below,
two per cent. per annum higher than the rate which would have been payable if the Unpaid Sum had, during the period of non-payment,
constituted a Loan in the currency of the Unpaid Sum for successive Interest Periods, each of a duration selected by the Agent (acting
reasonably). Any interest accruing under this clause 8.3 shall be immediately payable by the Borrower on demand by the Agent.
If any Unpaid Sum consists of all or part of a Loan which became due on a day which was not the last day of an Interest Period relating
to that Loan:
(i)
(ii)
the first Interest Period for that Unpaid Sum shall have a duration equal to the unexpired portion of the current Interest Period
relating to that Loan; and
the rate of interest applying to the Unpaid Sum during that first Interest Period shall be two per cent. per annum higher than the
rate which would have applied if the Unpaid Sum had not become due.
(c)
Default interest (if unpaid) arising on an Unpaid Sum will be compounded with the Unpaid Sum at the end of each Interest Period
applicable to that Unpaid Sum but will remain immediately due and payable.
8.4
Notification of rates of interest
(a)
(b)
The Agent shall promptly notify the Lenders and the Borrower of the determination of a rate of interest under this Agreement.
The Agent shall promptly notify the Borrower of each Funding Rate relating to a Loan.
9
Interest Periods
9.1
Selection of Interest Periods
(a)
(b)
(c)
(d)
(e)
(f)
The Borrower may select an Interest Period for a Loan in the applicable Utilisation Request or (if the Loan has already been borrowed)
in a Selection Notice.
Each Selection Notice for a Loan is irrevocable and must be delivered to the Agent by the Borrower not later than the Specified Time.
If the Borrower fails to deliver a Selection Notice to the Agent in accordance with paragraph (b) above, the relevant Interest Period will
be three Months.
Subject to this clause 9, the Borrower may select an Interest Period of one, three or (subject to funding availability) six Months or any
other period agreed between the Borrower, the Agent and all the Lenders. In addition, the Borrower may select an Interest Period of any
other duration not exceeding six Months, if necessary to ensure subsequent Loans have an Interest Period ending on an existing Interest
Payment Date.
An Interest Period for a Loan shall not extend beyond the Final Repayment Date.
Each Interest Period for a Loan shall start on the Utilisation Date or (if a Loan has already been made) on the last day of the preceding
Interest Period of such Loan.
9.2
Non-Business Days
If an Interest Period would otherwise end on a day which is not a Business Day, that Interest Period will instead end on the next Business Day in
that calendar month (if there is one) or the preceding Business Day (if there is not).
24
9.3
Consolidation of Loans
(a)
If two or more Interest Periods:
(i)
(ii)
relate to Loans in the same currency or under the same Facility; and
end on the same date,
those Loans will, unless the Borrower specifies to the contrary in the Selection Notice for the next Interest Period, be consolidated into,
and treated as, a single Loan on the last day of the Interest Period.
(b)
If a Loan is already outstanding, then the first Interest Period for each subsequent Loan must end on the last day of the current Interest
Period for such outstanding Loan (the Current Interest Period) and on the last day of the Current Interest Period, the new Loan will be
consolidated with all other Loans then outstanding so that together they form the Loan on the last day of the Interest Period. The next
following Interest Period will then be applicable to the Loan in accordance with the terms of clause 9.1(d) (Selection of Interest
Periods).
10
Changes to the Calculation of Interest
10.1 Unavailability of Screen Rate
(a)
Interpolated Screen Rate: If no Screen Rate is available for LIBOR for the Interest Period of a Loan, the applicable LIBOR shall be the
Interpolated Screen Rate for a period equal in length to the Interest Period of that Loan.
(b)
Reference Bank Rate: If no Screen Rate is available for LIBOR for:
(i)
(ii)
US Dollars; or
the Interest Period of a Loan and it is not possible to calculate the Interpolated Screen Rate,
the LIBOR shall be the Reference Bank Rate as of the Specified Time and for a period equal in length to the Interest Period of that
Loan.
(c)
Cost of funds: If paragraph (b) above applies but no Reference Bank Rate is available for the Interest Period there shall be no LIBOR
for that Loan and clause 10.4 (Cost of funds) shall apply to that Loan for that Interest Period.
10.2 Calculation of Reference Bank Rate
(a)
(b)
Subject to paragraph (b) below, if LIBOR is to be determined on the basis of a Reference Bank Rate but a Reference Bank does not
supply a quotation by the Specified Time, the Reference Bank Rate shall be calculated on the basis of the quotations of the remaining
Reference Banks.
If at or about the Specified Time referred to in paragraph (a) above, none or only one of the Reference Banks supplies a quotation, there
shall be no Reference Bank Rate for the relevant Interest Period.
10.3 Market disruption
If before 5pm in Hong Kong on the Business Day immediately following the Quotation Day in respect of the relevant Interest Period the Agent
receives notifications from a Lender or Lenders (whose participations in a Loan exceed 35 per cent. of that Loan) that the cost to it of funding its
participation in that Loan from whatever source it may reasonably select would be in excess of LIBOR then clause 10.4 (Cost of funds) shall
apply to that Loan for the relevant Interest Period.
25
10.4 Cost of funds
(a)
If this clause 10.4 applies, the rate of interest on each Lender’s share of the relevant Loan for the relevant Interest Period shall be the
percentage rate per annum which is the sum of:
(i)
(ii)
the Margin; and
the rate notified to the Agent by that Lender as soon as practicable and in any event before the date on which interest is due to be
paid in respect of that Interest Period, to be that which expresses as a percentage rate per annum the cost to the relevant Lender
of funding its participation in that Loan from whatever source it may reasonably select.
(b)
(c)
If this clause 10.4 applies and the Agent or the Borrower so requires, the Agent and the Borrower shall enter into negotiations (for a
period of not more than 30 days) with a view to agreeing a substitute basis for determining the rate of interest and/or cost of funding for
the affected Loan. For the avoidance of doubt, in the event that no substitute basis is agreed at the end of the 30- day period, the rate of
interest will continue to be determined in accordance with clause 10.3 (Market disruption) and paragraph (a) above.
Any alternative basis agreed pursuant to paragraph (b) above shall, with the prior consent of all the Lenders and the Borrower, be
binding on all Parties.
10.5 Notification to Borrower
If clause 10.4 (Cost of funds) applies, the Agent shall, as soon as is practicable, notify the Borrower.
10.6 Break Costs
(a)
(b)
The Borrower shall, within three Business Days of demand by a Finance Party, pay to that Finance Party its Break Costs attributable to
all or any part of a Loan or Unpaid Sum being paid by the Borrower on a day other than the last day of an Interest Period for that Loan
or Unpaid Sum.
Each Lender shall, as soon as reasonably practicable after a demand by the Agent, provide a certificate confirming the amount of its
Break Costs for any Interest Period in which they accrue.
11
Fees
11.1 Arrangement Fee
The Borrower shall pay to the Agent (for the account of the persons specified in the relevant Fee Letter) an arrangement fee in the amount and at
the times agreed in a Fee Letter.
11.2 Agency Fee
The Borrower shall pay to the Agent (for its own account) an agency fee in the amount and at the times agreed in a Fee Letter.
12
FATCA
12.1
FATCA information
(a)
Subject to paragraph (c) below, each Party shall, within ten Business Days of a reasonable request by another Party:
(i)
confirm to that other Party whether it is:
(A)
(B)
a FATCA Exempt Party; or
not a FATCA Exempt Party;
26
(ii)
(iii)
supply to that other Party such forms, documentation and other information relating to its status under FATCA as that other
Party reasonably requests for the purposes of that other Party’s compliance with FATCA; and
supply to that other Party such forms, documentation and other information relating to its status as that other Party reasonably
requests for the purposes of that other Party’s compliance with any other law, regulation, or exchange of information regime.
If a Party confirms to another Party pursuant to paragraph (a)(i) above that it is a FATCA Exempt Party and it subsequently becomes
aware that it is not or has ceased to be a FATCA Exempt Party, that Party shall notify that other Party as soon as reasonably practicable.
Paragraph (a) above shall not oblige any Finance Party to do anything, and paragraph (a)(iii) above shall not oblige any other Party to
do anything, which would or might in its reasonable opinion constitute a breach of:
(i)
(ii)
any law or regulation;
any fiduciary duty; or
(iii)
any duty of confidentiality.
If a Party fails to confirm whether or not it is a FATCA Exempt Party or to supply forms, documentation or other information requested
in accordance with paragraph (a)(i) or (a)(ii) above (including, for the avoidance of doubt, where paragraph (c) above applies), then
such Party shall be treated for the purposes of the Finance Documents (and payments under them) as if it is not a FATCA Exempt Party
until such time as the Party in question provides the requested confirmation, forms, documentation or other information.
If a Lender fails to supply any withholding certificate, withholding statement, document, authorisation, waiver or information in
accordance with paragraph (a) above, or any withholding certificate, withholding statement, document, authorisation, waiver or
information provided by a Lender to the Agent is or becomes materially inaccurate or incomplete, then such Lender shall indemnify the
Agent, within three Business Days of demand, against any cost, loss, Tax or liability (including, without limitation, for negligence or
any other category of liability whatsoever) incurred by the Agent (including any related interest and penalties) in acting as Agent under
the Finance Documents as a result of such failure.
If, in accordance with paragraph (a) above, the Agent provides the Borrower with sufficient information to determine its withholding
obligations under FATCA, but the Borrower fails to withhold as required by FATCA, the Borrower shall indemnify the Agent, within
three Business Days of demand, against any cost, loss, Tax or liability (including, without limitation, for negligence or any other
category of liability whatsoever) incurred by the Agent (including any related interest and penalties) in acting as Agent under the
Finance Documents as a result of such failure.
(b)
(c)
(d)
(e)
(f)
12.2
FATCA Deduction
(a)
(b)
Each Party may make any FATCA Deduction it is required to make by FATCA, and any payment required in connection with that
FATCA Deduction, and no Party shall be required to increase any payment in respect of which it makes such a FATCA Deduction or
otherwise compensate the recipient of the payment for that FATCA Deduction.
Each Party shall as soon as reasonably practicable, upon becoming aware that it must make a FATCA Deduction (or that there is any
change in the rate or the basis of such FATCA Deduction), notify the Party to whom it is making the payment and, in addition, shall
notify the Borrower and the Agent and the Agent shall notify the other Finance Parties.
27
13
Increased Costs
13.1
Increased costs
(a)
Subject to clause 13.3 (Exceptions) the Borrower shall, within three Business Days of a demand by the Agent, pay for the account of a
Finance Party the amount of any Increased Costs incurred by that Finance Party or any of its Affiliates as a result of (i) the introduction
of or any change in (or in the interpretation, administration or application of) any law or regulation or (ii) compliance with any law or
regulation made after the date of this Agreement. The terms “law” and “regulation” in this paragraph (a) shall include any law or
regulation concerning capital adequacy, prudential limits, liquidity, reserve assets or Tax.
(b)
In this Agreement,
Increased Costs means:
(i)
a reduction in the rate of return from a Facility or on a Finance Party’s (or its Affiliate’s) overall capital (including as a result of
any reduction in the rate of return on capital brought about by more capital being required to be allocated by such Finance
Party);
(ii)
an additional or increased cost; or
(iii)
a reduction of any amount due and payable under any Finance Document,
which is incurred or suffered by a Finance Party or any of its Affiliates to the extent that it is attributable to the undertaking, funding or
performance by such Finance Party of any of its obligations under any Finance Document or any participation of such Finance Party in
any Loan or Unpaid Sum.
Basel III means:
(i)
(ii)
the agreements on capital requirements, a leverage ratio and liquidity standards contained in “Basel III: A global regulatory
framework for more resilient banks and banking systems”, “Basel III: International framework for liquidity risk measurement,
standards and monitoring” and “Guidance for national authorities operating the countercyclical capital buffer” published by the
Basel Committee on Banking Supervision in December 2010, each as amended, supplemented or restated;
the rules for global systemically important banks contained in “Global systemically important banks: assessment methodology
and the additional loss absorbency requirement – Rules text” published by the Basel Committee on Banking Supervision in
November 2011, as amended, supplemented or restated; and
(iii)
any further guidance or standards published by the Basel Committee on Banking Supervision relating to “Basel III”,
in each case, in the form existing on the date of this Agreement.
13.2
Increased cost claims
(a)
(b)
A Finance Party (other than the Agent) intending to make a claim pursuant to clause 13.1 (Increased costs) shall notify the Agent of the
event giving rise to the claim, following which the Agent shall promptly notify the Borrower.
Each Finance Party (other than the Agent) shall, as soon as practicable after a demand by the Agent, provide a certificate confirming the
amount of its Increased Costs.
13.3 Exceptions
Clause 13.1 (Increased costs) does not apply to the extent any Increased Cost which is:
(a)
attributable to a Tax Deduction required by law to be made by the Borrower;
28
(b)
(c)
(d)
(e)
(f)
(g)
(h)
attributable to a FATCA Deduction required to be made by a Party;
attributable to any payment which a Finance Party is required to make of or on account of Tax on or in relation to any sum received or
receivable under the Finance Documents;
attributable to any stamp duty, registration or similar taxes or any Indirect Tax;
attributable to compliance by the relevant Finance Party or its Affiliates with the reserve requirement ratio or any similar measures
imposed by the People’s Bank of China;
attributable to any penalty having been imposed by the relevant central bank or monetary or fiscal authority upon the Finance Party (or
any Affiliate of it) by virtue of its having exceeded any country or sector borrowing limits or breached any directives imposed upon it;
attributable to the wilful breach by the relevant Finance Party or its Affiliates of any law or regulation; or
attributable to the implementation or application or compliance with Basel III or any other law or regulation which implements Basel III
(whether such implementation, application or compliance is by a government, regulator, Finance Party or any of its Affiliates or
otherwise).
14
Mitigation by the Lenders
14.1 Mitigation
(a)
Each Finance Party shall, in consultation with the Borrower, take all reasonable steps to mitigate any circumstances which arise and
which would result in any amount becoming payable under or pursuant to, or cancelled pursuant to, any of clause 7.1 (Illegality), clause
12 (FATCA) or clause 13 (Increased Costs), including:
(i)
(ii)
providing such information as the Borrower may reasonably request in order to permit the Borrower to determine its entitlement
to claim any exemption or other relief (whether pursuant to a double taxation treaty or otherwise) from any obligation to make a
Tax Deduction; and
in relation to any circumstances which arise following the date of this Agreement, transferring its rights and obligations under
the Finance Documents to another Affiliate or Facility Office.
(b)
Paragraph (a) above does not in any way limit the obligations of the Borrower under the Finance Documents.
14.2 Limitation of liability
(a)
(b)
The Borrower shall promptly indemnify each Finance Party for all costs and expenses reasonably incurred by that Finance Party as a
result of steps taken by it under clause 14.1 (Mitigation).
A Finance Party is not obliged to take any steps under clause 14.1 (Mitigation) if, in the opinion of that Finance Party (acting
reasonably), to do so might be prejudicial to it.
14.3 Conduct of business by the Finance Parties
No provision of this Agreement will:
(a)
(b)
(c)
interfere with the right of any Finance Party to arrange its affairs (tax or otherwise) in whatever manner it thinks fit;
oblige any Finance Party to investigate or claim any credit, relief, remission or repayment available to it or the extent, order and manner
of any claim; or
oblige any Finance Party to disclose any information relating to its affairs (tax or otherwise) or any computations in respect of Tax.
29
15
Other Indemnities
15.1 Currency indemnity
(a)
If any sum due from the Borrower under the Finance Documents (a Sum), or any order, judgment or award given or made in relation to
a Sum, has to be converted from the currency (the First Currency) in which that Sum is payable into another currency (the Second
Currency) for the purpose of:
(i)
(ii)
making or filing a claim or proof against the Borrower; or
obtaining or enforcing an order, judgment or award in relation to any litigation or arbitration proceedings,
the Borrower shall as an independent obligation, within three Business Days of demand, indemnify each Finance Party to whom that
Sum is due against any cost, loss or liability arising out of or as a result of the conversion including any discrepancy between (A) the
rate of exchange used to convert that Sum from the First Currency into the Second Currency and (B) the rate or rates of exchange
available to that person at the time of its receipt of that Sum.
(b)
The Borrower waives any right it may have in any jurisdiction to pay any amount under the Finance Documents in a currency or
currency unit other than that in which it is expressed to be payable.
15.2 Other indemnities
The Borrower shall, within three Business Days of demand, indemnify each Finance Party against any cost, loss or liability incurred by that
Finance Party as a result of:
(a)
(b)
(c)
(d)
(e)
the occurrence of any Event of Default;
the Information Memorandum or any other information produced or approved by the Borrower being or being alleged to be misleading
and/or deceptive in any respect;
any enquiry from, investigation by, subpoena (or similar order) from or litigation in, in each case, any court or governmental agency
with competent jurisdiction with respect to the Borrower or with respect to the transactions financed under this Agreement;
a failure by the Borrower to pay any amount due under a Finance Document on its due date or in the relevant currency, including any
cost, loss or liability arising as a result of clause 25 (Sharing among the Finance Parties);
funding, or making arrangements to fund, its participation in a Loan requested by the Borrower in a Utilisation Request but not made by
reason of the operation of any one or more of the provisions of this Agreement (other than by reason of default or negligence by that
Finance Party alone); or
(f)
a Loan (or part of a Loan) not being prepaid in accordance with a notice of prepayment given by the Borrower.
15.3
Indemnity to the Agent
(a)
The Borrower shall promptly indemnify the Agent against any cost, loss or liability incurred by the Agent (acting reasonably) as a result
of:
(i)
(ii)
(iii)
investigating any event which it reasonably believes is a Default;
acting or relying on any notice, request or instruction which it reasonably believes to be genuine, correct and appropriately
authorised; or
instructing lawyers, accountants, tax advisers, surveyors or other professional advisers or experts as permitted under this
Agreement.
30
(b)
The indemnity given by the Borrower under or in connection with this Agreement is a continuing obligation, independent of the
Borrower’s other obligations under or in connection with this Agreement or any other Finance Document and survives after this
Agreement is terminated. It is not necessary for a person to pay any amount or incur any expense before enforcing an indemnity under
or in connection with this Agreement or any other Finance Document.
16
Costs and Expenses
16.1 Transaction expenses
The Borrower shall, within three Business Days of demand, pay the Administrative Parties the amount of all costs and expenses (including
without limitation legal fees in such amounts agreed by the Borrower) reasonably incurred by any of them in connection with the negotiation,
preparation, printing, execution of any other Finance Documents executed after the date of this Agreement.
16.2 Amendment costs
If (a) the Borrower requests an amendment, waiver or consent or (b) an amendment is required pursuant to clause 26.9 (Change of currency) or
clause 32.4 (Replacement of Screen Rate), the Borrower shall, within three Business Days of demand, reimburse the Agent for the amount of all
costs and expenses (including legal fees in such amounts agreed by the Borrower) reasonably incurred by the Agent in responding to, evaluating,
negotiating or complying with that request or requirement.
16.3 Enforcement costs
The Borrower shall, within three Business Days of demand, pay to each Finance Party the amount of all costs and expenses (including legal fees)
incurred by that Finance Party in connection with the enforcement of, or the preservation of any rights under, any Finance Document.
17
Representations
The Borrower makes the representations and warranties set out in this clause 17 to each Finance Party on the date of this Agreement.
17.1
Status
(a)
(b)
(c)
(d)
It is a corporation, duly incorporated, validly existing and in good standing under the law of its jurisdiction of incorporation.
It and each other member of the Group has the power to own its assets and carry on its business as it is being conducted.
It is acting as principal for its own account and not as agent or trustee in any capacity on behalf of any party in relation to the Finance
Documents.
It is not a US Tax Obligor.
17.2 Binding obligations
The obligations expressed to be assumed by it in each Finance Document are, subject to any general principles of law limiting its obligations
which are specifically referred to in any legal opinion delivered in accordance with clause 4 (Conditions of Utilisation), legal, valid, binding and
enforceable obligations.
17.3 Non-conflict with other obligations
The entry into and performance by it of, and the transactions contemplated by, the Finance Documents do not and will not conflict with:
(a)
(b)
any law or regulation applicable to it;
its or any other member of the Group’s constitutional documents; or
31
(c)
any agreement or instrument binding upon it or any other member of the Group or any of its or any other member of the Group’s assets.
17.4
Power and authority
It has the power to enter into, perform and deliver, and has taken all necessary action to authorise its entry into, performance and delivery of, the
Finance Documents to which it is a party and the transactions contemplated by those Finance Documents.
17.5 Validity and admissibility in evidence
All Authorisations required or desirable:
(a)
(b)
(c)
to enable it lawfully to enter into, exercise its rights and comply with its obligations in the Finance Documents to which it is a party;
to make the Finance Documents to which it is a party admissible in evidence in its jurisdiction of incorporation; and
for it and each other member of the Group to carry on their business, and which are material, have been obtained or effected and are in
full force and effect.
17.6 Governing law and enforcement
(a)
(b)
The choice of Hong Kong law as the governing law of the Finance Documents will be recognised and enforced in its jurisdiction of
incorporation.
Any judgment obtained in Hong Kong in relation to a Finance Document will be recognised and enforced in its jurisdiction of
incorporation.
17.7 Deduction of Tax
It is not required under the law applicable where it is incorporated or resident or at the address specified in this Agreement to make any Tax
Deduction from any payment it may make under any Finance Document.
17.8 No filing or stamp taxes
Under the law of its jurisdiction of incorporation it is not necessary that the Finance Documents be filed, recorded or enrolled with any court or
other authority in that jurisdiction or that any stamp, registration or similar tax be paid on or in relation to the Finance Documents or the
transactions contemplated by the Finance Documents except that stamp duty will be payable in the Cayman Islands in respect of any original
Finance Document that is executed in the Cayman Islands, brought into the Cayman Islands or produced before a court of the Cayman Islands.
17.9 No default
(a)
(b)
No Event of Default is continuing or might reasonably be expected to result from the making of any Utilisation.
No other event or circumstance is outstanding which constitutes a default under any other agreement or instrument which is binding on
it or any other member of the Group or to which its (or any of other member of the Group’s) assets are subject which might have a
Material Adverse Effect.
17.10 No misleading information
(a)
Any factual information contained in or provided by any member of the Group for the purposes of the Information Memorandum was
true and accurate in all material respects as at the date it was provided or as at the date (if any) at which it is stated.
32
(b)
(c)
(d)
Any financial projections contained in the Information Memorandum have been prepared on the basis of recent historical information
and on the basis of reasonable assumptions.
Nothing has occurred or been omitted from the Information Memorandum and no information has been given or withheld that results in
the information contained in the Information Memorandum being untrue or misleading in any material respect.
All information (other than the Information Memorandum) supplied by any member of the Group was true, complete and accurate in all
material respects as at the date it was given and was not misleading in any respect.
17.11 Financial statements
(a)
(b)
Its financial statements most recently supplied to the Agent (which, at the date of this Agreement, are its Original Financial Statements)
were prepared in accordance with GAAP consistently applied save to the extent expressly disclosed in such financial statements.
Its financial statements most recently supplied to the Agent (which, at the date of this Agreement, are its Original Financial Statements)
give a true and fair view of (if audited) or fairly represent (if unaudited) its consolidated financial condition and operations for the
period to which they relate, save to the extent expressly disclosed in such financial statements.
(c)
There has been no material adverse change in the business or consolidated financial condition of the Group since 31 December 2020.
17.12 Pari passu ranking
Its payment obligations under the Finance Documents rank at least pari passu with the claims of all of its other unsecured and unsubordinated
creditors, except for obligations mandatorily preferred by law applying to companies generally.
17.13 No proceedings
(a)
(b)
No litigation, arbitration or administrative proceedings of or before any court, arbitral body or agency which, if adversely determined,
might reasonably be expected to have a Material Adverse Effect has or have (to the best of its knowledge and belief) been started or
threatened against it or any other member of the Group.
No judgment or order of a court, arbitral body or agency which might reasonably be expected to have a Material Adverse Effect has (to
the best of its knowledge and belief) been made against it or any other member of the Group.
17.14 Environmental Laws
(a)
(b)
It and each other member of the Group is in compliance with clause 20.8 (Environmental compliance) and no circumstances have
occurred which would prevent such compliance.
No Environmental Claim has been started or threatened against any member of the Group which would reasonably be expected to have
a Material Adverse Effect.
17.15 Authorised signatures
Any person specified as its authorised signatory under Schedule 2 (Conditions Precedent) or clause 18.4(e) (Information: miscellaneous) is
authorised to sign Utilisation Requests and other notices on its behalf.
33
17.16 Sanctions
None of the Borrower, any of its Subsidiaries, any director or officer, or any employee, agent, or Affiliate, of the Borrower or any of its
Subsidiaries is a person that is, or is owned or controlled by persons that are:
(a)
(b)
the target or subject of any Sanctions; or
located, organised or resident in a country or territory that is, or whose government is, the target or subject of Sanctions, including,
without limitation, currently, the Crimea region, Cuba, Iran, North Korea and Syria.
17.17 Anti-bribery and Corruption Law
None of the Borrower, nor to the knowledge of the Borrower, any director, officer, agent, employee, Affiliate or other person acting on behalf of
the Borrower or any of its Subsidiaries is aware of or has taken any action, directly or indirectly, that would result in a violation by such persons
of any applicable Anti-Bribery and Corruption Laws. Furthermore, the Borrower and, to the knowledge of the Borrower, its Affiliates have
conducted their businesses in compliance with Anti-Bribery and Corruption Laws and have instituted and maintained policies and procedures
designed to ensure, and which are reasonably expected to continue to ensure, continued compliance with Anti-Bribery and Corruption Laws.
17.18 Anti-money laundering
The operations of the Borrower, each of its Subsidiaries and its and their Affiliates (each such person, a Relevant Person) are and have been
conducted at all times in material compliance with applicable financial recordkeeping and reporting requirements and the money laundering
statutes and the rules and regulations thereunder and any related or similar rules, regulations or guidelines, issued, administered or enforced by
any governmental agency having jurisdiction over any Relevant Person (collectively, the Money Laundering Laws) and no action, suit or
proceeding by or before any court or governmental agency, authority or body or any arbitrator involving any Relevant Person or any of their
respective directors, officers, agents or employees with respect to the Money Laundering Laws is pending or, to the best knowledge of the
Borrower, threatened.
17.19 Group Structure Chart
The Group Structure Chart delivered to the Agent pursuant to clause 4.1 (Initial conditions precedent) or, as the case may be, clause 18.2
(Compliance Certificate) is true, complete and accurate in all material respects and shows the Borrower and each of its Significant Subsidiaries,
including its current name and jurisdiction of incorporation as at the date of this Agreement or (in the case of a Group Structure Chart delivered
pursuant to clause 18.2 (Compliance Certificate)) the date on which such Group Structure Chart is delivered to the Agent.
17.20 Existing BOC Facility
Subject to the Existing BOC Facility having been fully prepaid no later than the first Utilisation Date, the Borrower has no obligation to prepay
the Existing BOC Facility as a result of the entry by the Borrower into the Finance Documents and the transactions completed hereunder.
17.21 Repetition
(a)
The Repeating Representations are deemed to be made by the Borrower by reference to the facts and circumstances then existing on:
(i)
(ii)
the date of each Utilisation Request and the first day of each Interest Period; and
the date of the Incremental Facility Notice and the Incremental Facility Establishment Date.
(b)
The representation set out in clause 17.19 (Group Structure Chart) are deemed to be made by the Borrower on each date such Group
Structure Chart is provided to the Agent.
18
Information Undertakings
The undertakings in this clause 18 remain in force from the date of this Agreement for so long as any amount is outstanding under the Finance
Documents or any Commitment is in force.
34
18.1
Financial statements
The Borrower shall supply to the Agent in sufficient copies for all the Lenders:
(a)
(b)
as soon as the same become available, but in any event within 180 days after the end of each of its financial years, its audited
consolidated financial statements for that financial year accompanied with unqualified opinions from the auditors; and
as soon as the same become available, but in any event within 120 days after the end of each quarter of each of its financial years, its
consolidated financial statements for that financial quarter.
The Borrower may satisfy its obligation to deliver such financial statements by providing a link to a website where the same are publicly
available, provided that the Agent is able to open the link and download a copy of such financial statements.
18.2 Compliance Certificate
(a)
(b)
(c)
The Borrower shall supply to the Agent, with each set of financial statements delivered pursuant to clause 18.1(a) or 18.1(b) (Financial
statements) which relate to a period ending on the last day of a Relevant Period (as defined in clause 19.1 (Financial definitions), a
Compliance Certificate setting out (in reasonable detail) computations as to compliance with clause 19 (Financial Covenants) as at the
date as at which those financial statements were drawn up
The Compliance Certificate, accompanying the financial statements delivered pursuant to clause 18.1(a) (Financial statements) for that
Relevant Period, shall have attached to it an updated Group Structure Chart. The Borrower may satisfy its obligation to deliver such
updated Group Structure Chart by providing a link to a website where the same are publicly available, provided that the Agent is able to
open the link and download a copy of such Group Structure Chart.
Each Compliance Certificate delivered pursuant to paragraph (a) above shall be signed by one director or an authorised signatory of the
Borrower.
18.3 Requirements as to financial statements
(a)
(b)
Each set of financial statements delivered by the Borrower pursuant to clause 18.1 (Financial statements) shall be certified by a director
of the Borrower as giving a true and fair view of (in the case of any such financial statements which are audited) or fairly representing
(in the case of any such financial statements which are unaudited) its financial condition as at the date as at which those financial
statements were drawn up.
The Borrower shall procure that each set of financial statements delivered pursuant to clause 18.1 (Financial statements) is prepared
using GAAP, accounting practices and financial reference periods consistent with those applied in the preparation of the Original
Financial Statements unless, in relation to any set of financial statements, it notifies the Agent that there has been a change in GAAP,
the accounting practices or reference periods and its auditors deliver to the Agent:
(i)
(ii)
a description of any change necessary for those financial statements to reflect the GAAP, accounting practices and reference
periods upon which the Original Financial Statements were prepared; and
sufficient information, in form and substance as may be reasonably required by the Agent, to enable the Lenders to determine
whether clause 19 (Financial Covenants) has been complied with and make an accurate comparison between the financial
position indicated in those financial statements and the Original Financial Statements.
Any reference in this Agreement to those financial statements shall be construed as a reference to those financial statements as adjusted
to reflect the basis upon which the Original Financial Statements were prepared.
35
18.4
Information: miscellaneous
The Borrower shall supply to the Agent (in sufficient copies for all the Finance Parties, if the Agent so requests):
(a)
(b)
(c)
(d)
(e)
all documents dispatched by the Borrower to its shareholders (or any class of them) or its creditors generally at the same time as they
are despatched;
promptly upon becoming aware of them, the details of any litigation, arbitration or administrative proceedings which are current,
threatened or pending against any member of the Group, and which might, if adversely determined, have a Material Adverse Effect;
promptly upon becoming aware of them, the details of any judgment or order of a court, arbitral body or agency which is made against
any member of the Group, and which might have a Material Adverse Effect;
promptly, such further information regarding the financial condition, business and operations of any member of the Group as any
Finance Party (through the Agent) may reasonably request; and
promptly, notice of any change in authorised signatories of the Borrower signed by a director or company secretary accompanied by
specimen signatures of any new authorised signatories.
18.5 Notification of default
(a)
(b)
The Borrower shall notify the Agent of any Default (and the steps, if any, being taken to remedy it) promptly upon becoming aware of
its occurrence.
Promptly upon a request by the Agent, the Borrower shall supply to the Agent a certificate signed by two of its directors or senior
officers on its behalf certifying that no Default is continuing (or if a Default is continuing, specifying the Default and the steps, if any,
being taken to remedy it).
18.6 Use of websites
(a)
The Borrower may satisfy its obligation under this Agreement to deliver any information in relation to those Lenders (the Website
Lenders) who accept this method of communication by posting this information onto an electronic website designated by the Borrower
and the Agent (the Designated Website) if:
(i)
(ii)
the Agent expressly agrees (after consultation with each of the Lenders) that it will accept communication of the information by
this method;
both the Borrower and the Agent are aware of the address of and any relevant password specifications for the Designated
Website; and
(iii)
the information is in a format previously agreed between the Borrower and the Agent.
If any Lender (a Paper Form Lender) does not agree to the delivery of information electronically then the Agent shall notify the
Borrower accordingly and the Borrower shall supply the information to the Agent (in sufficient copies for each Paper Form Lender) in
paper form. In any event the Borrower shall supply the Agent with at least one copy in paper form of any information required to be
provided by it.
The Agent shall supply each Website Lender with the address of and any relevant password specifications for the Designated Website
following designation of that website by the Borrower and the Agent.
The Borrower shall promptly upon becoming aware of its occurrence notify the Agent if:
(i)
(ii)
the Designated Website cannot be accessed due to technical failure;
the password specifications for the Designated Website change;
36
(b)
(c)
(iii)
(iv)
(v)
any new information which is required to be provided under this Agreement is posted onto the Designated Website;
any existing information which has been provided under this Agreement and posted onto the Designated Website is amended; or
the Borrower becomes aware that the Designated Website or any information posted onto the Designated Website is or has been
infected by any electronic virus or similar software.
If the Borrower notifies the Agent under paragraph (c)(i) or paragraph (c)(v) above, all information to be provided by the Borrower
under this Agreement after the date of that notice shall be supplied in paper form unless and until the Agent and each Website Lender is
satisfied that the circumstances giving rise to the notification are no longer continuing.
(d)
Any Website Lender may request, through the Agent, one paper copy of any information required to be provided under this Agreement
which is posted onto the Designated Website. The Borrower shall comply with any such request within ten Business Days.
18.7
“Know your customer” checks
(a)
(b)
The Borrower shall promptly upon the request of the Agent supply, or procure the supply of, such documentation and other evidence as
is reasonably requested by the Agent (for itself or on behalf of any Lender (including for any Lender on behalf of any prospective new
Lender)) in order for the Agent, such Lender or any prospective new Lender to conduct all “know your customer” and other similar
procedures that it is required (or deems desirable) to conduct.
Each Lender shall promptly upon the request of the Agent supply, or procure the supply of, such documentation and other evidence as is
reasonably requested by the Agent (for itself) in order for the Agent to conduct all “know your customer” and other similar procedures
that it is required (or deems desirable) to conduct.
19
Financial Covenants
The undertakings in this clause 19 remain in force from the date of this Agreement for so long as any amount is outstanding under the Finance
Documents or any Commitment is in force.
19.1
Financial definitions
In this clause 19:
Consolidated Cash means, at any time, the aggregate of:
(a)
such cash and cash equivalents which have been treated as “cash and cash equivalents” in the latest published consolidated balance
sheet of the Borrower; and
(b)
such bank deposits which have been treated as “restricted cash” in the latest published consolidated balance sheet of the Borrower.
Consolidated EBITDA means, for any Relevant Period, the consolidated operating profits of the Borrower for that Relevant Period before
taxation:
(a)
(b)
(c)
(d)
before deducting any Consolidated Finance Charges;
before deducting any amount attributable to amortisation of intangible assets, land use rights and right of use assets or depreciation of
tangible assets;
before taking into account any items treated as exceptional or extraordinary items;
before taking into account any share-based compensation to the extent included in the related operating expense categories in
accordance with the applicable accounting principles; and
37
(e)
before taking into account any gains or losses (whether realised or unrealised) deriving from any Treasury Transaction (to the extent
such Treasury Transaction has been accounted for on hedge accounting basis),
in each case, to the extent added, deducted or taken into account, as the case may be, for the purposes of determining the profits of the Borrower
on a consolidated basis from ordinary activities before taxation.
Consolidated Finance Charges means, for any Relevant Period, the aggregate amount of interest, commission, fees, discounts, prepayment
penalties or premiums and other finance payments in respect of Consolidated Total Borrowings whether accrued, paid or payable and whether or
not capitalised by any member of the Group in respect of that Relevant Period:
(a)
(b)
(c)
excluding any such obligations owed to any other member of the Group;
including the interest element of leasing and hire purchase payments; and
including any amounts paid, payable or accrued by any member of the Group to counterparties under any interest rate hedging
instrument.
Consolidated Net Finance Charges means at any time the Consolidated Finance Charges excluding:
(a)
(b)
any amounts paid, payable or accrued by counterparties to any member of the Group under any interest rate hedging instrument; and
any interest paid, payable to or accrued to the benefit of any member of the Group on any deposit or bank account.
Consolidated Net Interest-bearing Liabilities means at any time the Consolidated Total Borrowings less Consolidated Cash, short term
investment and long-term held to maturity debt securities.
Consolidated Total Assets means, at any time, the aggregate of:
(a)
(b)
the amount of those assets of the Borrower on a consolidated basis which have been treated as Total Non-current Assets; and
the amount of those assets of the Borrower on a consolidated basis which have been treated as “total current assets” in the latest
published consolidated balance sheet of the Borrower.
Consolidated Total Borrowings means, at any time, the aggregate outstanding principal, capital or nominal amount and any fixed or minimum
premium payable on prepayment or redemption of any indebtedness for or in respect of Financial Indebtedness (other than in respect of
paragraph (g) of the definition of Financial Indebtedness) of the Borrower on a consolidated basis.
Consolidated Total Liabilities means, at any time, the aggregate of the total liabilities of the Borrower on a consolidated basis in the latest
published consolidated balance sheet of the Borrower.
Relevant Period means each period of 12 months ending on the last day of the Borrower’s financial year and each period of 12 months ending
on the last day of the first half of the Borrower’s financial year.
Total Non-current Asset means, in respect of any Relevant Period, the “total assets” as shown in the latest published consolidated balance sheet
of the Borrower in respect of that Relevant Period minus the “total current assets” as shown in the latest published consolidated balance sheet of
the Borrower in respect of that Relevant Period.
Treasury Transaction means any derivative transaction entered into in connection with protection against or benefit from fluctuation in any rate
or price.
38
19.2
Financial condition
The Borrower shall ensure that:
(a)
(b)
(c)
(d)
Consolidated Total Assets shall be maintained at all times at a minimum of RMB100,000,000,000;
Consolidated Total Liabilities shall at all times not exceed 80 per cent. of its Consolidated Total Assets;
Consolidated Net Interest-bearing Liabilities in respect of any Relevant Period shall not be more than 5 times the Consolidated
EBITDA for that Relevant Period; and
Consolidated EBITDA in respect of any Relevant Period shall not be less than 3 times the Consolidated Net Finance Charges for that
Relevant Period, provided that this clause 19.2(d) shall be deemed to have been satisfied if the Consolidated Finance Charges in
respect of any Relevant Period is less than the interest income for that Relevant Period.
19.3
Financial testing
The financial covenants set out in clause 19.2 (Financial condition) shall be tested half-yearly by reference to the financial statements submitted
by the Borrower under clause 18.1 (Financial statements):
(a)
(b)
(in respect of any testing to be conducted at the end of the financial half-year of the Borrower) the financial statements delivered
pursuant to clause 18.1(b) (Financial statements); and
(in respect of any testing to be conducted at the end of the financial year of the Borrower) the financial statements delivered pursuant to
of clause 18.1(a) (Financial statements),
and, in each case, the Compliance Certificate delivered pursuant to clause 18.2 (Compliance Certificate) in respect of the Relevant Period.
20
General Undertakings
The undertakings in this clause 20 remain in force from the date of this Agreement for so long as any amount is outstanding under the Finance
Documents or any Commitment is in force.
20.1 Authorisations
The Borrower shall promptly:
(a)
(b)
obtain, comply with and do all that is necessary to maintain in full force and effect; and
supply certified copies to the Agent of,
any Authorisation required to enable it to perform its obligations under the Finance Documents and to ensure the legality, validity, enforceability
or admissibility in evidence in its jurisdiction of incorporation of any Finance Document.
20.2 Compliance with laws
The Borrower shall comply in all respects with all laws and regulations (including, but not limited to, the Money Laundering Laws, Anti-Bribery
and Corruption Laws and Sanctions) to which it may be subject, if failure so to comply would materially impair its ability to perform its
obligations under the Finance Documents.
20.3
Pari passu ranking
The Borrower shall ensure that its payment obligations under the Finance Documents will constitute its direct, unconditional, unsecured and
unsubordinated obligations and will rank and continue to rank at least pari passu with the claims of all of its other unsecured and unsubordinated
creditors, except for obligations mandatorily preferred by law applying to companies generally.
39
20.4 Negative pledge
In this clause 20.4, Quasi-Security means an arrangement or transaction described in paragraph (b) below.
(a)
The Borrower shall not (and the Borrower shall ensure that no other member of the Group will) create or permit to subsist any Security
over any of its assets, or over any shares or any other form of equity and economic interests in, or assets of, any other member of the
Group.
(b)
The Borrower shall not (and the Borrower shall ensure that no other member of the Group will):
(i)
(ii)
(iii)
(iv)
sell, transfer or otherwise dispose of any of its assets on terms whereby they are or may be leased to or re-acquired by the
Borrower or any other member of the Group;
sell, transfer or otherwise dispose of any of its receivables on recourse terms;
enter into or permit to subsist any title retention arrangement;
enter into or permit to subsist any arrangement under which money or the benefit of a bank or other account may be applied,
set-off or made subject to a combination of accounts; or
(v)
enter into or permit to subsist any other preferential arrangement having a similar effect,
in circumstances where the arrangement or transaction is entered into primarily as a method of raising Financial Indebtedness or of
financing the acquisition of an asset.
(c)
Paragraphs (a) and (b) above do not apply to:
(i)
(ii)
(iii)
(iv)
(v)
any Security or Quasi-Security over or affecting any asset, shares or any other form of equity and economic interests of any
member of the Group existing as at the date of this Agreement except to the extent the principal amount secured by that Security
or Quasi- Security exceeds the amount outstanding as at the date of this Agreement;
any Security or Quasi-Security created over the assets of the Borrower or the shares or any other form of equity and economic
interests in, or assets of, any other member of the Group, which is extended equally and rateably to the Finance Parties to the
satisfaction of the Agent (acting on the instructions of the Majority Lenders);
any netting or set-off arrangement entered into by any member of the Group in the ordinary course of its banking arrangements
for the purpose of netting debit and credit balances;
any lien arising by operation of law and in the ordinary course of trading provided that the debt which is secured thereby is
paid when due or contested in good faith by appropriate proceedings and properly provisioned;
any Security or Quasi-Security over or affecting any asset of a member of the Group created in connection with any financing
provided by, amongst others, Bank of China Limited, Shanghai Branch for the purpose of refinancing the acquisition of
Skyscanner Holdings Limited by the relevant member of the Group;
(vi)
any Security or Quasi-Security created pursuant to any Finance Document;
(vii)
any Security or Quasi-Security arising in the ordinary course of day-to-day business of the Group and not arising as a result of
any default or omission by any member of the Group;
(viii)
any Security or Quasi-Security created in relation to any exchangeable senior notes issued or to be issued by the Borrower;
(ix)
any Security or Quasi-Security over any assets securing indebtedness the principal amount of which (when aggregated with the
principal amount of any other indebtedness which has the benefit of Security or Quasi-Security given by any member of the
Group other than any permitted under paragraphs (i) to (viii) above) does not exceed an amount equal to 7.5 per cent. of
Consolidated Total Assets set out in the most recent Compliance Certificate delivered pursuant to clause 18.2 (Compliance
Certificate) or, if a Compliance Certificate has not yet been delivered thereunder, in the Original Financial Statements; or
40
(x)
any Security or Quasi-Security created over the assets of the Borrower or over the shares or any other form of equity and
economic interests in, or assets of any other member of the Group with the prior written consent of the Agent (acting on the
instructions of the Majority Lenders).
20.5 Disposals
(a)
(b)
The Borrower shall not (and the Borrower shall ensure that no other member of the Group will), enter into a single transaction or a
series of transactions (whether related or not) and whether voluntary or involuntary to sell, lease, transfer or otherwise dispose of any
asset or revenues, or enter into any agreement or arrangement to sell, lease, transfer or otherwise dispose of any assets or revenues.
Paragraph (a) above does not apply to any sale, lease, transfer or other disposal, or the entry into any agreement or arrangement in
respect of a sale, lease, transfer or other disposal:
(i)
(ii)
(iii)
(iv)
(v)
made in the ordinary course of trading of the disposing entity at arm’s length and on normal commercial terms;
of assets in exchange for other assets comparable or superior as to type, value and quality and for a similar purpose (other than
an exchange of a non-cash asset for cash) on arm’s length terms;
of assets by one member of the Group (other than the Borrower) to any other member of the Group;
of assets by the Borrower to any other member of the Group (the Transferee) on arm’s length terms provided that that the
Transferee will remain a member of the Group after that sale, lease, transfer or disposal; or
made on normal commercial terms where the higher of the market value or consideration receivable (whether alone or when
aggregated with the higher of the market value or consideration receivable for any other sale, lease, transfer or other disposal by
members of the Group, other than any permitted under paragraphs (i) to (iv) above) does not exceed 10 per cent. of the
Consolidated Total Assets set out in the most recent Compliance Certificate delivered pursuant to clause 18.2 (Compliance
Certificate) or, if a Compliance Certificate has not yet been delivered thereunder, in the Original Financial Statements.
20.6 Mergers
The Borrower shall not (and the Borrower shall ensure that no other member of the Group will) enter into any amalgamation, demerger, merger
or corporate reconstruction (each a Merger) except:
(a)
mergers between Subsidiaries of the Borrower, which, in the opinion of the Lenders, will not impair the ability of the Borrower to fulfil
its obligations under the Finance Documents; or
(b)
mergers provided in each case that:
(i)
such Merger is in respect of assets or businesses in the same nature and of the same scope as the Group’s business as conducted
on the date of this Agreement;
(ii)
the member of the Group involved in the Merger is the surviving entity; and
(iii)
there is no Material Adverse Effect at the time or, or arising out of, such Merger.
41
20.7 Change of business
The Borrower shall procure that no substantial change is made to the general nature of the business of the Borrower or the Group from that
carried on at the date of this Agreement save to the extent the Group is permitted to acquire unrelated businesses pursuant to clause 20.10
(Acquisitions).
20.8 Environmental compliance
The Borrower shall (and the Borrower shall ensure that each member of the Group will) comply in all material respects with all Environmental
Law, obtain and maintain any Environmental Permits and take all reasonable steps in anticipation of known or expected future changes to or
obligations under Environmental Law or any Environmental Permits save where such non-compliance could not reasonably be expected to have
a Material Adverse Effect.
20.9 Environmental Claims
The Borrower shall inform the Agent in writing as soon as reasonably practicable upon becoming aware of:
(a)
(b)
any Environmental Claim which has been commenced or (to the best of the Borrower’s knowledge and belief) is threatened against any
member of the Group; or
any facts or circumstances which will or might reasonably be expected to result in any Environmental Claim being commenced or
threatened against any member of the Group,
in each case where such Environmental Claim might reasonably be expected, if determined against that member of the Group, to
have a Material Adverse Effect.
20.10 Acquisitions
(a)
The Borrower shall not (and shall procure that no member of the Group will) acquire any company, business, assets or undertaking or
make any investment.
(b)
Paragraph (a) above does not apply to an acquisition or investment:
(i)
(ii)
(A)
which is in respect of assets or businesses in the same nature and of the same scope as the Group’s business as
conducted on the date of this Agreement; and
(B)
where there is no Material Adverse Effect at the time or, or arising out of, such acquisition or investment; or
the value of which acquisition or investment (when aggregated with the value of all other acquisitions and investments permitted
under this paragraph (ii) and made in the same financial year) does not exceed an amount equal to 7.5 per cent. of the
Consolidated Total Assets set out in the most recent Compliance Certificate delivered pursuant to clause 18.2 (Compliance
Certificate) or, if a Compliance Certificate has not yet been delivered thereunder, in the Original Financial Statements.
20.11 Loans and guarantees
(a)
(b)
The Borrower shall not (and shall ensure that no other member of the Group will) make or allow to subsist any loans, grant any credit
(save in the ordinary course of business) or give or allow to remain outstanding any guarantee or indemnity (except as required under
any of the Finance Documents) to or for the benefit of any person other than a member of the Group or otherwise voluntarily assume
any liability, whether actual or contingent, in respect of any obligation of any person.
Paragraph (a) above does not apply to any loan made or credit granted or guarantee or indemnity outstanding, so long as the aggregate
principal amount of any such loans made or credit granted or in respect of which the guarantee or indemnity is given does not exceed an
amount equal to 5.0 per cent. of the Consolidated Total Assets set out in the most recent Compliance Certificate delivered pursuant to
clause 18.2 (Compliance Certificate) or, if a Compliance Certificate has not yet been delivered thereunder, in the Original Financial
Statements.
42
20.12 Financial Indebtedness
(a)
The Borrower shall not (and shall ensure that no other member of the Group will) incur or permit to remain outstanding any Financial
Indebtedness.
(b)
Paragraph (a) above does not apply to:
(i)
(ii)
any Financial Indebtedness incurred pursuant to any Finance Documents; and
any Financial Indebtedness incurred by a member of the Group provided that following the incurrence of such Financial
Indebtedness, the Borrower will remain in compliance with the obligations under clause 19 (Financial Covenants).
20.13 Use of Proceeds
(a)
The Borrower will not, directly or indirectly, use the proceeds of the Loans, or lend, contribute or otherwise make available such
proceeds to any Subsidiary, joint venture partner or other person:
(i)
(ii)
to fund any activities or business of or with any person, or in any country or territory, that, at the time of such funding, is, or
whose government is, the target or subject of Sanctions; or
in any other manner that would result in a violation of Sanctions by any person (including any person participating in the Loans,
whether as underwriter, advisor, investor or otherwise).
(b)
No part of the proceeds of the Loans will be used, directly or indirectly, for any payments that could constitute a violation of any
applicable Anti-Bribery and Corruption Laws.
20.14 Application of FATCA
The Borrower shall ensure that it does not become a US Tax Obligor.
20.15 Further assurances
If the Finance Parties (acting through the Agent) consider this to be required, the Borrower shall immediately, at its own cost and expense take
whatever actions (including without limitation, executing any documents, obtaining any approval and completing any registration, filing or
recording) that any such Finance Party considers necessary in order to ensure that all and any legal and regulatory requirement applicable to the
transactions contemplated under the Finance Documents are duly complied with, without prejudice to the Borrower’s other representations and
warranties or covenants relating to its compliance with laws and regulations in the Finance Documents.
20.16 Conditions subsequent
(a)
(b)
The Borrower shall, within 10 PRC working days (or any other period as required by NDRC from time to time) after each Utilisation
Date, provide the Agent with a copy of the information reporting table for foreign borrowings of enterprises (企业发⾏外债信息报送表)
(the Information Reporting Table) filed with the NDRC and the relevant upload confirmation, both affixed with the company chop (公
章) of the entity of the Group making the NDRC filing, evidencing that the report of information in respect of that Utilisation required
under NDRC Circular 2044 has been submitted to the NDRC. The Information Reporting Table shall be in form and substance
satisfactory to the Agent (acting on the instructions of the Majority Lenders).
The Borrower shall, at any time at the request of any Finance Party (through the Agent), at its own cost take whatever actions
(including, executing any documents, obtaining any approval and completing any registration, filing or recording) that any such Finance
Party may reasonably require in order to ensure that all and any legal and regulatory requirements applicable to the transactions
contemplated under the Finance Documents are duly complied with, without prejudice to any Borrower’s other representations and
warranties or covenants relating to its compliance with laws and regulations in the Finance Documents, including the requirement of
filing under NDRC Circular 2044 with the NDRC of the PRC.
43
21
Events of Default
Each of the events or circumstances set out in the following subclauses of this clause 21 (other than clause 21.15 (Acceleration)) is an Event of
Default.
21.1 Non-payment
The Borrower does not pay on the due date any amount payable pursuant to a Finance Document at the place at and in the currency in which it is
expressed to be payable unless:
(a)
its failure to pay is caused by:
(i)
(ii)
administrative or technical error; or
a Disruption Event; and
(b)
payment is made within three Business Days of its due date.
21.2
Financial covenants and conditions subsequent
Any requirement of clause 19 (Financial Covenants) and clause 20.16 (Conditions subsequent) is not satisfied.
21.3 Other obligations
(a)
(b)
The Borrower does not comply with any provision of the Finance Documents (other than those referred to in clause 21.1 (Non-payment)
and clause 21.2 (Financial covenants and conditions subsequent)).
No Event of Default under paragraph (a) above will occur if the failure to comply is capable of remedy and is remedied within ten
Business Days of the earlier of (A) the Agent giving notice to the Borrower; and (B) the Borrower becoming aware of the failure to
comply.
21.4 Misrepresentation
Any representation or statement made or deemed to be made by the Borrower in the Finance Documents or any other document delivered by or
on behalf of the Borrower under or in connection with any Finance Document is or proves to have been incorrect or misleading in any material
respect when made or deemed to be made, unless the circumstances giving rise to the misrepresentation or misstatement:
(a)
(b)
are capable of remedy; and
are remedied within ten Business Days of the earlier of (A) the Agent giving notice of the misrepresentation or misstatement to the
Borrower; and (B) the Borrower becoming aware of the misrepresentation or misstatement.
21.5 Cross default
(a)
(b)
Any Financial Indebtedness of any member of the Group is not paid when due nor within any originally applicable grace period.
Any Financial Indebtedness of any member of the Group is declared to be or otherwise becomes due and payable prior to its specified
maturity as a result of an event of default (however described).
44
(c)
(d)
(e)
Any commitment for any Financial Indebtedness of any member of the Group is cancelled or suspended by a creditor of any member of
the Group as a result of an event of default (however described).
Any creditor of any member of the Group becomes entitled to declare any Financial Indebtedness of any member of the Group due and
payable prior to its specified maturity as a result of an event of default (however described).
No Event of Default will occur under this clause 21.5 if the aggregate amount of Financial Indebtedness or commitment for Financial
Indebtedness falling within paragraphs (a) to (d) above is less than US$50,000,000 (or its equivalent in any other currency or
currencies).
21.6
Insolvency
(a)
(b)
(c)
The Borrower or any Significant Subsidiary of the Borrower is or is presumed or deemed to be unable or admits inability to pay its
debts as they fall due, suspends making payments on any of its debts or, by reason of actual or anticipated financial difficulties,
commences negotiations with one or more of its creditors (excluding any Finance Party in its capacity as such) with a view to
rescheduling any of its indebtedness.
The value of the assets of the Borrower or any Significant Subsidiary of the Borrower is less than its liabilities (taking into account
contingent and prospective liabilities).
A moratorium is declared in respect of any indebtedness of the Borrower or any Significant Subsidiary of the Borrower.
21.7
Insolvency proceedings
Any corporate action, legal proceedings or other procedure or step is taken in relation to:
(a)
(b)
(c)
the suspension of payments, a moratorium of any indebtedness, winding-up, dissolution, administration, provisional supervision or
reorganisation (by way of voluntary arrangement, scheme of arrangement or otherwise) of the Borrower or any Significant Subsidiary
of the Borrower other than a solvent liquidation or reorganisation of any member of the Group which is not the Borrower;
a composition or arrangement with any creditor of the Borrower or any Significant Subsidiary of the Borrower, or an assignment for the
benefit of creditors generally of the Borrower or any Significant Subsidiary of the Borrower or a class of such creditors;
the appointment of a liquidator (other than in respect of a solvent liquidation of a member of the Group which is not the Borrower),
receiver, administrator, administrative receiver, compulsory manager, provisional supervisor or other similar officer in respect of the
Borrower or any Significant Subsidiary of the Borrower or any of its assets; or
(d)
enforcement of any Security over any assets of the Borrower or any Significant Subsidiary of the Borrower,
or any analogous procedure or step is taken in any jurisdiction.
Paragraph (a) above shall not apply to any winding-up petition which is frivolous or vexatious and is discharged, stayed or dismissed within 14
days of commencement.
21.8 Creditors’ process
Any expropriation, attachment, sequestration, distress or execution affects any asset or assets of a member of the Group which has or is
reasonably likely to have a Material Adverse Effect
21.9 Unlawfulness
It is or becomes unlawful for the Borrower to perform any of its obligations under the Finance Documents.
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21.10 Repudiation
The Borrower repudiates a Finance Document or evidences an intention to repudiate a Finance Document.
21.11 Cessation of business
The Borrower suspends or ceases to carry on all or a material part of its business or of the business of the Group taken as a whole.
21.12 Change of business
Any substantial change is made to the general nature of the business of the Borrower or the Group from that carried on at the date of this
Agreement, except to the extent permitted by clause 20.7 (Change of business).
21.13 Material adverse change
Any event or circumstance (including disruption or continuation of such circumstance) has or is reasonably likely to have a Material Adverse
Effect.
21.14 Material litigation or proceedings
Any litigation, arbitration or administrative proceedings of or before any court, arbitral body or agency which, if adversely determined, might
reasonably be expected to have a Material Adverse Effect are commenced or threatened in writing against any member of the Group or its assets.
21.15 Acceleration
On and at any time after the occurrence of an Event of Default which is continuing the Agent may, and shall if so directed by the Majority
Lenders, by notice to the Borrower:
(a)
without prejudice to the participations of any Lender in any Loans then outstanding:
(i)
(ii)
cancel the Commitments (and reduce them to zero), whereupon they shall immediately be cancelled (and reduced to zero); or
cancel any part of any Commitment (and reduce such Commitment accordingly), whereupon the relevant part shall immediately
be cancelled (and the relevant Commitment shall be immediately reduced accordingly); and/or
(b)
(c)
declare that all or part of the Loans, together with accrued interest, and all other amounts accrued or outstanding under the Finance
Documents be immediately due and payable, whereupon they shall become immediately due and payable; and/or
declare that all or part of the Loans be payable on demand, whereupon they shall immediately become payable on demand by the Agent
on the instructions of the Majority Lenders.
22
Changes to the Lenders
22.1 Assignments and transfers by the Lenders
Subject to this clause 22, a Lender (the Existing Lender) may:
(a)
(b)
assign any of its rights; or
transfer by novation any of its rights and obligations,
under the Finance Documents to another bank or financial institution or to a trust, fund or other entity which is regularly engaged in or
established for the purpose of making, purchasing or investing in loans, securities or other financial assets (the New Lender).
46
22.2 Conditions of assignment or transfer
(a)
(b)
(c)
(d)
The consent of the Borrower is not required for any assignment or transfer by a Lender pursuant to this clause 22.
A transfer will be effective only if the procedure set out in clause 22.5 (Procedure for transfer) is complied with.
An assignment will be effective on:
(i)
(ii)
receipt by the Agent (whether in the Assignment Agreement or otherwise) of written confirmation from the New Lender (in
form and substance satisfactory to the Agent) that the New Lender will, in relation to the assigned rights, assume obligations to
the other Parties equivalent to those it would have been under if it had been an Original Lender; and
performance by the Agent of any “know your customer” checks or other similar checks required under any applicable law or
regulation in relation to such assignment to a New Lender, the completion of which the Agent must notify to the Existing
Lender and the New Lender promptly,
and only if the procedure and conditions set out in clause 22.6 (Procedure for assignment) are complied with.
If:
(i)
(ii)
a Lender assigns or transfers any of its rights or obligations under the Finance Documents; and
as a result of circumstances existing at the date the assignment or transfer occurs, the Borrower would be obliged to make a
payment to the New Lender under clause 13 (Increased Costs),
then the New Lender is only entitled to receive payment under that clause to the same extent as the Existing Lender would have been if
the assignment or transfer had not occurred.
22.3 Assignment or transfer fee
The New Lender shall, on the date falling five Business Days prior to the date upon which an assignment or transfer takes effect, pay to the
Agent (for its own account) a fee of US$2,500.
22.4 Limitation of responsibility of Existing Lenders
(a)
Unless expressly agreed to the contrary, an Existing Lender makes no representation or warranty and assumes no responsibility to a
New Lender for:
(i)
(ii)
(iii)
(iv)
the legality, validity, effectiveness, adequacy or enforceability of the Finance Documents or any other documents;
the financial condition of the Borrower;
the performance and observance by the Borrower of its obligations under the Finance Documents or any other documents; or
the accuracy of any statements (whether written or oral) made in or in connection with any Finance Document or any other
document,
and any representations or warranties implied by law are excluded.
(b)
Each New Lender confirms to the Existing Lender and the other Finance Parties that it:
(i)
has made (and shall continue to make) its own independent investigation and assessment of the financial condition and affairs of
the Borrower and its related entities in connection with its participation in this Agreement and has not relied exclusively on any
information provided to it by the Existing Lender in connection with any Finance Document; and
47
(ii)
will continue to make its own independent appraisal of the creditworthiness of the Borrower and its related entities whilst any
amount is or may be outstanding under the Finance Documents or any Commitment is in force.
(c)
Nothing in any Finance Document obliges an Existing Lender to:
(i)
(ii)
accept a re-transfer or re-assignment from a New Lender of any of the rights and obligations assigned or transferred under this
clause 22; or
support any losses directly or indirectly incurred by the New Lender by reason of the non-performance by the Borrower of its
obligations under the Finance Documents or otherwise.
22.5
Procedure for transfer
(a)
(b)
Subject to the conditions set out in clause 22.2 (Conditions of assignment or transfer), a transfer is effected in accordance with
paragraph (c) below when the Agent executes an otherwise duly completed Transfer Certificate delivered to it by the Existing Lender
and the New Lender. The Agent shall, subject to paragraph (b) below, as soon as reasonably practicable after receipt by it of a duly
completed Transfer Certificate appearing on its face to comply with the terms of this Agreement and delivered in accordance with the
terms of this Agreement, execute that Transfer Certificate.
The Agent shall not be obliged to execute a Transfer Certificate delivered to it by the Existing Lender and the New Lender unless it is
satisfied that it has completed all “know your customer” and other similar procedures that it is required (or deems desirable) to conduct
in relation to the transfer to such New Lender.
(c)
On the Transfer Date:
(i)
(ii)
(iii)
to the extent that in the Transfer Certificate the Existing Lender seeks to transfer by novation its rights and obligations under the
Finance Documents each of the Borrower and the Existing Lender shall be released from further obligations towards one
another under the Finance Documents and their respective rights against one another under the Finance Documents shall be
cancelled (being the Discharged Rights and Obligations);
each of the Borrower and the New Lender shall assume obligations towards one another and/or acquire rights against one
another which differ from the Discharged Rights and Obligations only insofar as the Borrower and the New Lender have
assumed and/or acquired the same in place of the Borrower and the Existing Lender;
each Administrative Party, the New Lender and other Lenders shall acquire the same rights and assume the same obligations
between themselves as they would have acquired and assumed had the New Lender been an Original Lender with the rights
and/or obligations acquired or assumed by it as a result of the transfer and to that extent each Administrative Party and the
Existing Lender shall each be released from further obligations to each other under the Finance Documents; and
(iv)
the New Lender shall become a Party as a “Lender”.
(d)
The procedure set out in this clause 22.5 shall not apply to any right or obligation under any Finance Document (other than this
Agreement) if and to the extent its terms, or any laws or regulations applicable thereto, provide for or require a different means of
transfer of such right or obligation or prohibit or restrict any transfer of such right or obligation, unless such prohibition or restriction
shall not be applicable to the relevant transfer or each condition of any applicable restriction shall have been satisfied.
48
22.6
Procedure for assignment
(a)
(b)
Subject to the conditions set out in clause 22.2 (Conditions of assignment or transfer), an assignment may be effected in accordance
with paragraph (c) below when the Agent executes an otherwise duly completed Assignment Agreement delivered to it by the Existing
Lender and the New Lender. The Agent shall, subject to paragraph (b) below, as soon as reasonably practicable after receipt by it of a
duly completed Assignment Agreement appearing on its face to comply with the terms of this Agreement and delivered in accordance
with the terms of this Agreement, execute that Assignment Agreement.
The Agent shall not be obliged to execute an Assignment Agreement delivered to it by the Existing Lender and the New Lender unless
it is satisfied that it has completed all “know your customer” and other similar procedures that it is required (or deems desirable) to
conduct in relation to the assignment to such New Lender.
(c)
On the Transfer Date:
(i)
(ii)
(iii)
(iv)
(v)
the Existing Lender will assign absolutely to the New Lender the rights under the Finance Documents expressed to be the
subject of the assignment in the Assignment Agreement;
the Existing Lender will be released by the Borrower and the other Finance Parties from the obligations owed by it (the
Relevant Obligations) and expressed to be the subject of the release in the Assignment Agreement;
the New Lender shall become a Party as a “Lender” and will be bound by obligations equivalent to the Relevant Obligations;
if the assignment relates only to part of the Existing Lender’s participation in the outstanding Loans that part will be separated
from the Existing Lender’s participation in the outstanding Loans, made an independent debt and assigned to the New Lender as
a whole debt; and
the Agent’s execution of the Assignment Agreement as agent for the Borrower will constitute notice to the Borrower of the
assignment.
(d)
(e)
Lenders may utilise procedures other than those set out in this clause 22.6 to assign their rights under the Finance Documents (but not,
without the consent of the Borrower or unless in accordance with clause 22.5 (Procedure for transfer), to obtain a release by the
Borrower from the obligations owed to the Borrower by the Lenders nor the assumption of equivalent obligations by a New Lender)
provided that they comply with the conditions set out in clause 22.2 (Conditions of assignment or transfer).
The procedure set out in this clause 22.6 shall not apply to any right or obligation under any Finance Document (other than this
Agreement) if and to the extent its terms, or any laws or regulations applicable thereto, provide for or require a different means of
assignment of such right or release or assumption of such obligation or prohibit or restrict any assignment of such right or release or
assumption of such obligation, unless such prohibition or restriction shall not be applicable to the relevant assignment, release or
assumption or each condition of any applicable restriction shall have been satisfied.
22.7 Copy of Transfer Certificate or Assignment Agreement to Borrower
The Agent shall, within three Business Days from the Transfer Date, send to the Borrower a copy of that Transfer Certificate or Assignment
Agreement.
22.8 Existing consents and waivers
A New Lender shall be bound by any consent, waiver, election or decision given or made by the relevant Existing Lender under or pursuant to
any Finance Document prior to the coming into effect of the relevant assignment or transfer to such New Lender.
49
22.9 Exclusion of Agent’s liability
In relation to any assignment or transfer pursuant to this clause 22, each Party acknowledges and agrees that the Agent shall not be obliged to
enquire as to the accuracy of any representation or warranty made by a New Lender in respect of its eligibility as a Lender.
22.10 Universal Succession (Assignments and Transfers)
If a Lender is to be merged with any other person by universal succession, such Lender shall, at its own cost within 45 days of that merger
provide to the Agent:
(a)
(b)
an original or certified true copy of a legal opinion issued by a qualified legal counsel practising law in its jurisdiction of incorporation
confirming that all such Lender’s assets, rights and obligations generally have been duly vested in the succeeding entity who has
succeeded to all relationships as if those assets, rights and obligations had been originally acquired, incurred or entered into by the
succeeding entity; and
an original or certified true copy of a written confirmation by either the Lender’s legal counsel or such other legal counsel acceptable to
the Agent and for the benefit of the Agent (in its capacity as agent of the Lenders) that the laws of Hong Kong and of the jurisdiction in
which the Facility Office of such Lender is located recognise such merger by universal succession under the relevant foreign laws,
whereupon a transfer and novations of all such Lender’s assets, rights and obligations to its succeeding entity shall have been, or be deemed to
have been, duly effected as at the date of the said merger.
If such Lender, in a universal succession, does not comply with the requirements under this clause 22.10, the Agent has the right to decline to
recognise the succeeding entity and demand such Lender and the succeeding entity to either sign and deliver a Transfer Certificate to the Agent
evidencing the disposal of all rights and obligations of such Lender to that succeeding entity, or provide or enter into such documents, or make
such arrangements acceptable to the Agent (acting on the advice of the Lender’s legal counsel (any legal costs so incurred shall be borne by the
relevant Lender)) in order to establish that all rights and obligations of the relevant Lender under this Agreement have been transferred to and
assumed by the succeeding entity.
22.11 Security over Lenders’ rights
In addition to the other rights provided to Lenders under this clause 22, each Lender may without consulting with or obtaining consent from the
Borrower, at any time charge, assign or otherwise create Security in or over (whether by way of collateral or otherwise) all or any of its rights
under any Finance Document to secure obligations of that Lender including:
(a)
(b)
any charge, assignment or other Security to secure obligations to a federal reserve or central bank; and
any charge, assignment or other Security granted to any holders (or trustee or representatives of holders) of obligations owed, or
securities issued, by that Lender as security for those obligations or securities,
except that no such charge, assignment or Security shall:
(i)
(ii)
release a Lender from any of its obligations under the Finance Documents or substitute the beneficiary of the relevant charge,
assignment or Security for the Lender as a party to any of the Finance Documents; or
require any payments to be made by the Borrower other than or in excess of, or grant to any person any more extensive rights
than, those required to be made or granted to the relevant Lender under the Finance Documents.
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23
Changes to the Borrower
23.1 Assignments and transfers by Borrower
The Borrower may not assign any of its rights or transfer any of its rights or obligations under the Finance Documents, except with the prior
written consent of all the Lenders.
24
Role of the Administrative Parties and the Reference Banks
24.1 Appointment of the Agent
(a)
(b)
Each Finance Party (other than the Agent) appoints the Agent to act as its agent under and in connection with the Finance Documents.
Each Finance Party (other than the Agent) authorises the Agent to perform the duties, obligations and responsibilities and to exercise
the rights, powers, authorities and discretions specifically given to the Agent under or in connection with the Finance Documents
together with any other incidental rights, powers, authorities and discretions.
24.2
Instructions
(a)
The Agent shall:
(i)
unless a contrary indication appears in a Finance Document, exercise or refrain from exercising any right, power, authority or
discretion vested in it as Agent in accordance with any instructions given to it by:
(A)
(B)
all Lenders if the relevant Finance Document stipulates the matter is an all-Lender decision; and
in all other cases, the Majority Lenders; and
(b)
(c)
(d)
(e)
(f)
(ii)
not be liable for any act (or omission) if it acts (or refrains from acting) in accordance with paragraph (i) above.
The Agent shall be entitled to request instructions, or clarification of any instruction, from the Majority Lenders (or, if the relevant
Finance Document stipulates the matter is a decision for any other Lender or group of Lenders, from that Lender or group of Lenders)
as to whether, and in what manner, it should exercise or refrain from exercising any right, power, authority or discretion. The Agent may
refrain from acting unless and until it receives any such instructions or clarification that it has requested.
Save in the case of decisions stipulated to be a matter for any other Lender or group of Lenders under the relevant Finance Document
and unless a contrary indication appears in a Finance Document, any instructions given to the Agent by the Majority Lenders shall
override any conflicting instructions given by any other Parties and will be binding on all Finance Parties.
The Agent may refrain from acting in accordance with any instructions of any Lender or group of Lenders until it has received any
indemnification and/or security that it may in its discretion require (which may be greater in extent than that contained in the Finance
Documents and which may include payment in advance) for any cost, loss or liability which it may incur in complying with those
instructions.
In the absence of instructions, the Agent may act (or refrain from acting) as it considers in its discretion to be appropriate.
The Agent is not authorised to act on behalf of a Lender (without first obtaining that Lender’s consent) in any legal or arbitration
proceedings relating to any Finance Document.
51
24.3 Duties of the Agent
(a)
(b)
(c)
(d)
(e)
(f)
(g)
The Agent’s duties under the Finance Documents are solely mechanical and administrative in nature.
Subject to paragraph (c) below, the Agent shall promptly forward to a Party the original or a copy of any document which is delivered to
the Agent for that Party by any other Party.
Without prejudice to clause 22.7 (Copy of Transfer Certificate or Assignment Agreement to Borrower), paragraph (b) above shall not
apply to any Transfer Certificate or any Assignment Agreement.
Except where a Finance Document specifically provides otherwise, the Agent is not obliged to review or check the adequacy, accuracy
or completeness of any document it forwards to another Party.
If the Agent receives notice from a Party referring to this Agreement, describing a Default and stating that the circumstance described is
a Default, it shall promptly notify the other Finance Parties.
If the Agent is aware of the non-payment of any principal, interest, arrangement fee or other fee payable to a Finance Party (other than
to any Administrative Party) under this Agreement, it shall promptly notify the other Finance Parties.
The Agent shall have only those duties, obligations and responsibilities expressly specified in the Finance Documents to which it is
expressed to be a party (and no others shall be implied).
24.4 Role of the Mandated Lead Arrangers and Bookrunners, the Mandated Lead Arrangers, the Lead Arrangers and the Arrangers
Except as specifically provided in the Finance Documents, none of the Mandated Lead Arrangers and Bookrunners, the Mandated Lead
Arrangers, the Lead Arrangers and the Arrangers has obligations of any kind to any other Party under or in connection with any Finance
Document.
24.5 No fiduciary duties
(a)
(b)
Nothing in any Finance Document constitutes any Administrative Party as a trustee or fiduciary of any other person.
No Administrative Party shall be bound to account to any Lender for any sum or the profit element of any sum received by it for its own
account.
24.6 Regulatory position
Nothing in this Agreement shall require the Agent to carry on an activity of the kind specified by any provision of Part 1 of Schedule 5 of the
Securities and Futures Ordinance (Cap. 571) of the laws of Hong Kong, or to lend money to the Borrower in its capacity as the Agent.
24.7 Money held as banker
The Agent shall be entitled to deal with money paid to it by any person for the purposes of this Agreement in the same manner as other money
paid to a banker by its customers except that it shall not be liable to account to any person for any interest or other amounts in respect of the
money.
24.8 Business with the Group
Any Administrative Party may accept deposits from, lend money to and generally engage in any kind of banking or other business with any
member of the Group.
52
24.9 Abatement of fees
The fees, commissions and expenses payable to the Agent for services rendered and the performances of its obligations under this Agreement
shall not be abated by any remuneration or other amounts or profits receivable by the Agent (or by any of its associates) in connection with any
transaction effected by the Agent with or for the Lenders or the Borrower.
24.10 Rights and discretions of the Agent
(a)
The Agent may:
(i)
rely on any representation, communication, notice or document believed by it to be genuine, correct and appropriately
authorised:
(ii)
assume that:
(A)
any instructions received by it from the Majority Lenders, any Lender or any group of Lenders are duly given in
accordance with the terms of the Finance Documents; and
(B)
unless it has received notice of revocation, those instructions have not been revoked; and
(iii)
rely on a certificate from any person:
(A)
as to any matter of fact or circumstance which might reasonably be expected to be within the knowledge of that person;
or
(B)
to the effect that such person approves of any particular dealing, transaction, step, action or thing,
as sufficient evidence that that is the case and, in the case of paragraph (A) above, may assume the truth and accuracy of that
certificate.
(b)
The Agent may assume (unless it has received notice to the contrary in its capacity as agent for the Lenders) that:
(i)
(ii)
no Default has occurred (unless it has actual knowledge of a Default arising under clause 21.1 (Non-payment)); and
any right, power, authority or discretion vested in any Party or any group of Lenders has not been exercised.
(c)
(d)
(e)
The Agent may engage, pay for and rely on the advice or services of any lawyers, accountants, tax advisers, surveyors or other
professional advisers or experts (whether obtained by the Agent or by any other Party) and shall not be liable for any damages, costs or
losses to any person, any diminution in value or any liability whatsoever arising as a result of its so relying.
Without prejudice to the generality of paragraph (c) above or paragraph (e) below, the Agent may at any time engage and pay for the
services of any lawyers to act as independent counsel to the Agent (and so separate from any lawyers instructed by the Lenders) if the
Agent in its reasonable opinion deems this to be necessary.
The Agent may rely on the advice or services of any lawyers, accountants, tax advisers, surveyors or other professional advisers or
experts (whether obtained by the Agent or by any other Party) and shall not be liable for any damages, costs or losses to any person, any
diminution in value or any liability whatsoever arising as a result of its so relying.
(f)
The Agent may act in relation to the Finance Documents through its officers, employees and agents.
53
(g)
(h)
(i)
Unless a Finance Document expressly provides otherwise the Agent may disclose to any other Party any information it reasonably
believes it has received as agent under this Agreement.
Notwithstanding any other provision of any Finance Document to the contrary, no Administrative Party is obliged to do or omit to do
anything if it would or might in its reasonable opinion constitute a breach of any law or regulation or a breach of a fiduciary duty or
duty of confidentiality.
Notwithstanding any provision of any Finance Document to the contrary, the Agent is not obliged to expend or risk its own funds or
otherwise incur any financial liability in the performance of its duties, obligations or responsibilities or the exercise of any right, power,
authority or discretion if it has grounds for believing the repayment of such funds or adequate indemnity against, or security for, such
risk or liability is not reasonably assured to it.
24.11 Responsibility for documentation
No Administrative Party is responsible or liable for:
(a)
(b)
(c)
the adequacy, accuracy and/or completeness of any information (whether oral or written) supplied by any Administrative Party, the
Borrower or any other person given in or in connection with any Finance Document or the Information Memorandum or the
transactions contemplated in the Finance Documents or any other agreement, arrangement or document entered into, made or executed
in anticipation of, under or in connection with any Finance Document;
the legality, validity, effectiveness, adequacy or enforceability of any Finance Document or any other agreement, arrangement or
document entered into, made or executed in anticipation of, under or in connection with any Finance Document; or
any determination as to whether any information provided or to be provided to any Finance Party is non-public information the use of
which may be regulated or prohibited by applicable law or regulation relating to insider dealing or otherwise.
24.12 No duty to monitor
The Agent shall not be bound to enquire:
(a)
(b)
(c)
whether or not any Default has occurred;
as to the performance, default or any breach by any Party of its obligations under any Finance Document; or
whether any other event specified in any Finance Document has occurred.
24.13 Exclusion of liability
(a)
Without limiting paragraph (b) below (and without prejudice to any other provision of any Finance Document excluding or limiting the
liability of the Agent), the Agent will not be liable for:
(i)
(ii)
(iii)
any damages, costs or losses to any person, any diminution in value, or any liability whatsoever arising as a result of taking or
not taking any action under or in connection with any Finance Document, unless directly caused by its gross negligence or
wilful misconduct;
exercising, or not exercising, any right, power, authority or discretion given to it by, or in connection with, any Finance
Document or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in
connection with, any Finance Document, other than by reason of its gross negligence or wilful misconduct; or
without prejudice to the generality of paragraphs (i) and (ii) above, any damages, costs or losses to any person, any diminution
in value or any liability whatsoever (including for negligence or any other category of liability whatsoever but not including any
claim based on the fraud of the Agent) arising as a result of:
(A)
any act, event or circumstance not reasonably within its control; or
54
(B)
the general risks of investment in, or the holding of assets in, any jurisdiction,
including (in each case) such damages, costs, losses, diminution in value or liability arising as a result of: nationalisation,
expropriation or other governmental actions; any regulation, currency restriction, devaluation or fluctuation; market conditions
affecting the execution or settlement of transactions or the value of assets (including any Disruption Event); breakdown, failure
or malfunction of any third party transport, telecommunications, computer services or systems; natural disasters or acts of God;
war, terrorism, insurrection or revolution; or strikes or industrial action.
(b)
(c)
No Party (other than the Agent) may take any proceedings against any officer, employee or agent of the Agent in respect of any claim it
might have against the Agent or in respect of any act or omission of any kind by that officer, employee or agent in relation to any
Finance Document and any officer, employee or agent of the Agent may rely on this clause 24 subject to clause 1.3 (Third party rights)
and the provisions of the Third Parties Ordinance.
The Agent will not be liable for any delay (or any related consequences) in crediting an account with an amount required under the
Finance Documents to be paid by the Agent if the Agent has taken all necessary steps as soon as reasonably practicable to comply with
the regulations or operating procedures of any recognised clearing or settlement system used by the Agent for that purpose.
(d)
Nothing in this Agreement shall oblige any Administrative Party to conduct:
(i)
(ii)
any “know your customer” or other procedures in relation to any person; or
any check on the extent to which any transaction contemplated by this Agreement might be unlawful for any Lender or for any
Affiliate of any Lender,
on behalf of any Lender and each Lender confirms to each Administrative Party that it is solely responsible for any such procedures or
check it is required to conduct and that it shall not rely on any statement in relation to such procedures or check made by any
Administrative Party.
(e)
Without prejudice to any provision of any Finance Document excluding or limiting the Agent’s liability, any liability of the Agent
arising under or in connection with any Finance Document shall be limited to the amount of actual loss which has been suffered (as
determined by reference to the date of default of the Agent or, if later, the date on which the loss arises as a result of such default) but
without reference to any special conditions or circumstances known to the Agent at any time which increase the amount of that loss. In
no event shall the Agent be liable for any loss of profits, goodwill, reputation, business opportunity or anticipated saving, or for special,
punitive, indirect or consequential damages, whether or not the Agent has been advised of the possibility of such loss or damages.
(f)
The provisions of this clause 24.13 shall survive the termination or expiry of this Agreement or the resignation or removal of the Agent.
24.14 Lenders’ indemnity to the Agent
(a)
Each Lender shall (in proportion to its share of the Total Commitments or, if the Total Commitments are then zero, to its share of the
Total Commitments immediately prior to their reduction to zero) indemnify the Agent, within three Business Days of demand, against
any cost, loss or liability (including for negligence or any other category of liability whatsoever) incurred by the Agent (otherwise than
by reason of the Agent’s gross negligence or wilful misconduct) (or, in the case of any cost, loss or liability pursuant to clause 26.10
(Disruption to payment systems etc.), notwithstanding the Agent’s negligence, gross negligence or any other category of liability
whatsoever but not including any claim based on the fraud of the Agent) in acting as Agent under the Finance Documents (unless the
Agent has been reimbursed by the Borrower pursuant to a Finance Document).
55
(b)
The indemnity given by each of the Lenders under or in connection with this Agreement is a continuing obligation, independent of each
of the Lenders’ other obligations under or in connection with this Agreement or any other Finance Document and survives after this
Agreement is terminated. It is not necessary for a person to pay any amount or incur any expense before enforcing an indemnity under
or in connection with this Agreement or any other Finance Document.
24.15 Resignation of the Agent
(a)
(b)
(c)
(d)
(e)
(f)
(g)
(h)
The Agent may resign and appoint one of its Affiliates as successor by giving notice to the Lenders and the Borrower.
Alternatively, the Agent may resign by giving 30 days’ notice to the Lenders and the Borrower, in which case the Majority Lenders
(after consultation with the Borrower) may appoint a successor Agent.
If the Majority Lenders have not appointed a successor Agent in accordance with paragraph (b) above within 30 days after notice of
resignation was given, the retiring Agent (after consultation with the Borrower) may appoint a successor Agent.
The retiring Agent shall make available to the successor Agent such documents and records and provide such assistance as the
successor Agent may reasonably request for the purposes of performing its functions as Agent under the Finance Documents.
The Agent’s resignation notice shall only take effect upon the appointment of a successor.
Upon the appointment of a successor, the retiring Agent shall be discharged from any further obligation in respect of the Finance
Documents (other than its obligations under paragraph (d) above) but shall remain entitled to the benefit of clause 15.3 (Indemnity to the
Agent) and this clause 24 (and any agency fees for the account of the retiring Agent shall cease to accrue from (and shall be payable on)
that date). Any successor and each of the other Parties shall have the same rights and obligations among themselves as they would have
had if such successor had been an original Party.
After consultation with the Borrower, the Majority Lenders may, by notice to the Agent, require it to resign in accordance with
paragraph (b) above. In this event, the Agent shall resign in accordance with paragraph (b) above.
The Agent shall resign in accordance with paragraph (b) above if on or after the date which is three months before the earliest FATCA
Application Date relating to any payment to the Agent under the Finance Documents:
(i)
(ii)
(iii)
the Agent fails to respond to a request under clause 12.1 (FATCA information) and the Borrower or a Lender reasonably believes
that the Agent will not be (or will have ceased to be) a FATCA Exempt Party on or after that FATCA Application Date;
the information supplied by the Agent pursuant to clause 12.1 (FATCA information) indicates that the Agent will not be (or will
have ceased to be) a FATCA Exempt Party on or after that FATCA Application Date; or
the Agent notifies the Borrower and the Lenders that the Agent will not be (or will have ceased to be) a FATCA Exempt Party
on or after that FATCA Application Date,
and (in each case) the Borrower or a Lender reasonably believes that a Party will be required to make a FATCA Deduction that would
not be required if the Agent were a FATCA Exempt Party, and the Borrower or that Lender, by notice to the Agent, requires it to resign.
24.16 Confidentiality
(a)
In acting as agent for the Finance Parties, the Agent shall be regarded as acting through its agency division which shall be treated as a
separate entity from any other of its divisions or departments.
56
(b)
(c)
If information is received by another division or department of the Agent, it may be treated as confidential to that division or department
and the Agent shall not be deemed to have notice of it.
The Agent shall not be obliged to disclose to any Finance Party any information supplied to it by the Borrower or any Affiliates of the
Borrower on a confidential basis and for the purpose of evaluating whether any waiver or amendment is or may be required or desirable
in relation to any Finance Document.
24.17 Relationship with the Lenders
(a)
The Agent may treat the person shown in its records as Lender at the opening of business (in the place of the Agent’s principal office as
notified to the Finance Parties from time to time) as the Lender acting through its Facility Office:
(i)
(ii)
entitled to or liable for any payment due under any Finance Document on that day; and
entitled to receive and act upon any notice, request, document or communication or make any decision or determination under
any Finance Document made or delivered on that day,
unless it has received not less than five Business Days’ prior notice from that Lender to the contrary in accordance with the terms of
this Agreement.
(b)
Any Lender may by notice to the Agent appoint a person to receive on its behalf all notices, communications, information and
documents to be made or despatched to that Lender under the Finance Documents. Such notice shall contain the address, fax number
and (where communication by electronic mail or other electronic means is permitted under clause 28.4 (Electronic communication))
electronic mail address and/or any other information required to enable the transmission of information by that means (and, in each
case, the department or officer, if any, for whose attention communication is to be made) and be treated as a notification of a substitute
address, fax number, electronic mail address (or such other information), department and officer by that Lender for the purposes of
clause 28.2 (Addresses) and clause 28.4(a)(ii) (Electronic communication) and the Agent shall be entitled to treat such person as the
person entitled to receive all such notices, communications, information and documents as though that person were that Lender.
24.18 Credit appraisal by the Lenders
Without affecting the responsibility of the Borrower for information supplied by it or on its behalf in connection with any Finance Document,
each Lender confirms to each Administrative Party that it has been, and will continue to be, solely responsible for making its own independent
appraisal and investigation of all risks arising under or in connection with any Finance Document including but not limited to:
(a)
(b)
(c)
(d)
the financial condition, status and nature of each member of the Group;
the legality, validity, effectiveness, adequacy or enforceability of any Finance Document and any other agreement, arrangement or
document entered into, made or executed in anticipation of, under or in connection with any Finance Document;
whether that Lender has recourse, and the nature and extent of that recourse, against any Party or any of its respective assets under or in
connection with any Finance Document, the transactions contemplated by the Finance Documents or any other agreement, arrangement
or document entered into, made or executed in anticipation of, under or in connection with any Finance Document; and
the adequacy, accuracy and/or completeness of the Information Memorandum and any other information provided by the Agent, any
Party or by any other person under or in connection with any Finance Document, the transactions contemplated by any Finance
Document or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection
with any Finance Document.
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24.19 Agent’s management time
Any amount payable to the Agent under clause 15.3 (Indemnity to the Agent), clause 16 (Costs and Expenses) and clause 24.14 (Lenders’
indemnity to the Agent) shall include the cost of utilising the Agent’s management time or other resources and will be calculated on the basis of
such reasonable daily or hourly rates as the Agent may notify to the Borrower and the Lenders, and is in addition to any fee paid or payable to
the Agent under clause 11 (Fees).
24.20 Deduction from amounts payable by the Agent
If any Party owes an amount to the Agent under the Finance Documents the Agent may, after giving notice to that Party, deduct an amount not
exceeding that amount from any payment to that Party which the Agent would otherwise be obliged to make under the Finance Documents and
apply the amount deducted in or towards satisfaction of the amount owed. For the purposes of the Finance Documents that Party shall be
regarded as having received any amount so deducted.
24.21 Role of Reference Banks
(a)
(b)
(c)
No Reference Bank is under any obligation to provide a quotation or any other information to the Agent.
No Reference Bank will be liable for any action taken by it under or in connection with any Finance Document, or for any Reference
Bank Quotation, unless directly caused by its gross negligence or wilful misconduct.
No Party (other than the relevant Reference Bank) may take any proceedings against any officer, employee or agent of any Reference
Bank in respect of any claim it might have against that Reference Bank or in respect of any act or omission of any kind by that officer,
employee or agent in relation to any Finance Document, or to any Reference Bank Quotation, and any officer, employee or agent of
each Reference Bank may rely on this clause 24.21 subject to clause 1.3 (Third party rights) and the provisions of the Third Parties
Ordinance.
24.22 Third party Reference Banks
A Reference Bank which is not a Party may rely on clause 24.21 (Role of Reference Banks), clause 32.3 (Other exceptions) and clause 34
(Confidentiality of Funding Rates and Reference Bank Quotations) subject to clause 1.3 (Third party rights) and the provisions of the Third
Parties Ordinance.
24.23 Amounts paid in error
(a)
If the Agent pays an amount to another Party and the Agent notifies that Party within ten Business Days that such payment was an
Erroneous Payment then the Party to whom that amount was paid by the Agent shall on demand refund the same to the Agent.
(b)
Neither:
(i)
(ii)
the obligations of any Party to the Agent; nor
the remedies of the Agent,
(whether arising under this clause 24.23 or otherwise) which relate to an Erroneous Payment will be affected by any act, omission,
matter or thing which, but for this clause 24.23(b), would reduce, release or prejudice any such obligation or remedy (whether or not
known by the Agent or any other Party).
All payments to be made by a Party to the Agent (whether made pursuant to this clause 24.23 or otherwise) which relate to an
Erroneous Payment shall be calculated and be made without (and free and clear of any deduction for) set-off or counterclaim.
In this Agreement, “Erroneous Payment” means a payment of an amount by the Agent to another Party which the Agent determines
(in its sole discretion) was made in error.
(c)
(d)
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25
Sharing among the Finance Parties
25.1
Payments to Finance Parties
If a Finance Party (a Recovering Finance Party) receives or recovers (whether by set-off or otherwise) any amount from the Borrower other
than in accordance with clause 26 (Payment Mechanics) (a Recovered Amount) and applies that amount to a payment due under the Finance
Documents then:
(a)
(b)
(c)
the Recovering Finance Party shall, within three Business Days, notify details of the receipt or recovery to the Agent;
the Agent shall determine whether the receipt or recovery is in excess of the amount the Recovering Finance Party would have been
paid had the receipt or recovery been received or made by the Agent and distributed in accordance with clause 26 (Payment
Mechanics), without taking account of any Tax which would be imposed on the Agent in relation to the receipt, recovery or distribution;
and
the Recovering Finance Party shall, within three Business Days of demand by the Agent, pay to the Agent an amount (the Sharing
Payment) equal to such receipt or recovery less any amount which the Agent determines may be retained by the Recovering Finance
Party as its share of any payment to be made, in accordance with clause 26.5 (Partial payments).
25.2 Redistribution of payments
The Agent shall treat the Sharing Payment as if it had been paid by the Borrower and distribute it between the Finance Parties (other than the
Recovering Finance Party) (the Sharing Finance Parties) in accordance with clause 26.5 (Partial payments) towards the obligations of the
Borrower to the Sharing Finance Parties.
25.3 Recovering Finance Party’s rights
(a)
(b)
On a distribution by the Agent under clause 25.2 (Redistribution of payments) of a payment received by a Recovering Finance Party
from the Borrower, as between the Borrower and the Recovering Finance Party, an amount of the Recovered Amount equal to the
Sharing Payment will be treated as not having been paid by the Borrower.
If and to the extent that the Recovering Finance Party is not able to rely on its rights under paragraph (a) above, the Borrower shall be
liable to the Recovering Finance Party for a debt equal to the Sharing Payment which is immediately due and payable.
25.4 Reversal of redistribution
If any part of the Sharing Payment received or recovered by a Recovering Finance Party becomes repayable and is repaid by that Recovering
Finance Party, then:
(a)
(b)
(c)
each Sharing Finance Party shall, upon request of the Agent, pay to the Agent for the account of that Recovering Finance Party an
amount equal to the appropriate part of its share of the Sharing Payment (together with an amount as is necessary to reimburse that
Recovering Finance Party for its proportion of any interest on the Sharing Payment which that Recovering Finance Party is required to
pay) (the Redistributed Amount); and
at the time of the request by the Agent under paragraph (a) above, the Sharing Finance Party will be subrogated to the rights of the
Recovering Finance Party in respect of the relevant Redistributed Amount; and
if and to the extent that the Sharing Finance Party is not able to rely on its rights under paragraph (b) above as between the Borrower
and each relevant Sharing Finance Party, an amount equal to the relevant Redistributed Amount will be treated as not having been paid
by the Borrower.
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25.5 Exceptions
(a)
(b)
This clause 25 shall not apply to the extent that the Recovering Finance Party would not, after making any payment pursuant to this
clause 25 have a valid and enforceable claim against the Borrower.
A Recovering Finance Party is not obliged to share with any other Finance Party any amount which the Recovering Finance Party has
received or recovered as a result of taking legal or arbitration proceedings, if:
(i)
(ii)
it notified that other Finance Party of the legal or arbitration proceedings; and
that other Finance Party had an opportunity to participate in those legal or arbitration proceedings but did not do so as soon as
reasonably practicable having received notice and did not take separate legal or arbitration proceedings.
26
Payment Mechanics
26.1
Payments to the Agent
(a)
(b)
On each date on which a Party is required to make a payment under a Finance Document, that Party shall make the same available to
the Agent (unless a contrary indication appears in a Finance Document) for value on the due date at the time and in such funds specified
by the Agent as being customary at the time for settlement of transactions in the relevant currency in the place of payment.
Payment shall be made to such account in the principal financial centre of the country of that currency and with such bank as the Agent,
in each case, specifies.
26.2 Distributions by the Agent
(a)
(b)
Each payment received by the Agent under the Finance Documents for another Party shall, subject to clause 26.3 (Distributions to the
Borrower) and clause 26.4 (Clawback and pre-funding) be made available by the Agent as soon as practicable after receipt to the Party
entitled to receive payment in accordance with this Agreement (in the case of a Lender, for the account of its Facility Office), to such
account as that Party may notify to the Agent by not less than five Business Days’ notice with a bank specified by that Party in the
principal financial centre of the country of that currency.
The Agent shall distribute payments received by it in relation to all or any part of a Loan to the Lender indicated in the records of the
Agent as being so entitled on that date provided that the Agent is authorised to distribute payments to be made on the date on which
any transfer becomes effective pursuant to clause 22 (Changes to the Lenders) to the Lender so entitled immediately before such
transfer took place regardless of the period to which such sums relate.
26.3 Distributions to the Borrower
The Agent may (with the consent of the Borrower or in accordance with clause 27 (Set-off)) apply any amount received by it for the Borrower in
or towards payment (on the date and in the currency and funds of receipt) of any amount due from the Borrower under the Finance Documents
or in or towards purchase of any amount of any currency to be so applied.
26.4 Clawback and pre-funding
(a)
(b)
Where a sum is to be paid to the Agent under the Finance Documents for another Party, the Agent is not obliged to pay that sum to that
other Party (or to enter into or perform any related exchange contract) until it has been able to establish to its satisfaction that it has
actually received that sum.
Unless paragraph (c) below applies, if the Agent pays an amount to another Party and it proves to be the case that the Agent had not
actually received that amount, then the Party to whom that amount (or the proceeds of any related exchange contract) was paid by the
Agent shall on demand refund the same to the Agent together with interest on that amount from the date of payment to the date of
receipt by the Agent, calculated by the Agent to reflect its cost of funds.
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(c)
If the Agent has notified the Lenders that it is willing to make available amounts for the account of the Borrower before receiving funds
from the Lenders then if and to the extent that the Agent does so but it proves to be the case that it does not then receive funds from a
Lender in respect of a sum which it paid to the Borrower:
(i)
(ii)
the Agent shall notify the Borrower of that Lender’s identity and the Borrower shall on demand refund it to the Agent; and
the Lender by whom those funds should have been made available or, if that Lender fails to do so, the Borrower shall on
demand pay to the Agent the amount (as certified by the Agent) which will indemnify the Agent against any funding cost
incurred by it as a result of paying out that sum before receiving those funds from that Lender.
26.5
Partial payments
(a)
If the Agent receives a payment that is insufficient to discharge all the amounts then due and payable by the Borrower under the Finance
Documents, the Agent shall apply that payment towards the obligations of the Borrower under the Finance Documents in the following
order:
(i)
(ii)
(iii)
(iv)
first, in or towards payment pro rata of any unpaid amount owing to any Administrative Party under the Finance Documents;
secondly, in or towards payment pro rata of any accrued interest, fee (other than as provided in paragraph (i) above) or
commission due but unpaid under the Finance Documents;
thirdly, in or towards payment pro rata of any principal due but unpaid under this Agreement; and
fourthly, in or towards payment pro rata of any other sum due but unpaid under the Finance Documents.
(b)
(c)
The Agent shall, if so directed by the Majority Lenders, vary the order set out in paragraphs (a)(ii) to (a)(iv) above.
Paragraphs (a) and (b) above will override any appropriation made by the Borrower.
26.6 No set-off by Borrower
All payments to be made by the Borrower under the Finance Documents shall be calculated and be made without (and free and clear of any
deduction for) set-off or counterclaim.
26.7 Business Days
(a)
(b)
Any payment under the Finance Documents which is due to be made on a day that is not a Business Day shall be made on the next
Business Day in the same calendar month (if there is one) or the preceding Business Day (if there is not).
During any extension of the due date for payment of any principal or Unpaid Sum under this Agreement, interest is payable on the
principal or Unpaid Sum at the rate payable on the original due date.
26.8 Currency of account
(a)
Subject to clauses 26.8(b) and 26.8(c) below, US Dollars is the currency of account and payment for any sum due from the Borrower
under any Finance Document.
(b)
Each payment in respect of costs, expenses or Taxes shall be made in the currency in which the costs, expenses or Taxes are incurred.
61
(c)
Any amount expressed to be payable in a currency other than US Dollars shall be paid in that other currency.
26.9 Change of currency
(a)
Unless otherwise prohibited by law, if more than one currency or currency unit are at the same time recognised by the central bank of
any country as the lawful currency of that country, then:
(i)
(ii)
any reference in the Finance Documents to, and any obligations arising under the Finance Documents in, the currency of that
country shall be translated into, or paid in, the currency or currency unit of that country designated by the Agent (after
consultation with the Borrower); and
any translation from one currency or currency unit to another shall be at the official rate of exchange recognised by the central
bank for the conversion of that currency or currency unit into the other, rounded up or down by the Agent (acting reasonably).
(b)
If a change in any currency of a country occurs, this Agreement will, to the extent the Agent (acting reasonably and after consultation
with the Borrower) specifies to be necessary, be amended to comply with any generally accepted conventions and market practice in the
London interbank market and otherwise to reflect the change in currency.
26.10 Disruption to payment systems etc.
If either the Agent determines (in its discretion) that a Disruption Event has occurred or the Agent is notified by the Borrower that a Disruption
Event has occurred:
(a)
(b)
(c)
(d)
(e)
the Agent may, and shall if requested to do so by the Borrower, consult with the Borrower with a view to agreeing with the Borrower
such changes to the operation or administration of the Facilities as the Agent may deem necessary in the circumstances;
the Agent shall not be obliged to consult with the Borrower in relation to any changes mentioned in paragraph (a) above if, in its
opinion, it is not practicable to do so in the circumstances and, in any event, shall have no obligation to agree to such changes;
the Agent may consult with the Finance Parties in relation to any changes mentioned in paragraph (a) above but shall not be obliged to
do so if, in its opinion, it is not practicable to do so in the circumstances;
any such changes agreed upon by the Agent and the Borrower shall (whether or not it is finally determined that a Disruption Event has
occurred) be binding upon the Parties as an amendment to (or, as the case may be, waiver of) the terms of the Finance Documents
notwithstanding the provisions of clause 32 (Amendments and Waivers);
the Agent shall not be liable for any damages, costs or losses to any person, any diminution in value or any liability whatsoever
(including for negligence, gross negligence or any other category of liability whatsoever but not including any claim based on the fraud
of the Agent) arising as a result of its taking, or failing to take, any actions pursuant to or in connection with this clause 26.10; and
(f)
the Agent shall notify the Finance Parties of all changes agreed pursuant to paragraph (d) above.
27
Set-off
A Finance Party may set off any matured obligation due from the Borrower under the Finance Documents (to the extent beneficially owned by
that Finance Party) against any matured obligation owed by that Finance Party to the Borrower, regardless of the place of payment, booking
branch or currency of either obligation. If the obligations are in different currencies, the Finance Party may convert either obligation at a market
rate of exchange in its usual course of business for the purpose of the set-off.
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28
Notices
28.1 Communications in writing
Any communication to be made under or in connection with the Finance Documents shall be made in writing and, unless otherwise stated, may
be made by fax or letter.
28.2 Addresses
The address and fax number (and the department or officer, if any, for whose attention the communication is to be made) of each Party for any
communication or document to be made or delivered under or in connection with the Finance Documents is:
(a)
(b)
(c)
in the case of the Borrower, that identified with its name below;
in the case of each Lender, that notified in writing to the Agent on or prior to the date on which it becomes a Party; and
in the case of the Agent, that identified with its name below,
or any substitute address, fax number or department or officer as the Party may notify to the Agent (or the Agent may notify to the other Parties,
if a change is made by the Agent) by not less than five Business Days’ notice.
28.3 Delivery
(a)
Any communication or document made or delivered by one person to another under or in connection with the Finance Documents will
be effective:
(i)
(ii)
if by way of fax, only when received in legible form; or
if by way of letter, only when it has been left at the relevant address or five Business Days after being deposited in the post
postage prepaid in an envelope addressed to it at that address;
and, if a particular department or officer is specified as part of its address details provided under clause 28.2 (Addresses), if addressed to
that department or officer.
Any communication or document to be made or delivered to the Agent will be effective only when actually received by the Agent and
then only if it is expressly marked for the attention of the department or officer identified with the Agent’s signature below (or any
substitute department or officer as the Agent shall specify for this purpose).
All notices from or to the Borrower shall be sent through the Agent.
Any communication or document which becomes effective, in accordance with paragraphs (a) to (c) above, after 5p.m. in the place of
receipt shall be deemed only to become effective on the following day.
(b)
(c)
(d)
28.4 Electronic communication
(a)
Any communication to be made between any two Parties under or in connection with the Finance Documents may be made by
electronic mail or other electronic means (including by way of posting to a secure website) if those two Parties:
(i)
(ii)
notify each other in writing of their electronic mail address and/or any other information required to enable the transmission of
information by that means; and
notify each other of any change to their address or any other such information supplied by them by not less than five Business
Days’ notice.
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(b)
(c)
(d)
(e)
Any such electronic communication as specified in paragraph (a) above to be made between the Borrower and a Finance Party may only
be made in that way to the extent that those two Parties agree that, unless and until notified to the contrary, this is to be an accepted form
of communication.
Any such electronic communication as specified in paragraph (a) above made between any two Parties will be effective only when
actually received (or made available) in readable form and in the case of any electronic communication made by a Party to the Agent
only if it is addressed in such a manner as the Agent shall specify for this purpose.
Any electronic communication which becomes effective, in accordance with paragraph (c) above, after 5 p.m.in the place in which the
Party to whom the relevant communication is sent or made available has its address for the purpose of this Agreement shall be deemed
only to become effective on the following day.
Any reference in a Finance Document to a communication being sent or received shall be construed to include that communication
being made available in accordance with this clause 28.4.
28.5 English language
(a)
(b)
Any notice given under or in connection with any Finance Document must be in English.
All other documents provided under or in connection with any Finance Document must be:
(i)
(ii)
in English; or
if not in English, and if so required by the Agent, accompanied by a certified English translation and, in this case, the English
translation will prevail unless the document is a constitutional, statutory or other official document.
29
Calculations and Certificates
29.1 Accounts
In any litigation or arbitration proceedings arising out of or in connection with a Finance Document, the entries made in the accounts maintained
by a Finance Party are prima facie evidence of the matters to which they relate.
29.2 Certificates and determinations
Any certification or determination by a Finance Party of a rate or amount under any Finance Document is, in the absence of manifest error,
conclusive evidence of the matters to which it relates.
29.3 Day count convention
Any interest, commission or fee accruing under a Finance Document will accrue from day to day and is calculated on the basis of the actual
number of days elapsed and a year of 360 days or, in any case where the practice in the London interbank market differs, in accordance with that
market practice.
30
Partial Invalidity
If, at any time, any provision of a Finance Document is or becomes illegal, invalid or unenforceable in any respect under any law of any
jurisdiction, neither the legality, validity or enforceability of the remaining provisions nor the legality, validity or enforceability of such provision
under the law of any other jurisdiction will in any way be affected or impaired.
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31
Remedies and Waivers
No failure to exercise, nor any delay in exercising, on the part of any Finance Party, any right or remedy under a Finance Document shall operate
as a waiver of any such right or remedy or constitute an election to affirm any of the Finance Documents. No election to affirm any Finance
Document on the part of any Finance Party shall be effective unless it is in writing. No single or partial exercise of any right or remedy shall
prevent any further or other exercise or the exercise of any other right or remedy. The rights and remedies provided in each Finance Document
are cumulative and not exclusive of any rights or remedies provided by law and may be waived only in writing and specifically.
32
Amendments and Waivers
32.1 Required consents
(a)
Subject to clause 32.2 (All-Lender matters) and clause 32.3 (Other exceptions), any term of the Finance Documents may be amended or
waived only with the consent of the Majority Lenders and the Borrower and any such amendment or waiver will be binding on all
Parties.
(b)
The Agent may effect, on behalf of any Finance Party, any amendment or waiver permitted by this clause 32.
32.2 All-Lender matters
An amendment or waiver of any term of any Finance Document that has the effect of changing or which relates to:
(a)
(b)
(c)
(d)
(e)
(f)
(g)
(h)
the definition of Majority Lenders in clause 1.1 (Definitions);
the receipt of the documents and other evidence specified in clause 4.1 (Initial conditions precedent);
an extension to the date of payment of any amount under the Finance Documents;
a reduction in the Margin or a reduction in the amount of any payment of principal, interest, fees or commission payable;
a change in currency of payment of any amount under the Finance Documents;
an increase in any Commitment, an extension of the Availability Period or any requirement that a cancellation of Commitments reduces
the Commitments of the Lenders rateably under the relevant Facility;
any provision which expressly requires the consent of all the Lenders; or
clause 2.3 (Finance Parties’ rights and obligations), clause 5.1 (Delivery of a Utilisation Request), clause 7.1 (Illegality), clause 7.2
(Change of control), clause 7.9 (Application of prepayments), clause 22 (Changes to the Lenders), clause 23 (Changes to the Borrower),
clause 25 (Sharing among the Finance Parties), this clause 32, clause 36 (Governing Law), or clause 37.1 (Jurisdiction of Hong Kong
courts),
shall not be made without the prior consent of all the Lenders.
32.3 Other exceptions
An amendment or waiver which relates to the rights or obligations of an Administrative Party or a Reference Bank (each in their capacity as
such) may not be effected without the consent of that Administrative Party or that Reference Bank, as the case may be.
32.4 Replacement of Screen Rate
(a)
Subject to clause 32.3 (Other exceptions), if a Screen Rate Replacement Event has occurred in relation to the Screen Rate, any
amendment or waiver which relates to:
providing for the use of a Replacement Benchmark;
(i)
(ii)
(A)
aligning any provision of any Finance Document to the use of that Replacement Benchmark;
65
(B)
(C)
(D)
(E)
enabling that Replacement Benchmark to be used for the calculation of interest under this Agreement (including,
without limitation, any consequential changes required to enable that Replacement Benchmark to be used for the
purposes of this Agreement);
implementing market conventions applicable to that Replacement Benchmark;
providing for appropriate fallback (and market disruption) provisions for that Replacement Benchmark; or
adjusting the pricing to reduce or eliminate, to the extent reasonably practicable, any transfer of economic value from
one Party to another as a result of the application of that Replacement Benchmark (and if any adjustment or method for
calculating any adjustment has been formally designated, nominated or recommended by the Relevant Nominating
Body, the adjustment shall be determined on the basis of that designation, nomination or recommendation),
may be made with the consent of the Agent (acting on the instructions of the Majority Lenders) and the Borrower.
(b)
If, as at 30 June 2022 this Agreement provides that the rate of interest for the Loans is to be determined by reference to the Screen Rate:
(i)
(ii)
a Screen Rate Replacement Event shall be deemed to have occurred on that date in relation to the Screen Rate; and
the Agent (acting on the instructions of the Majority Lenders) and the Borrower shall enter into negotiations in good faith with a
view to agreeing the amendments to this Agreement for the use of a Replacement Benchmark in relation to US Dollars in place
of that Screen Rate for the Loans by 31 December 2022 and for such amendments and the use of a Replacement Benchmark to
take effect from and including a date no later than 30 June 2023. The Replacement Benchmark may be simple SOFR,
compounded SOFR or, as appropriate, forward looking term SOFR giving due consideration to:
(A)
(B)
any selection or recommendation of a replacement rate or mechanism for determining such a rate by a Relevant
Nominating Body; or
any evolving or then-prevailing market convention for determining a replacement rate or mechanism for determining
such a rate and the Benchmark Replacement Adjustment,
and if the Replacement Benchmark would be less than zero, the Replacement Benchmark will be deemed to be zero for the
purposes of this Agreement.
(c)
If any Lender fails to respond to a request for an amendment or waiver described in, or for any other vote of Lenders in relation to,
paragraph (a) above within ten Business Days (or such longer time period in relation to any request which the Borrower and the Agent
may agree) of that request being made:
(i)
(ii)
its relevant Commitment(s) or, as the case may be, its participation in the relevant Loans shall not be included for the purpose of
ascertaining whether any relevant percentage of Total Commitments or, as the case may be, participations in the Loans has been
obtained to approve that request; and
its status as a relevant Lender shall be disregarded for the purpose of ascertaining whether the agreement of any specified group
of Lenders has been obtained to approve that request.
66
32.5 Excluded Commitments
If any Lender fails to respond to a request for a consent, waiver, amendment of or in relation to any term of any Finance Document (other than a
consent, waiver, amendment referred to in paragraphs (c),
(d) or (f) of clause 32.2 (All-Lender matters) or any other vote of Lenders under the terms of this Agreement within 15 Business Days of that
request being made, unless the Borrower and the Agent agree to a longer time period in relation to such request:
(a)
(b)
its Commitment shall not be included for the purpose of calculating the Total Commitments under the relevant Facility when
ascertaining whether any relevant percentage (including, for the avoidance of doubt, unanimity) of Total Commitments has been
obtained to approve that request; and
its status as a Lender shall be disregarded for the purpose of ascertaining whether the agreement of any specified group of Lenders has
been obtained to approve that request.
33
Confidential Information
33.1 Confidentiality
Each Finance Party agrees to keep all Confidential Information confidential and not to disclose it to anyone, save to the extent permitted by
clause 33.2 (Disclosure of Confidential Information) and clause 33.3 (Disclosure to numbering service providers), and to ensure that all
Confidential Information is protected with security measures and a degree of care that would apply to its own confidential information.
33.2 Disclosure of Confidential Information
Any Finance Party may disclose:
(a)
to any of its Affiliates and Related Funds and any of its or their officers, directors, employees, professional advisers, service providers,
partners, insurance providers and Representatives, head office and branch offices such Confidential Information as that Finance Party
shall consider appropriate if any person to whom the Confidential Information is to be given pursuant to this paragraph (a) is made
aware in writing of its confidential nature and that some or all of such Confidential Information may be price-sensitive information
except that there shall be no such requirement to so inform if the recipient is subject to professional obligations to maintain the
confidentiality of the information or is otherwise bound by requirements of confidentiality in relation to the Confidential Information;
(b)
to any person:
(i)
(ii)
(iii)
(iv)
to (or through) whom it assigns or transfers (or may potentially assign or transfer) all or any of its rights and/or obligations
under one or more Finance Documents or which succeeds (or which may potentially succeed) it as Agent and, in each case, to
any of that person’s Affiliates, Related Funds, Representatives and professional advisers;
with (or through) whom it enters into (or may potentially enter into), whether directly or indirectly, any sub-participation in
relation to, or any other transaction under which payments are to be made or may be made by reference to, one or more Finance
Documents and/or the Borrower and to any of that person’s Affiliates, Related Funds, Representatives and professional advisers;
appointed by any Finance Party or by a person to whom paragraph (i) or (ii) above applies to receive communications, notices,
information or documents delivered pursuant to the Finance Documents on its behalf (including any person appointed under
paragraph (b) of clause 24.17 (Relationship with the Lenders));
who invests in or otherwise finances (or may potentially invest in or otherwise finance), directly or indirectly, any transaction
referred to in paragraph (i) or (ii) above;
67
(v)
(vi)
(vii)
to whom information is required or requested to be disclosed by any court of competent jurisdiction or any governmental,
banking, taxation or other regulatory authority or similar body, the rules of any relevant stock exchange or pursuant to any
applicable law or regulation;
to whom information is required to be disclosed in connection with, and for the purposes of, any litigation, arbitration,
administrative or other investigations, proceedings or disputes;
to whom or for whose benefit that Finance Party charges, assigns or otherwise creates Security (or may do so) pursuant to clause
22.11 (Security over Lenders’ rights);
(viii) who is a Party; or
(ix)
with the consent of the Borrower;
in each case, such Confidential Information as that Finance Party shall consider appropriate if:
(A)
(B)
(C)
in relation to paragraphs (i), (ii) and (iii) above, the person to whom the Confidential Information is to be given has
entered into a Confidentiality Undertaking except that there shall be no requirement for a Confidentiality Undertaking
if the recipient is a professional adviser and is subject to professional obligations to maintain the confidentiality of the
Confidential Information;
in relation to paragraph (iv) above, the person to whom the Confidential Information is to be given has entered into a
Confidentiality Undertaking or is otherwise bound by requirements of confidentiality in relation to the Confidential
Information they receive and is informed that some or all of such Confidential Information may be price-sensitive
information; or
in relation to paragraphs (v), (vi) and (vii) above, the person to whom the Confidential Information is to be given is
informed of its confidential nature and that some or all of such Confidential Information may be price-sensitive
information except that there shall be no requirement to so inform if, in the opinion of that Finance Party, it is not
practicable so to do in the circumstances;
(c)
(d)
to any person appointed by that Finance Party or by a person to whom paragraph (b)(i) or (b)(ii) above applies to provide administration
or settlement services in respect of one or more of the Finance Documents including in relation to the trading of participations in respect
of the Finance Documents, such Confidential Information as may be required to be disclosed to enable such service provider to provide
any of the services referred to in this paragraph (c) if the service provider to whom the Confidential Information is to be given has
entered into a confidentiality agreement substantially in the form of the LMA Master Confidentiality Undertaking for Use With
Administration/Settlement Service Providers or such other form of confidentiality undertaking agreed between the Borrower and the
relevant Finance Party; and
to any rating agency (including its professional advisers) such Confidential Information as may be required to be disclosed to enable
such rating agency to carry out its normal rating activities in relation to the Finance Documents and/or the Borrower if the rating agency
to whom the Confidential Information is to be given is informed of its confidential nature and that some or all of such Confidential
Information may be price-sensitive information.
33.3 Disclosure to numbering service providers
(a)
Any Finance Party may disclose to any national or international numbering service provider appointed by that Finance Party to provide
identification numbering services in respect of this Agreement, the Facilities and/or the Borrower the following information:
(i)
(ii)
name of the Borrower;
country of domicile of the Borrower;
(iii)
place of incorporation of the Borrower;
68
(iv)
(v)
(vi)
date of this Agreement;
clause 36 (Governing Law);
the names of the Agent, the Mandated Lead Arrangers and Bookrunners, the Mandated Lead Arrangers, the Lead Arrangers and
the Arrangers;
(vii)
date of each amendment and restatement of this Agreement;
(viii)
amounts of, and names of, the Facilities (and any tranches);
(ix)
(x)
(xi)
amount of Total Commitments;
currency of the Facilities
type of Facilities;
(xii)
ranking of Facilities;
(xiii) Final Repayment Date for Facilities;
(xiv)
changes to any of the information previously supplied pursuant to paragraphs (i) to (xiii) above; and
(xv)
such other information agreed between such Finance Party and the Borrower,
to enable such numbering service provider to provide its usual syndicated loan numbering identification services.
(b)
(c)
The Parties acknowledge and agree that each identification number assigned to this Agreement, the Facilities and/or the Borrower by a
numbering service provider and the information associated with each such number may be disclosed to users of its services in
accordance with the standard terms and conditions of that numbering service provider.
The Borrower represents that none of the information set out in paragraphs (a)(i) to (a)(xv) above is, nor will at any time be,
unpublished price-sensitive information.
(d)
The Agent shall notify the Borrower and the other Finance Parties of:
(i)
(ii)
the name of any numbering service provider appointed by the Agent in respect of this Agreement, the Facilities and/or the
Borrower; and
the number or, as the case may be, numbers assigned to this Agreement, the Facilities and/or the Borrower by such numbering
service provider.
33.4 Data privacy
The Agent may collect, use and disclose personal data about the Borrower and other Finance Parties (if it is an individual) or individuals
associated with the Borrower and/or Finance Parties (whether or not it is an individual), so that the Agent can carry out its obligations to the
Borrower and/or, as the case may be, Finance Party and for other related purposes, including auditing, monitoring and analysis of its business,
fraud and crime prevention, money laundering, legal and regulatory compliance, and the marketing by the Agent or members of HSBC Holdings
PLC together with its subsidiary undertakings from time to time of other services. The Agent may also transfer the personal data to any country
(including countries outside where the Agent provides the services to be provided under the terms of this Agreement where there may be less
stringent data protection laws) to process information on the Agent’s behalf. Where it is processed, the personal data will be protected by
security measures and a degree of care to which all members of the HSBC Group and their staff are subject and will only be used in accordance
with the Borrower’s and/or as the case may be, the Finance Party’s instructions. In this clause 33.4, the HSBC Group means HSBC Holdings
plc together with its subsidiary undertakings from time to time.
69
33.5 Entire agreement
This clause 33 constitutes the entire agreement between the Parties in relation to the obligations of the Finance Parties under the Finance
Documents regarding Confidential Information and supersedes any previous agreement, whether express or implied, regarding Confidential
Information.
33.6
Inside information
Each of the Finance Parties acknowledges that some or all of the Confidential Information is or may be price-sensitive information and that the
use of such information may be regulated or prohibited by applicable legislation including securities law relating to insider dealing and market
abuse and each of the Finance Parties undertakes not to use any Confidential Information for any unlawful purpose.
33.7 Notification of disclosure
Each of the Finance Parties agrees (to the extent permitted by law and regulation) to inform the Borrower:
(a)
of the circumstances of any disclosure of Confidential Information made pursuant to paragraph (b)(v) of clause 33.2 (Disclosure of
Confidential Information) except where such disclosure is made to any of the persons referred to in that paragraph during the ordinary
course of its supervisory or regulatory function; and
(b)
upon becoming aware that Confidential Information has been disclosed in breach of this clause 33.
33.8 Continuing obligations
The obligations in this clause 33 are continuing and, in particular, shall survive and remain binding on each Finance Party for a period of 12
months from the earlier of:
(a)
the date on which all amounts payable by the Borrower under or in connection with this Agreement have been paid in full and all
Commitments have been cancelled or otherwise cease to be available; and
(b)
the date on which such Finance Party otherwise ceases to be a Finance Party.
34
Confidentiality of Funding Rates and Reference Bank Quotations
34.1 Confidentiality and disclosure
(a)
The Agent and the Borrower agree to keep each Funding Rate (and, in the case of the Agent, each Reference Bank Quotation)
confidential and not to disclose it to anyone, save to the extent permitted by paragraphs (b), (c) and (d) below.
(b)
The Agent may disclose:
(i)
(ii)
any Funding Rate (but not, for the avoidance of doubt, any Reference Bank Quotation) to the Borrower pursuant to clause 8.4
(Notification of rates of interest); and
any Funding Rate or any Reference Bank Quotation to any person appointed by it to provide administration services in respect
of one or more of the Finance Documents to the extent necessary to enable such service provider to provide those services if the
service provider to whom that information is to be given has entered into a confidentiality agreement substantially in the form of
the LMA Master Confidentiality Undertaking for Use With Administration/Settlement Service Providers or such other form of
confidentiality undertaking agreed between the Agent and the relevant Lender or Reference Bank, as the case may be.
70
(c)
The Agent may disclose any Funding Rate or any Reference Bank Quotation, and the Borrower may disclose any Funding Rate, to:
(i)
(ii)
(iii)
any of its Affiliates and any of its or their officers, directors, employees, professional advisers, auditors, partners and
Representatives if any person to whom that Funding Rate or Reference Bank Quotation is to be given pursuant to this paragraph
(i) is informed in writing of its confidential nature and that it may be price-sensitive information except that there shall be no
such requirement to so inform if the recipient is subject to professional obligations to maintain the confidentiality of that
Funding Rate or Reference Bank Quotation or is otherwise bound by requirements of confidentiality in relation to it;
any person to whom information is required or requested to be disclosed by any court of competent jurisdiction or any
governmental, banking, taxation or other regulatory authority or similar body, the rules of any relevant stock exchange or
pursuant to any applicable law or regulation if the person to whom that Funding Rate or Reference Bank Quotation is to be
given is informed in writing of its confidential nature and that it may be price-sensitive information except that there shall be no
requirement to so inform if, in the opinion of the Agent or the Borrower, as the case may be, it is not practicable to do so in the
circumstances;
any person to whom information is required to be disclosed in connection with, and for the purposes of, any litigation,
arbitration, administrative or other investigations, proceedings or disputes if the person to whom that Funding Rate or Reference
Bank Quotation is to be given is informed in writing of its confidential nature and that it may be price-sensitive information
except that there shall be no requirement to so inform if, in the opinion of the Agent or the Borrower, as the case may be, it is
not practicable to do so in the circumstances; and
(iv)
any person with the consent of the relevant Lender or Reference Bank, as the case may be.
(d)
The Agent’s obligations in this clause 34 relating to Reference Bank Quotations are without prejudice to its obligations to make
notifications under clause 8.4 (Notification of rates of interest) provided that (other than pursuant to paragraph (b)(i) above) the Agent
shall not include the details of any individual Reference Bank Quotation as part of any such notification.
34.2 Related obligations
(a)
(b)
The Agent and the Borrower acknowledge that each Funding Rate (and, in the case of the Agent, each Reference Bank Quotation) is or
may be price-sensitive information and that its use may be regulated or prohibited by applicable legislation including securities law
relating to insider dealing and market abuse and the Agent and the Borrower undertake not to use any Funding Rate or, in the case of the
Agent, any Reference Bank Quotation for any unlawful purpose.
The Agent and the Borrower agree (to the extent permitted by law and regulation) to inform the relevant Lender or Reference Bank, as
the case may be:
(i)
of the circumstances of any disclosure made pursuant to paragraph (c)(ii) of clause 34.1 (Confidentiality and disclosure) except
where such disclosure is made to any of the persons referred to in that paragraph during the ordinary course of its supervisory or
regulatory function; and
(ii)
upon becoming aware that any information has been disclosed in breach of this clause 34.
34.3 No Event of Default
No Event of Default will occur under clause 21.3 (Other obligations) by reason only of the Borrower’s failure to comply with this clause 34.
35
Counterparts
Each Finance Document may be executed in any number of counterparts, and this has the same effect as if the signatures on the counterparts
were on a single copy of the Finance Document.
71
36
Governing Law
This Agreement is governed by the laws of Hong Kong.
37
Enforcement
37.1
Jurisdiction of Hong Kong courts
(a)
(b)
(c)
The courts of Hong Kong have exclusive jurisdiction to settle any dispute arising out of or in connection with this Agreement (including
any dispute regarding the existence, validity or termination of this Agreement) (a Dispute).
The Parties agree that the courts of Hong Kong are the most appropriate and convenient courts to settle Disputes and accordingly no
Party will argue to the contrary.
This clause 37.1 is for the benefit of the Finance Parties only. As a result, no Finance Party shall be prevented from taking proceedings
relating to a Dispute in any other courts with jurisdiction. To the extent allowed by law, the Finance Parties may take concurrent
proceedings in any number of jurisdictions.
37.2 Waiver of immunities
The Borrower irrevocably waives, to the extent permitted by applicable law, with respect to itself and its revenues and assets (irrespective of
their use or intended use), all immunity on the grounds of sovereignty or other similar grounds from:
(a)
(b)
(c)
(d)
(e)
suit;
jurisdiction of any court;
relief by way of injunction or order for specific performance or recovery of property;
attachment of its assets (whether before or after judgment); and
execution or enforcement of any judgment to which it or its revenues or assets might otherwise be entitled in any proceedings in the
courts of any jurisdiction (and irrevocably agrees, to the extent permitted by applicable law, that it will not claim any immunity in any
such proceedings).
THIS AGREEMENT has been entered into on the date stated at the beginning of this Agreement.
72
Schedule 1
Original Lenders
73
Schedule 2
Conditions Precedent
74
Schedule 3
Requests
75
Schedule 4
Form of Transfer Certificate
76
Schedule 5
Form of Assignment Agreement
77
Schedule 6
Form of Compliance Certificate
78
Schedule 7
Timetables
79
Schedule 8
Form of Incremental Facility Notice
80
Schedule 9
Banking (Exposure Limits) Rules
81
SIGNATORIES
Borrower
TRIP.COM GROUP LIMITED
By: /s/ Danmin Chen VP Finance
Danmin Chen
Contact Details:
Address:
Attention:
Telephone:
Fax:
E-mail address:
Mandated Lead Arranger and Bookrunner
BANK OF CHINA LIMITED
By: /s/ Lu Hong
Lu Hong
Vice President
Bank of China Limited Shanghai Branch
Contact Details (for credit matters):
Address:
Attention:
Telephone:
Fax:
Email:
Contact Details (for operations matter):
Address:
Attention:
Telephone:
Fax:
Email:
Mandated Lead Arranger and Bookrunner
THE HONGKONG AND SHANGHAI BANKING CORPORATION LIMITED
By: /s/ Jeff Lim
Jeff Lim
Head of Loans Origination, Hong Kong
Leveraged & Acquisition Finance
Global Banking
Address:
Fax:
Attention:
Mandated Lead Arranger
CHINA CONSTRUCTION BANK (ASIA) CORPORATION LIMITED
By:
/s/ Ivan Siu-Wah
1831 MA, Ivan Siu-Wah
Senior Vice President
/s/ Steve Hung Chi
2360 CHAN, Steve Hung Chi
Senior Vice President
Contact Details (for credit matters):
Address:
Attention:
Telephone:
Fax:
E-mail address:
Contact Details (for operations matter):
Address:
Attention:
Telephone:
Fax:
E-mail address:
Mandated Lead Arranger
CHINA EVERBRIGHT BANK COMPANY LIMITED SHANGHAI BRANCH
By: /s/ Ma Ning
Ma Ning
President
Contact Details (for credit matters):
Address:
Attention:
Telephone:
E-mail address:
Contact Details (for operations matter):
Address:
Attention:
Telephone:
Fax:
E-mail address:
Mandated Lead Arranger
CHINA EVERBRIGHT BANK CO., LTD. HONG KONG BRANCH (A COMPANY INCORPORATED IN THE PEOPLE’S REPUBLIC OF
CHINA WITH LIMITED LIABILITY)
By:
/s/ Desmond Wu
Desmond Wu
Chief Risk Officer
/s/ Stephen Lau
Stephen Lau
Head of Corporate Banking II
Contact Details (for credit matters):
Address:
Attention:
Telephone:
Fax:
E-mail address:
Contact Details (for operations matter):
Address:
Attention:
Telephone:
Fax:
E-mail address:
Mandated Lead Arranger
CHINA MERCHANTS BANK SHANGHAI BRANCH
By: /s/ SHI SHUNHUA
SHI SHUNHUA
President
Contact Details (for credit matters):
Address:
Attention:
Telephone:
Fax:
E-mail address:
Contact Details (for operations matter):
Address:
Attention:
Telephone:
Fax:
E-mail address:
Mandated Lead Arranger
AGRICULTURAL BANK OF CHINA SHANGHAI BRANCH CHANGNING SUB-BRANCH
Agricultural Bank of China Shanghai Branch Changning Sub-branch
By: /s/ Li Yonghui
Li Yonghui
President
Contact Details (for credit matters):
Address:
Attention:
Telephone:
Fax:
E-mail address:
Contact Details (for operations matter):
Address:
Attention:
Telephone:
Fax:
E-mail address:
Mandated Lead Arranger
BANK OF COMMUNICATIONS (HONG KONG) LIMITED (INCORPORATED IN HONG KONG WITH LIMITED LIABILITY)
/s/ LO LOK KI
LO LOK KI (AS114)
Section Head - Documentation (Commercial)
By:
/s/ Chen Bun
Chen Bun (AS096)
General Manager, Structured and
Capital Finance Department
Contact Details (for credit matters):
Address:
Attention:
Telephone:
Fax:
E-mail address:
Contact Details (for operations matter):
Address:
Attention:
Telephone:
Fax:
E-mail address:
Mandated Lead Arranger
BANK OF COMMUNICATIONS CO., LTD. SHANGHAI MUNICIPAL BRANCH CHANGNING SUB-BRANCH
By: /s/ Zhu Mu
Zhu Mu
Deputy General Manager.
Contact Details (for credit matters):
Address:
Attention:
Telephone:
Fax:
E-mail address:
Contact Details (for operations matter):
Address:
Attention:
Telephone:
Fax:
E-mail address:
Mandated Lead Arranger
DBS BANK LTD. (INCORPORATED IN SINGAPORE WITH LIMITED LIABILITY)
By: /s/ Xinxin ZHANG
Xinxin ZHANG
(Specimen Signature No. A00012781)
Vice President
Contact Details (for credit matters):
Address:
Attention:
Telephone:
Fax:
E-mail address:
Contact Details (for operations matter):
Address:
Attention:
Telephone:
Fax:
E-mail address:
Mandated Lead Arranger
INDUSTRIAL BANK CO., LTD. (A JOINT STOCK COMPANY INCORPORATED IN P.R.C. WITH LIMITED LIABILITY), HONG KONG
BRANCH
/s/ Tsong, Chi Man
Tsong, Chi Man
Assistant Vice President
By:
/s/ Zhou Wenru
Zhou Wenru
Deputy General Manager
Contact Details (for credit matters):
Address:
Attention:
Telephone:
Fax:
E-mail address:
Contact Details (for operations matter):
Address:
Attention:
Telephone:
Fax:
E-mail address:
Mandated Lead Arranger
INDUSTRIAL BANK CORPORATION LIMITED SHANGHAI PUDONG SUB-BRANCH
MENG JIANPING
Head of INDUSTRIAL BANK
CORPORATION LIMITED SHANGHAI
PUDONG SUB-BRANCH
By:
/s/ MENG JIANPING
Contact Details (for credit matters):
Address:
Attention:
Telephone:
Fax:
E-mail address:
Contact Details (for operations matter):
Address:
Attention:
Telephone:
Fax:
E-mail address:
Mandated Lead Arranger
SHANGHAI PUDONG DEVELOPMENT BANK CO., LTD JINGAN SUB-BRANCH
By: /s/ Fang Chen
Fang Chen, President of SPDB Jingan Sub-Branch
Contact Details (for credit matters):
Address:
Attention:
Telephone:
Fax:
E-mail address:
Contact Details (for operations matter):
Address:
Attention:
Telephone:
Fax:
E-mail address:
Lead Arranger
INDUSTRIAL AND COMMERCIAL BANK OF CHINA SHANGHAI CAO HE JING HI-TECH PARK BRANCH
By: /s/ Wang Heng
Wang Heng
The President
Contact Details for credit matters):
Address:
Attention:
Telephone:
Fax:
E-mail address:
Contact Details (for operations matter):
Address:
Attention:
Telephone:
Fax:
E-mail address:
/s/ Ju Xing Ming
Ju Xing Ming
Assistant Branch
Manager
Lead Arranger
CMB WING LUNG BANK LIMITED SHANGHAI BRANCH
By:
/s/ Lau King Ming
Lau King Ming
Deputy Branch
Manager
Contact Details (for credit matters):
Address:
Attention:
Telephone:
Fax:
E-mail address:
Contact Details (for operations matter):
Address:
Attention:
Telephone:
Fax:
E-mail address:
Lead Arranger
CMB WING LUNG BANK LIMITED
By: /s/ Wang Huan
Wang Huan, Department Head of Corporate Banking III
/s/ Liu Haitao
Liu Haitao, Head of Global Financing Department
Contact Details (for credit matters):
Address:
Attention:
Telephone:
Fax:
E-mail address:
Contact Details (for operations matter):
Address:
Attention:
Telephone:
Fax:
E-mail address:
/s/ Mr. Lee Tsz Kin
Name: Mr. Lee Tsz Kin
Title: Assistant Chief Executive
Lead Arranger
NANYANG COMMERCIAL BANK, LIMITED
By:
/s/ Mr. Law Chun Chung
Name: Mr. Law Chun Chung
Title: Head of Corporate Business
Division One
Contact Details (for credit matters):
Address:
Attention:
Telephone:
Fax:
E-mail address:
Contact Details (for operations matter):
Address:
Attention:
Telephone:
Fax:
E-mail address:
Arranger
CHINA CITIC BANK CORPORATION LIMITED, SHANGHAI BRANCH
By: /s/ Authorized Signatory
Contact Details (for credit matters):
Address:
Attention:
Telephone:
Fax:
Email address:
Contact Details (for operations matter):
Address:
Attention:
Telephone:
Fax:
Email address:
Arranger
THE BANK OF EAST ASIA, LIMITED (東亞銀行有限公司)
By: /s/ Ms. Christine Wong
Ms. Christine Wong
Department Head
Corporate Lending & Syndication Department
/s/ Ms. Fanny Mok
Ms. Fanny Mok
Deputy Head
Corporate Lending & Syndication Department
Contact Details (for credit matters):
Address:
Attention:
Telephone:
Fax:
E-mail address:
Contact Details (for operations matter):
Address:
Attention:
Telephone:
Fax:
E-mail address:
Arranger
CHINA MINSHENG BANKING CORP., LTD. HONG KONG BRANCH (A JOINT STOCK LIMITED COMPANY INCORPORATED IN
THE PEOPLE’S REPUBLIC OF CHINA)
By: /s/ Li Ming
Li Ming, Deputy CEO
Contact Details (for credit matters);
Address:
Attention:
Telephone:
Fax:
E-mail address:
Contact Details (for operations matter):
Address:
Attention:
Telephone:
Fax:
E-mail address:
Arranger
HUA XIA BANK CO., LIMITED HONG KONG BRANCH (WHOSE HEAD OFFICE IS A JOINT-STOCK COMPANY INCORPORATED
IN THE PEOPLE’S REPUBLIC OF CHINA WITH LIMITED LIABILITY)
By: /s/ Chen Hao
Chen Hao
Chief Executive
Contact Details (for credit matters):
Address:
Attention:
Telephone:
Fax:
E-mail address:
Contact Details (for operations matter):
Address:
Attention:
Telephone:
Fax:
E-mail address:
Arranger
BANK OF HANGZHOU CO., LTD. SHANGHAI BRANCH
By: /s/ Jiang Yong
Jiang Yong
President
Contact Details (for credit matters):
Address:
Attention:
Telephone:
Fax:
E-mail address:
Contact Details (for operations matter):
Address:
Attention:
Telephone:
Fax:
E-mail address:
Arranger
JPMORGAN CHASE BANK, N.A., ACTING THROUGH ITS HONG KONG BRANCH
By: /s/ Stella Wong
Stella Wong
Executive Director
Contact Details (for credit matters):
Address:
Attention:
Telephone:
Fax:
E-mail address:
Contact Details (for operations matter):
Address:
Attention:
Telephone:
Fax:
E-mail address:
Original Lender
BANK OF CHINA LIMITED SHANGHAI CHANGNING SUB-BRANCH
By: /s/ WENG ZU YUAN
WENG ZU YUAN
Vice President
Bank of China Limited Shanghai Changning
Sub-branch
Contact Details (for credit matters):
Address:
Attention:
Telephone:
Fax:
E-mail address:
Contact Details (for operations matter):
Address:
Attention:
Telephone:
Fax:
E-mail address:
/s/ Chin Lai Ngan
Chin Lai Ngan
(8851006)
Original Lender
BANK OF CHINA (HONG KONG) LIMITED
By:
/s/ Luk Miu Lan
Luk Miu Lan
(8850945)
Contact Details (for credit matters):
Address:
Attention:
Telephone:
Fax No.:
E-mail address:
Contact Details (for operations matter)
Address:
Attention:
Telephone:
Fax No.:
E-mail address:
Original Lender
THE HONGKONG AND SHANGHAI BANKING CORPORATION LIMITED
By: /s/ Monique W M Wong
Address:
Attention:
Telephone:
Fax No:
E-mail address:
Monique W M Wong
062356
Senior Vice President
Original Lender
CHINA CONSTRUCTION BANK (ASIA) CORPORATION LIMITED
By: /s/ Ivan Siu-Wah
1831 MA, Ivan Siu-Wah
Senior Vice President
/s/ Steve Hung Chi
2360 CHAN, Steve Hung Chi
Senior Vice President
Contact Details (for credit matters):
Address:
Attention:
Telephone:
Fax:
E-mail address:
Contact Details (for operations matter):
Address:
Attention:
Telephone:
Fax:
E-mail address:
Original Lender
CHINA EVERBRIGHT BANK COMPANY LIMITED SHANGHAI BRANCH
Ma Ning
President
By: /s/ Ma Ning
Contact Details (For credit matters):
Address:
Attention:
Telephone:
E-mail address:
Contact Details (for operations matter):
Address:
Attention:
Telephone:
Fax:
E-mail address:
Original Lender
CHINA EVERBRIGHT BANK CO., LTD. HONG KONG BRANCH (A COMPANY INCORPORATED IN THE PEOPLE’S REPUBLIC OF
CHINA WITH LIMITED LIABILITY)
/s/ Stephen Lau
Stephen Lau
Head of Corporate Banking II
By: /s/ Desmond Wu
Desmond Wu
Chief Risk Officer
Contact Details (for credit matters):
Address:
Attention:
Telephone:
Fax:
E-mail address:
Contact Details (for operations matter):
Address:
Attention:
Telephone:
Fax:
E-mail address:
Original Lender
CHINA MERCHANTS BANK SHANGHAI BRANCH
By: /s/ SHI SHUNHUA
Contact Details (For Credit Matters):
Address:
Attention:
Telephone:
Fax:
E-mail address:
Contact Details (for operations matter):
Address:
Attention:
Telephone:
Fax:
E-mail address:
SHI SHUNHUA
President
Original Lender
AGRICULTURAL BANK OF CHINA SHANGHAI BRANCH CHANGNING SUB-BRANCH
Agricultural Bank of China, Shanghai Branch Changning Sub-branch
By: /s/ Li Yonghui
Li Yonghui
President
Contact Details (for credit matters):
Address:
Attention:
Telephone:
Fax:
E-mail address:
Contact Details (for operations matter):
Address:
Attention:
Telephone:
Fax:
E-mail address:
Original Lender
BANK OF COMMUNICATIONS (HONG KONG) LIMITED (INCORPORATED IN HONG KONG WITH LIMITED LIABILITY)
Section Head - Documentation
(Commercial)
/s/ LO LOK KI (AS114)
LO LOK KI (AS114)
General Manager, Structured and
Capital Finance Department
By: /s/ Chen Bun (AS096)
Chen Bun (AS096)
Contact Details (for credit matters):
Address:
Attention:
Telephone:
Fax:
E-mail address:
Contact Details (for operations matter):
Address:
Attention:
Telephone:
Fax:
E-mail address:
Original Lender
BANK OF COMMUNICATIONS CO., LTD. SHANGHAI MUNICIPAL BRANCH CHANGNING SUB-BRANCH
By: /s/ Zhu Mu
Zhu Mu
Deputy General Manager
Contact Details (for credit matters):
Address:
Attention:
Telephone:
Fax:
E-mail address:
Contact Details (for operations matter):
Address:
Attention:
Telephone:
Fax:
E-mail address:
Original Lender
DBS BANK LTD., HONG KONG BRANCH
By: /s/ Xinxin ZHANG
Vice President
Xinxin ZHANG
Contact Details (for credit matters):
Address:
Attention:
Telephone:
Fax:
E-mail address:
Contact Details (for operations matter):
Address:
Attention:
Telephone:
Fax:
E-mail address:
Original Lender
INDUSTRIAL BANK CO., LTD. (A JOINT STOCK COMPANY INCORPORATED IN P.R.C. WITH LIMITED LIABILITY), HONG KONG
BRANCH
By: /s/ Zhou Wenru
Zhou Wenru
Deputy General Manager
/s/ Tsong, Chi Man
Tsong, Chi Man
Assistant Vice President
Contact Details (for credit matters):
Address:
Attention:
Telephone:
Fax:
E-mail address:
Contact Details (for operations matter):
Address:
Attention:
Telephone:
Fax:
E-mail address:
Original Lender
INDUSTRIAL BANK CORPORATION LIMITED SHANGHAI PUDONG SUB-BRANCH
MENG JIANPING
Head of INDUSTRIAL BANK
CORPORATION LIMITED SHANGHAI
PUDONG SUB-BRANCH
By:
/s/ MENG JIANPING
Contact Details (for credit matters):
Address:
Attention:
Telephone:
Fax:
E-mail address:
Contact Details (for operations matter):
Address:
Attention:
Telephone:
Fax:
E-mail address:
Original Lender
SHANGHAI PUDONG DEVELOPMENT BANK CO., LTD JINGAN SUB-BRANCH
By: /s/ Fong Chen
Fong Chen, President of SPDB Jingan Sub-Branch
Contact Details (for credit matters):
Address:
Attention:
Telephone:
Fax:
E-mail address:
Contact Details (for operations matter):
Address:
Attention:
Telephone:
Fax:
E-mail address:
Original Lender
INDUSTRIAL AND COMMERCIAL BANK OF CHINA SHANGHAI CAO HE JING HI-TECH PARK BRANCH
By: /s/ Wang Heng
Wang Heng
The President
Contact Details (for credit matters):
Address:
Attention:
Telephone:
Fax:
E-mail address:
Contact Details (for operations matter):
Address:
Attention:
Telephone:
Fax:
E-mail address:
Original Lender
CMB WING LUNG BANK LIMITED SHANGHAI BRANCH
By: /s/ Lau King Ming
Lau King Ming
Deputy Branch
Manager
/s/ Ju Xing Ming
Ju Xing Ming
Assistant Branch
Manager
Contact Details (for credit matters):
Address:
Attention:
Telephone:
Fax:
E-mail address:
Contact Details (for operations matter):
Address:
Attention:
Telephone:
Fax:
E-mail address:
Original Lender
CMB WING LUNG BANK LIMITED
By: /s/ Wang Huan
Wang Huan, Department Head of Corporate Banking III
/s/ Liu Haitao
Liu Haitao, Head of Global Financing Department
Contact Details (for credit matters):
Address:
Attention:
Telephone:
Fax:
E-mail address:
Contact Details (for operations matter):
Address:
Attention:
Telephone:
Fax:
E-mail address:
/s/ Mr. Lee Tsz Kin
Name: Mr. Lee Tsz Kin
Title: Assistant Chief Executive
Original Lender
NANYANG COMMERCIAL BANK, LIMITED
By:
/s/ Mr. Law Chun Chung
Name: Mr. Law Chun Chung
Title: Head of Corporate Business Division One
Contact Details (for credit matters):
Address:
Attention:
Telephone:
Fax:
E-mail address:
Contact Details (for operations matter):
Address:
Attention:
Telephone:
Fax:
E-mail address:
Original Lender
CHINA CITIC BANK CORPORATION LIMITED, SHANGHAI BRANCH
By:
/s/ Authorized Signatory
Contact Details (for credit matters):
Address:
Attention:
Telephone:
Fax:
Email:
Contact Details (for operations matter):
Address:
Attention:
Telephone:
Fax:
Email:
Original Lender
THE BANK OF EAST ASIA, LIMITED (東亞銀行有限公司)
By:
/s/ Ms. Christine Wong
Ms. Christine Wong
Department Head
Corporate Lending & Syndication Department
/s/ Ms. Fanny Mok
Ms. Fanny Mok
Deputy Head
Corporate Lending & Syndication Department
Contact Details (for credit matters):
Address:
Attention:
Telephone:
Fax:
E-mail address:
Contact Details (for operations matter):
Address:
Attention:
Telephone:
Fax:
E-mail address:
Original Lender
CHINA MINSHENG BANKING CORP., LTD. HONG KONG BRANCH (A JOINT STOCK LIMITED COMPANY INCORPORATED IN
THE PEOPLE’S REPUBLIC OF CHINA)
By: /s/ Li Ming
Li Ming, Deputy CEO
Contact Details (for credit matters):
Address:
Attention:
Telephone:
Fax:
E-mail address:
Contact Details (for operations matter):
Address:
Attention:
Telephone:
Fax:
E-mail address:
Original Lender
HUA XIA BANK CO., LIMITED HONG KONG BRANCH (WHOSE HEAD OFFICE IS A JOINT-STOCK COMPANY INCORPORATED
IN THE PEOPLE’S REPUBLIC OF CHINA WITH LIMITED LIABILITY)
By: /s/ Chen Hao
Chen Hao
Chief Executive
Contact Details (for credit matters):
Address:
Attention:
Telephone:
Fax:
E-mail address:
Contact Details (for operations matter):
Address:
Attention:
Telephone:
Fax:
E-mail address:
Original Lender
BANK OF HANGZHOU CO., LTD. SHANGHAI BRANCH
By: /s/ Jiang Yong
Jiang Yong
President
Contact Details (for credit matters):
Address:
Attention:
Telephone:
Fax:
E-mail address:
Contact Details (for operations matter):
Address:
Attention:
Telephone:
Fax:
E-mail address:
Original Lender
JPMORGAN CHASE BANK, N.A., ACTING THROUGH ITS HONG KONG BRANCH
By: /s/ Stella Wong
Stella Wong
Executive Director
Contact Details (for credit matters):
Address:
Attention:
Telephone:
Fax:
E-mail address:
Contact Details (for operations matter):
Address:
Attention:
Telephone:
Fax:
E-mail address:
Agent
BANK OF CHINA (HONG KONG) LIMITED
By: /s/ Luk Miu Lan
Luk Miu Lan
(8850945)
Address :
Fax No. :
Attention :
E-mail address :
/s/ Chin Lai Ngan
Chin Lai Ngan
(8851006)
Trip.com Group Limited
List of Significant Consolidated Entities
Exhibit 8.1
Significant Subsidiaries*
C-Travel International Limited, a Cayman Islands company
Ctrip.com (Hong Kong) Limited, a Hong Kong company
Ctrip Computer Technology (Shanghai) Co., Ltd., a PRC company
Ctrip Travel Information Technology (Shanghai) Co., Ltd., a PRC company
Ctrip Travel Network Technology (Shanghai) Co., Ltd., a PRC company
Wancheng (Shanghai) Travel Service Co., Ltd., a PRC company
Shanghai Hecheng International Travel Agency Co., Ltd., a PRC company
Skyscanner Holdings Limited, a UK company
Shanghai Ctrip International Travel Agency Co., Ltd., a PRC company
Chengdu Ctrip International Travel Agency Co., Ltd., a PRC company
Chengdu Ctrip Information Technology Co., Ltd., a PRC company
Qunar Cayman Islands Limited, a Cayman Islands company
Beijing Qunar Software Technology Co., Ltd., a PRC company
Significant Consolidated Affiliated Chinese Entities*
Shanghai Ctrip Commerce Co., Ltd., a PRC company
Shanghai Huacheng Southwest International Travel Agency Co., Ltd., a PRC company
Chengdu Ctrip Travel Agency Co., Ltd., a PRC company
Beijing Qu Na Information Technology Co., Ltd., a PRC company
*Other consolidated entities of Trip.com Group Limited. have been omitted from this list since, considered in the aggregate as a single entity, they
would not constitute a significant subsidiary.
TRIP.COM GROUP LIMITED
CODE OF BUSINESS CONDUCT AND ETHICS
Exhibit 11.1
Purpose
This Code of Business Conduct and Ethics (the “Code”) contains general guidelines for conducting the business of Trip.com Group Limited (the
“Company” or “Trip.com Group”) consistent with the highest standards of business ethics, and is intended to qualify as a “code of ethics” within the
meaning of Section 406 of the Sarbanes-Oxley Act of 2002 and the rules promulgated thereunder. To the extent this Code requires a higher standard than
required by commercial practice or applicable laws, rules or regulations, we adhere to these higher standards.
This Code is designed to deter wrongdoing and to promote:
•
•
•
•
•
honest and ethical conduct, including the ethical handling of actual or apparent conflicts of interest between personal and professional
relationships;
full, fair, accurate, timely, and understandable disclosure in reports and documents that Trip.com Group files with, or submits to, the U.S.
Securities and Exchange Commission (the “SEC”) , Hong Kong Stock Exchange and in other public communications made by Trip.com
Group;
compliance with applicable governmental laws, rules and regulations;
prompt internal reporting of violations of the Code; and
accountability for adherence to the Code.
Applicability
This Code applies to all of the directors, officers, employees and agents of Trip.com Group, whether they work for Trip.com Group on a full-time,
part-time, consultative, or temporary basis (each an “employee” and collectively, the “employees”). Certain provisions of the Code apply specifically to
our chief executive officer, chief financial officer, senior finance officer, controller, vice presidents and any other persons who perform similar functions
for Trip.com Group (each, a “ senior officer,” and collectively, “senior officers”).
The Board of Directors of Trip.com Group (the “Board”) appoints a compliance officer of the Company (the “Compliance Officer”) from time to
time. If you have any questions regarding the Code or would like to report any violation of the Code, please call the Compliance Officer at *** or e-mail
at ***.
This Code was adopted by the Board on April 19, 2021.
Conflicts of Interest
Identifying Conflicts of Interest
A conflict of interest occurs when an employee’s private interest interferes, or appears to interfere, in any way with the interests of Trip.com
Group as a whole. You should actively avoid any private interest that may influence your ability to act in the interests of Trip.com Group or that may
make it difficult to perform your work objectively and effectively. In general, the following should be considered conflicts of interest:
•
•
Competing Business. No employee may be employed by a business that competes with Trip.com Group or deprives it of any business.
Corporate Opportunity. No employee should use corporate property, information or his or her position with Trip.com Group to secure a
business opportunity that would otherwise be available to Trip.com Group. If you discover a business opportunity that is in Trip.com
Group’s line of business, through the use of Trip.com Group’s property, information or position, you must first present the business
opportunity to Trip.com Group before pursuing the opportunity in your individual capacity.
•
Financial Interests.
i.
No employee may have any financial interest (ownership or otherwise), either directly or indirectly through a spouse or other family
member, in any other business entity if such financial interest adversely affects the employee’s performance of duties or
responsibilities to Trip.com Group, or requires the employee to devote certain time during such employee’s working hours at
Trip.com Group;
ii.
No employee may hold any ownership interest in a privately-held company that is in competition with Trip.com Group;
iii. An employee may hold up to but no more than 5% ownership interest in a publicly traded company that is in competition with
Trip.com Group;
iv. No employee may hold any ownership interest in a company that has a business relationship with Trip.com Group if such
employee’s duties at Trip.com Group include managing or supervising Trip.com Group’s business relations with that company
If an employee’s ownership interest in a business entity described in clause (iii) above increases to more than 5%, the employee must immediately
report such ownership to Trip.com Group.
•
•
Loans or Other Financial Transactions. No employee may obtain loans or guarantees of personal obligations from, or enter into any other
personal financial transaction with, any company that is a material customer, supplier or competitor of Trip.com Group. This guideline
does not prohibit arms-length transactions with recognized banks or other financial institutions.
Service on Boards and Committees. No employee should serve on a board of directors or trustees or on a committee of any entity (whether
profit or not-for-profit) whose interests reasonably could be expected to conflict with those of Trip.com Group. Employees must obtain
prior approval from the Board before accepting any such board or committee position. Trip.com Group may revisit its approval of any such
position at any time to determine whether service in such position is still appropriate.
It is difficult to list all of the ways in which a conflict of interest may arise, and we have provided only a few, limited examples. If you are faced
with a difficult business decision that is not addressed above, ask yourself the following questions:
•
•
•
Is it legal?
Is it honest and fair?
Is it in the best interests of Trip.com Group?
Disclosure of Conflicts of Interest
Trip.com Group requires that employees fully disclose any situations that reasonably could be expected to give rise to a conflict of interest. If you
suspect that you have a conflict of interest, or something that others could reasonably perceive as a conflict of interest, you must report it immediately to
the Compliance Officer. Conflicts of interest may only be waived by the Board, or the appropriate committee of the Board, and will be promptly
disclosed to the public to the extent required by law.
Family Members and Work
The actions of family members outside the workplace may also give rise to conflicts of interest because they may influence an employee’s
objectivity in making decisions on behalf of Trip.com Group. If a member of an employee’s family is interested in doing business with Trip.com Group,
the criteria as to whether to enter into or continue the business relationship, and the terms and conditions of the relationship, must be no less favorable to
Trip.com Group compared with those that would apply to a non-relative seeking to do business with Trip.com Group under similar circumstances.
Employees should report any situation involving family members that could reasonably be expected to give rise to a conflict of interest to their
supervisor or the Compliance Officer. For purposes of this Code, “family members” or “members of your family” include your spouse, brothers, sisters
and parents, in-laws and children.
Gifts and Entertainment
The giving and receiving of gifts is common business practice. Appropriate business gifts and entertainment are welcome courtesies designed to
build relationships and understanding among business partners. However, gifts and entertainment should never compromise, or appear to compromise,
your ability to make objective and fair business decisions.
It is the responsibility of employees to use good judgment in this area. As a general rule, employees may give or receive gifts or entertainment to
or from customers or suppliers only if the gift or entertainment could not be viewed as an inducement to any particular business decision. All gifts and
entertainment expenses made on behalf of Trip.com Group must be properly accounted for on expense reports.
Employees may only accept appropriate gifts. We encourage employees to submit gifts received to the Company. While it is not mandatory to
submit small gifts, gifts of over RMB200 must be submitted immediately to the administration department of the Company. The receipt of ordinary gifts
shall comply with Trip.com Group’s applicable internal policies and rules in this regard.
Trip.com Group’s business conduct is founded on the principle of “fair transaction.” Therefore, no employee may receive kickbacks, bribe others,
or secretly receive commissions or any other personal benefits.
Protection and Use of Company Assets
Employees should protect Trip.com Group’s assets and ensure their efficient use for legitimate business purposes only. Theft, carelessness and
waste have a direct impact on Trip.com Group’s profitability. The use of the funds or assets of the Company, whether for personal gain or not, for any
unlawful or improper purpose is strictly prohibited.
To ensure the protection and proper use of Trip.com Group’s assets, each employee should:
•
•
Exercise reasonable care to prevent theft, damage or misuse of Company property;
Promptly report the actual or suspected theft, damage or misuse of Company property;
•
•
Safeguard all electronic programs, data, communications and written materials from inadvertent access by others; and
Use Company property only for legitimate business purposes.
Intellectual Property and Confidentiality
•
•
•
•
•
•
All inventions, creative works, computer software, and technical or trade secrets developed by an employee in the course of performing the
employee’s duties or primarily through the use of the Company’s materials and technical resources while working at the Company, shall be
the property of the Company.
The Company maintains a strict confidentiality policy. During an employee’s term of employment, the employee shall comply with any
and all written or unwritten rules and policies concerning confidentiality and shall fulfill the duties and responsibilities concerning
confidentiality applicable to the employee.
In addition to fulfilling the responsibilities associated with his position in the Company, an employee shall not, without first obtaining
approval from the Company, disclose, announce or publish trade secrets or other confidential business information of the Company, nor
shall an employee use such confidential information outside the course of his duties to the Company.
Even outside the work environment, an employee must maintain vigilance and refrain from disclosing important information regarding the
Company or its business, customers or employees.
An employee’s duty of confidentiality with respect to the confidential information of the Company survives the termination of such
employee’s employment with the Company for any reason until such time as the Company discloses such information publicly or the
information otherwise becomes available in the public sphere through no fault of the employee.
Upon termination of employment, or at such time as the Company requests, an employee must return to the Company all of its property
without exception, including all forms of medium containing confidential information, and may not retain duplicate materials.
Accuracy of Financial Reports and Other Public Communications
Trip.com Group is a public company and is required to report its financial results and other material information about its business to the public
,the SEC and Hong Kong Stock Exchange. It is Trip.com Group’s policy to promptly disclose accurate and complete information regarding its business,
financial condition and results of operations. Employees must strictly comply with all applicable standards, laws, regulations and policies for accounting
and financial reporting of transactions, estimates and forecasts. Inaccurate, incomplete or untimely reporting will not be tolerated and can severely
damage Trip.com Group and result in legal liability.
Employees should be on guard for, and promptly report, any possibility of inaccurate or incomplete financial reporting. Particular attention should
be paid to:
•
•
•
Financial results that seem inconsistent with the performance of the underlying business;
Transactions that do not seem to have an obvious business purpose; and
Requests to circumvent ordinary review and approval procedures.
Trip.com Group’s senior financial officers and other employees working in the Accounting Department have a special responsibility to ensure that
all of Trip.com Group’s financial disclosures are full, fair, accurate, timely and understandable. Any practice or situation that might undermine this
objective should be reported to the Compliance Officer.
Company Records
Accurate and reliable records are crucial to the Company’s business and form the basis of its earnings statements, financial reports and other
disclosures to the public. The Company’s records are the source of essential data that guides business decision-making and strategic planning. Company
records include, but are not limited to, booking information, payroll, timecards, travel and expense reports, e-mails, accounting and financial data,
measurement and performance records, electronic data files and all other records maintained in the ordinary course of our business.
All Company records must be complete, accurate and reliable in all material respects. There is never an acceptable reason to make false or
misleading entries. Undisclosed or unrecorded funds, payments or receipts are strictly prohibited. You are responsible for understanding and complying
with the Company’s record keeping policy. Contact the Compliance Officer if you have any questions regarding the record keeping policy.
Compliance with Laws and Regulations
Each employee has an obligation to comply with the laws of the cities, provinces, regions and countries in which Trip.com Group operates. This
includes, without limitation, laws covering commercial bribery and kickbacks, copyrights, trademarks and trade secrets, information privacy, insider
trading, offering or receiving gratuities, workplace harassment, occupational health and safety, false or misleading financial information or misuse of
corporate assets. Employees are expected to understand and comply with all laws, rules and regulations that apply to your position at Trip.com Group. If
any doubt exists about whether a course of action is lawful, you should seek advice immediately from the Compliance Officer.
Compliance with Insider Trading Policy
Each employee has an obligation to comply with Trip.com Group’s Insider Trading Policy dated October 31, 2017 and amended on April 19,
2021, a copy of which has been provided to each employee.
Violations of the Code
All employees have a duty to report any known or suspected violation of this Code, including any violation of laws, rules, regulations or policies
that apply to the Company. Reporting a known or suspected violation of this Code by others will not be considered an act of disloyalty, but an action to
safeguard the reputation and integrity of Trip.com Group and its employees.
If you know of or suspect a violation of this Code, it is your responsibility to immediately report the violation to the Compliance Officer, who will
work with you to investigate your concern. All questions and reports of known or suspected violations of this Code will be treated with sensitivity and
discretion. The Compliance Officer and the Company will protect your confidentiality to the extent possible, consistent with the law and the Company’s
need to investigate your concern.
It is Trip.com Group’s policy that any employee who violates this Code will be subject to appropriate discipline, including termination of
employment, based upon the facts and circumstances of each particular situation. Your conduct as an employee of Trip.com Group, if it does not comply
with the law or with this Code, can result in serious consequences for both you and Trip.com Group.
Trip.com Group strictly prohibits retaliation against an employee who, in good faith, seeks help or reports known or suspected violations. An
employee inflicting reprisal or retaliation against another employee for reporting a known or suspected violation, will be subject to disciplinary action up
to and including termination of employment.
Waivers of the Code
Waivers of this Code will be granted on a case-by-case basis and only in extraordinary circumstances. Waivers of this Code may be made only by
the Board, or the appropriate committee of the Board, and will be promptly disclosed to the public.
Conclusion
This Code of Business Conduct and Ethics contains general guidelines for conducting the business of Trip.com Group consistent with the highest
standards of business ethics. If you have any questions about these guidelines, please contact the Compliance Officer. We expect all employees to adhere
to these standards. Each employee is separately responsible for his or her actions. Conduct that violates the law or this Code cannot be justified by
claiming that it was ordered by a supervisor or someone in higher management. If you engage in conduct prohibited by the law or this Code, you will be
deemed to have acted outside the scope of your employment. Such conduct will subject you to disciplinary action, including termination of employment.
Each subsidiary and affiliate of Trip.com Group shall prepare comprehensive and concrete rules to implement this Code based on its own
situations and needs.
Certification by the Chief Executive Officer
Pursuant to Section 302 of the Sarbanes-Oxley Act of 2002
EXHIBIT 12.1
I, Jane Jie Sun, certify that:
1.
2.
3.
4.
I have reviewed this annual report on Form 20-F of Trip.com Group Limited. (the “Company”);
Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the
statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this
report;
Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the
financial condition, results of operations and cash flows of the Company as of, and for, the periods presented in this report;
The Company’s other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in
Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and
15d-15(f)) for the Company and have:
(a)
(b)
(c)
(d)
Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision,
to ensure that material information relating to the Company, including its consolidated subsidiaries, is made known to us by others within
those entities, particularly during the period in which this report is being prepared;
Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our
supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for
external purposes in accordance with generally accepted accounting principles;
Evaluated the effectiveness of the Company’s disclosure controls and procedures and presented in this report our conclusions about the
effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
Disclosed in this report any change in the Company’s internal control over financial reporting that occurred during the period covered by
the annual report that has materially affected, or is reasonably likely to materially affect, the Company’s internal control over financial
reporting; and
5.
The Company’s other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to
the Company’s auditors and the audit committee of the Company’s board of directors (or persons performing the equivalent functions):
(a)
(b)
All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are
reasonably likely to adversely affect the Company’s ability to record, process, summarize and report financial information; and
Any fraud, whether or not material, that involves management or other employees who have a significant role in the Company’s internal
control over financial reporting.
Date: April 27, 2022
By: /s/ Jane Jie Sun
Name: Jane Jie Sun
Title: Chief Executive Officer
Certification by the Chief Financial Officer
Pursuant to Section 302 of the Sarbanes-Oxley Act of 2002
EXHIBIT 12.2
I, Cindy Xiaofan Wang, certify that:
1.
2.
3.
4.
I have reviewed this annual report on Form 20-F of Trip.com Group Limited (the “Company”);
Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the
statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this
report;
Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the
financial condition, results of operations and cash flows of the Company as of, and for, the periods presented in this report;
The Company’s other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in
Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and
15d-15(f)) for the Company and have:
(a)
(b)
(c)
(d)
Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision,
to ensure that material information relating to the Company, including its consolidated subsidiaries, is made known to us by others within
those entities, particularly during the period in which this report is being prepared;
Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our
supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for
external purposes in accordance with generally accepted accounting principles;
Evaluated the effectiveness of the Company’s disclosure controls and procedures and presented in this report our conclusions about the
effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
Disclosed in this report any change in the Company’s internal control over financial reporting that occurred during the period covered by
the annual report that has materially affected, or is reasonably likely to materially affect, the Company’s internal control over financial
reporting; and
5.
The Company’s other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to
the Company’s auditors and the audit committee of the Company’s board of directors (or persons performing the equivalent functions):
(a)
(b)
All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are
reasonably likely to adversely affect the Company’s ability to record, process, summarize and report financial information; and
Any fraud, whether or not material, that involves management or other employees who have a significant role in the Company’s internal
control over financial reporting.
Date: April 27, 2022
By: /s/ Cindy Xiaofan Wang
Name: Cindy Xiaofan Wang
Title: Chief Financial Officer
Certification by the Chief Executive Officer
Pursuant to Section 906 of the Sarbanes-Oxley Act of 2002
EXHIBIT 13.1
December 31, 2021 as filed with the Securities and Exchange Commission on the date hereof (the “Report”), I, Jane Jie Sun, Chief Executive Officer of
the Company, certify, pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that to my knowledge:
In connection with the Annual Report of Trip.com Group Limited (the “Company”) on Form 20-F for the year ended
(1) The Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934; and
(2) The information contained in the Report fairly presents, in all material respects, the financial condition and results of
operations of the Company.
Date: April 27, 2022
By: /s/ Jane Jie Sun
Name: Jane Jie Sun
Title: Chief Executive Officer
Certification by the Chief Financial Officer
Pursuant to Section 906 of the Sarbanes-Oxley Act of 2002
EXHIBIT 13.2
In connection with the Annual Report of Trip.com Group Limited (the “Company”) on Form 20-F for the year ended
December 31, 2021 as filed with the Securities and Exchange Commission on the date hereof (the “Report”), I, Cindy Xiaofan Wang, Chief Financial
Officer of the Company, certify, pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that to my
knowledge:
(1) The Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934; and
(2) The information contained in the Report fairly presents, in all material respects, the financial condition and results of
operations of the Company.
Date: April 27, 2022
By: /s/ Cindy Xiaofan Wang
Name: Cindy Xiaofan Wang
Title: Chief Financial Officer
Exhibit 15.1
Our ref
Direct tel
Email
Trip.com Group Limited
968 Jin Zhong Road
Shanghai 200335
People’s Republic of China
27 April 2022
Dear Sirs
Trip.com Group Limited (the “Company”)
We consent to the reference to our firm under the heading “Taxation” in the Company’s Annual Report on Form 20-F for the year ended 31 December
2021, which will be filed with the Securities and Exchange Commission in the month of April 2022 and further consent to the incorporation by
reference of the summary of our opinion under this heading into the Company’s registration statements on Form S-8 (No. 333-116567, No. 333-136264,
No. 333-146761, No. 333-218899, No. 333-230297 and No. 333-257784) that were filed on 17 June 2004, 3 August 2006, 17 October 2007, 22 June
2017, 15 March 2019 and 9 July 2021, respectively, and into the Company’s registration statement on Form F-3 (No. 333-233938) that was filed on
25 September 2019.
Yours faithfully
/s/ Maples and Calder (Hong Kong) LLP
Maples and Calder (Hong Kong) LLP
中国北京建国门外大街1号国贸写字楼2座 12-14层100004
12-14th Floor, China World Office 2, No. 1 Jianguomenwai Avenue, Beijing 100004, China
电话 Tel: +86 10 6563 7181 传真 Fax: +86 10 6569 3838
电邮 Email: beijing@tongshang.com 网址 Web: www.tongshang.com
Exhibit 15.2
April 27, 2022
Trip.com Group Limited
968 Jin Zhong Road
Shanghai 200335
People’s Republic of China
Dear Sirs,
We consent to the reference to our firm under the headings “Item 3. Key Information — D. Risk Factors,” “Item 4. Information on the Company — B.
Business Overview — PRC Government Regulations,” “Item 7. Major Shareholders and Related Party Transactions — B. Related Party Transactions”
and “Financial Statements — Notes to the Consolidated Financial Statements” in Trip.com Group Limited’s Annual Report on Form 20-F for the year
ended December 31, 2021, which will be filed with the Securities and Exchange Commission in the month of April 2022, and further consent to the
incorporation by reference of the summaries of our opinions under these captions into Trip.com Group Limited’s Registration Statements on Form S-8
(No. 333-116567, No. 333-136264, No. 333-146761, No. 333-218899, No. 333-230297 and No. 333-257784) that were filed on June 17, 2004,
August 3, 2006, October 17, 2007, June 22, 2017, March 15, 2019 and July 9, 2021, respectively, and Trip.com Group Limited’s Registration Statement
on Form F-3 (No. 333-233938) that was filed on September 25, 2019.
Yours faithfully,
/s/ Commerce & Finance Law Offices
Commerce & Finance Law Offices
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We hereby consent to the incorporation by reference in the Registration Statements on Form S-8 (No. 333-116567, No. 333-136264, No. 333-146761,
No. 333-218899, No. 333-230297 and No. 333-257784) and in the Registration Statement on Form F-3 (No. 333-233938) of Trip.com Group Limited of
our report dated April 27, 2022 relating to the financial statements and the effectiveness of internal control over financial reporting, which appears in
this Form 20-F.
Exhibit 15.3
/s/ PricewaterhouseCoopers Zhong Tian LLP
Shanghai, People’s Republic of China
April 27, 2022