GUARANTEE AGREEMENT
Exhibit 99.2
This GUARANTEE AGREEMENT (this “Agreement”), dated as of
April 26, 2019, is made by and among MAKEMYTRIP LIMITED, a limited liability company organized under the laws of Mauritius, with its registered offices at 19th
Floor, Building Xx. 0, XXX Xxxxx Xxxx, Xxxxxxxx, 000000, Xxxxx (the “Company”), MIH INTERNET SEA PTE. LTD., a limited liability company organized under the laws of
Singapore, with its registered office at 0 Xxxxxx Xxxx #00-00, Xxxx Xxxxxx, Xxxxxxxxx 000000 (“Indigo Parent”) and MIH B2C HOLDINGS B.V., a limited liability company
organized under the laws of the Netherlands, with its registered office at Xxxxxxxxxxxx 000, 0000XX, Xxxxxxxxx, Xxx Xxxxxxxxxxx (the “Guarantor”). Capitalized terms
used but not defined herein shall have the meanings ascribed to them in the Transaction Agreement (as defined below).
WHEREAS, Indigo Parent, the Company and solely with respect to Article XIII thereof, the Guarantor, are parties to a Transaction
Agreement dated as of October 18, 2016 (as amended, modified and supplemented from time to time, the “Transaction Agreement”);
WHEREAS, pursuant to the Share Purchase Agreement (the “Share Purchase
Agreement”), dated as of the date hereof by and among Indigo Parent, the Guarantor and Xxxxx.Xxx International, Ltd. (the “Investor”), Indigo Parent will
sell all its Class B Shares and Ordinary Shares to the Investor (“Ctrip Transfer”);
WHEREAS, in connection with the Ctrip Transfer, the Company and or its Affiliates desire to enter into an amended and restated investor
rights agreement with the Investor, as of the date hereof (“Investor Rights Agreement”);
WHEREAS, pursuant to Section 13.01(c) of the Transaction Agreement, Indigo Parent has agreed to deliver a written guarantee of the
Guarantor (or another controlling Affiliate of Indigo Parent reasonably acceptable to the Company) prior to the Ctrip Transfer; and
WHEREAS, Indigo Parent and the Guarantor desire for the Guarantor to provide a written guarantee in favor of the Company on the terms set
forth in this Agreement, effective as of the closing of the Ctrip Transfer (“Closing Date”).
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants and agreements herein contained, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, and intending to be legally bound hereby, the parties agree as follows:
1. Guarantee. (a) The Guarantor hereby absolutely, unconditionally and irrevocably guarantees, as a primary obligor and not merely as a
surety, (i) the due and punctual payment of all monetary obligations and liabilities of Indigo Parent under the Transaction Agreement and (ii) the due and punctual performance and observance of, and compliance with, all other covenants,
agreements, obligations, liabilities, indemnities and warranties of Indigo Parent under or pursuant to the Transaction Agreement (the obligations and liabilities referred to in clauses (i) and (ii) collectively being referred to herein as the “Guaranteed Obligations”).
(b) The Guarantor hereby irrevocably and unconditionally undertakes to the Company that, if and whenever Indigo Parent defaults for any reason in the performance of any of its obligations under the Transaction
Agreement, the Guarantor shall immediately on demand perform or satisfy such obligation in the manner set out in the Transaction Agreement as if it were the principal obligor.
(c) Such a guarantee from the Guarantor is (i) a continuing guarantee and shall extend to all of the relevant obligations of Indigo Parent under the Transaction Agreement regardless of any intermediate payment or
discharge in whole or in part; and (ii) in addition to, and is not in substitution for and shall not merge with or be prejudiced by, any other rights, remedies or security which the parties may at any time hold in respect of the relevant
obligations.
(d) The obligations of the Guarantor shall not be affected by any act, omission or matter which would reduce or release any of such obligations, including any dissolution of Indigo Parent, any change in the
constitution, status or control of Indigo Parent, any insolvency, liquidation, administration or other equivalent or similar proceedings of Indigo Parent, and the liability of the Guarantor shall continue or be reinstated.
(e) This guarantee shall be effective as of the Closing Date and remain in full force and effect until the Guaranteed Obligations under the Transaction Agreement have been irrevocably paid and discharged in full.
(f) The Guarantor represents and warrants to the Company on the date hereof and as of the Closing Date that:
(i) The Guarantor is a corporation or other entity duly organized, validly existing and, to the extent applicable, in good standing under the laws of the jurisdiction of its organization and
has the requisite corporate or other entity power and authority to own or lease all of its properties and assets and to carry on its business as it is now being conducted.
(ii) The Guarantor has all requisite power and authority to execute and deliver this Agreement and to perform and comply with its obligations hereunder. The execution and delivery by the
Guarantor of this Agreement has been duly authorized by all necessary corporate action on the part of the Guarantor, and no other corporate proceedings on the part of the Guarantor are necessary to authorize this Agreement.
(iii) The Guarantor has duly executed and delivered this Agreement, and, assuming due authorization, execution and delivery by the other parties hereto, this Agreement constitutes its legal,
valid and binding obligation, enforceable against the Guarantor in accordance with its terms (except insofar as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar Laws affecting
creditors’ rights generally, or by principles governing the availability of equitable remedies).
(iv) The Guarantor has provided the Company with a true, complete and accurate copy of the Share Purchase Agreement.
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2. Amendment of the Share Purchase Agreement. The Guarantor and Indigo Parent jointly and severally agree not to take steps to amend the
Share Purchase Agreement without the prior written consent of the Company, if such amendment (a) modifies the definition of the term “Outside Date” therein or (b) would in the reasonable determination of Indigo Parent and a majority of the
Independent Directors acting on behalf of the Company materially and adversely impact the rights of or protection to the minority shareholders of the Company.
3. Amendment of the Investor Rights Agreement. Subject to Applicable Law and the NASDAQ Stock Market Rules, the Company hereby agrees that
it will not, and will not permit any of its controlled affiliates to, without the prior written consent of Indigo Parent, amend, supplement or otherwise modify or waive provisions of the Investor Rights Agreement in any manner that could
reasonably be expected to prevent or materially and adversely impede, interfere with, hinder or delay the consummation of the Ctrip Transfer.
4. Consent. Indigo Parent irrevocably consents, and confirms that it has no objections, to the execution, delivery and performance of the
Investor Rights Agreement and the Share Purchase Agreement by the relevant parties thereto.
5. Termination. Notwithstanding anything contained elsewhere, this Agreement and all obligations of the parties hereunder shall
automatically terminate, without further action by any party hereto, upon the termination of the Share Purchase Agreement.
6. Notices. (a) In accordance with Section 14.02 of Transaction Agreement, Indigo Parent hereby notifies the Company that Indigo Parent’s
new address is the address set forth in item (b)(i) below. In accordance with Section 14.02 of Transaction Agreement, the Company hereby notifies Indigo Parent and Guarantor that the Company’s new address is the address set forth in item (b)(iii)
below.
(b) All notices, requests, claims, demands, waivers and other communications under this Agreement shall be in writing and shall be addressed to a party at the following address for such party:
(i) if for Indigo Parent, to:
MIH Internet Sea Private Limited
Taurusavenue 105
2132LS, Hoofddorp
The Netherlands
Attention: The General Counsel, Naspers Limited
Email: xxxxx.xxxxx@xxxxxxx.xxx
with copies to (which shall not constitute notice):
Xxxxx Xxxx
Email: xxxxx@xxxxxxx.xxx
Cravath, Swaine & Xxxxx LLP
XxxxXxxxx
Xxx Xxxxxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Attention: Xxxxx Xxxxxxx
Facsimile: x00 000 000 0000
Email: xxxxxxxx@xxxxxxx.xxx
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(ii) if for the Guarantor, to:
MIH B2C Holdings BV
Taurusavenue 105
2132LS, Hoofddorp
The Netherlands
Attention: The General Counsel, Naspers Limited
Email: xxxxx.xxxxx@xxxxxxx.xxx
with copies to (which shall not constitute notice):
Xxxxx Xxxx
Email: xxxxx@xxxxxxx.xxx
Cravath, Swaine & Xxxxx LLP
XxxxXxxxx
Xxx Xxxxxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Attention: Xxxxx Xxxxxxx
Facsimile: x00 000 000 0000
Email: xxxxxxxx@xxxxxxx.xxx
(iii) if for the Company, to:
MakeMyTrip Limited
00xx Xxxxx, Xxxxxxxx Xx. 0
XXX Xxxxx Xxxx
Xxxxxxxx, India, 122002
Attention: Xxxxx Xxxxx
Facsimile: x00 000 0000000
Email: xxxxxxxx@xx-xxx.xxx
with copies to (which shall not constitute notice):
Xxxxxx & Xxxxxxx LLP
0 Xxxxxxx Xxxxx #00-00
Xxxxxxxx Xxxxx
Xxxxxxxxx 000000
Attention: Xxxxxxx Xxxxxxxx / Xxxxx Xxxxx
Facsimile: x00 0000 0000
Email: xxxxxxx.xxxxxxxx@xx.xxx /
xxxxx.xxxxx@xx.xxx
or to such other addresses as shall be furnished in writing by the Guarantor to the other parties to the Transaction Agreement in accordance with the
Section 14.02 thereof.
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7. Miscellaneous.
7.1 Governing Law. This Agreement shall be governed by, and construed in accordance with, the Laws of the State of New York.
7.2 Assignment. Neither this Agreement nor any of the rights, interests or obligations under this Agreement shall be assigned, in whole or
in part, by operation of Law or otherwise by any of the parties hereto without the prior written consent of the other parties. Any purported assignment without such consent shall be void. Subject to the preceding sentences, this Agreement will be
binding upon, inure to the benefit of, and be enforceable by, the parties hereto and their respective successors and assigns.
7.3 Severability. If any term or other provision of this Agreement is invalid, illegal or incapable of being enforced by any rule or Law or
public policy, all other conditions and provisions of this Agreement shall nevertheless remain in full force and effect so long as the economic or legal substance of the transactions contemplated by this Agreement is not affected in any manner
materially adverse to any party. Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original
intent of the parties as closely as possible to the end that the transactions contemplated by this Agreement are fulfilled to the extent possible.
7.4 Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original and all of which
shall be considered one and the same agreement, and shall become effective when one or more counterparts have been signed by each of the parties hereto and delivered to the other parties.
7.5 Specific Enforcement. The parties agree that irreparable damage would occur in the event that any of the terms or provisions of this
Agreement were not performed by any party (the “defaulting party”) in accordance with their specific terms or were otherwise breached by such defaulting party. It is
accordingly agreed that, without posting a bond or other undertaking, notwithstanding anything to the contrary contained in this Agreement, either party shall be entitled to injunctive or other equitable relief to prevent breaches of this
Agreement by the defaulting party and to enforce specifically the terms and provisions hereof against the defaulting party, such remedy being in addition to any other remedy to which the party seeking specific relief may be entitled at law or in
equity. The provisions of this Section 7.5 shall apply in respect of any arbitration proceeding brought pursuant to this Agreement, as well as any litigation
permissibly brought pursuant to the terms hereof to enforce this Agreement. In the event that any action is brought by a party in equity to enforce the provisions of this Agreement, the defaulting party shall not allege, and the defaulting party
hereby waives the defense or counterclaim, that there is an adequate remedy at law.
7.6 Arbitration. (a) Except as otherwise expressly provided herein, all disputes arising out of or concerning the existence, validity,
interpretation or performance of this Agreement shall be resolved by arbitration in accordance with the rules of arbitration then in effect and administered by the International Centre for Dispute Resolution (the “ICDR”, and such rules, the “Rules”); provided that in the event the Rules conflict or are inconsistent with the
procedures set forth in this Section 7.6, the procedures set forth in this Section 7.6
shall govern and control. The decision of the arbitration panel to be appointed hereunder (the “Arbitration Panel”) shall be final and binding on the parties and the
parties hereby irrevocably waive any right of appeal or judicial review with respect to any aspect of the arbitration award. The arbitration award may be enforced in any court of competent jurisdiction.
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(b) The Arbitration Panel shall consist of three arbitrators. Each party shall appoint a single arbitrator and the third arbitrator, who shall preside over the Arbitration Panel, shall be chosen by the two
party-appointed arbitrators. If the responding party fails to appoint an arbitrator or if the two party-appointed arbitrators fail to appoint the third arbitrator within the prescribed time periods set forth in Section 7.6(c), then the appointments shall be made by the ICDR pursuant to the Rules.
(c) Arbitration may be commenced by any party by giving written notice setting out the nature of the claim to the other party and to the ICDR pursuant to the Rules. Within fifteen (15) days of such notice, the party
demanding arbitration shall appoint its arbitrator. Within fifteen (15) days of that appointment, the other party shall appoint its arbitrator. Within thirty (30) days after the appointment of both party-appointed arbitrators, those two
arbitrators shall appoint the third arbitrator.
(d) The arbitration and any evidentiary proceedings shall be conducted in English. The situs of the arbitration shall be New York City; provided that the Arbitration Panel may conduct proceedings in other locations
if the parties so agree or if necessary for the taking of evidence.
(e) Each arbitrator shall be impartial and shall be experienced with respect to commercial matters.
(f) Any litigation commenced by any party in aid of the arbitration, or for injunctive relief to preserve assets, maintain the status quo or prevent any act pending the result of the arbitration shall be commenced
only in any state court of the State of New York located in New York County or the United States District Court for the Southern District of New York, and any appellate court thereof, unless otherwise mutually agreed by the parties. With respect
to any such litigation, each party hereby irrevocably consents to the exclusive jurisdiction of such courts and waives any objection to personal jurisdiction of and venue in such courts with respect to such proceedings and waives any claim that
such forum is inconvenient. EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE IN CONNECTION WITH ANY SUCH LITIGATION IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE EACH SUCH PARTY HEREBY IRREVOCABLY
AND UNCONDITIONALLY WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY SUCH LITIGATION. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (A) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR
OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF ANY SUCH LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (B) EACH PARTY UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (C) EACH PARTY MAKES THIS WAIVER VOLUNTARILY AND
(D) EACH PARTY HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 7.6(F).
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(g) The fact of arbitration, the claims and arguments made in the arbitration and any arbitration award shall be confidential and not be disclosed to any other person, except as required by Law or legal duty or in
order to confirm, challenge or enforce the arbitration award. Materials and documents of any party utilized or produced in connection with the arbitration that are not otherwise public shall be treated as confidential by the other party and
shall not be disclosed or utilized by the other party other than in the arbitration.
(h) The Arbitration Panel is authorized to award monetary damages and to grant injunctive relief, including interim relief pending the final award. Any interim or provisional measures in the form of conservatory or
injunctive relief ordered by the Arbitration Panel shall, to the extent permitted by applicable Law, be deemed final arbitration awards for purposes of enforceability. Any monetary award may include interest and shall be stated and payable in
U.S. dollars. The Arbitration Panel is authorized to allocate as part of its award the costs and expenses of the arbitration, excluding attorney’s fees, as the Arbitration Panel deems reasonable. The Arbitration Panel is not authorized to award
punitive or exemplary damages.
(i) The parties shall bear their own costs incurred in connection with the arbitration and share equally the costs of administration of the arbitration and the fees and expenses of the Arbitration Panel.
[Signature Page Follows]
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IN WITNESS WHEREOF, this Agreement has been duly executed and delivered as of the date first written above.
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MAKEMYTRIP LIMITED
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By:
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/s/ Xxxxx Xxxxx |
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Name:
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Xxxxx Xxxxx |
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Title:
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Group Chief Financial Officer |
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MIH INTERNET SEA PTE. LTD.
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By:
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/s/ Xxxxxx Xx Xxx Xxx |
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Name:
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Xxxxxx Xx Wui Mee |
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Title:
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Director |
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MIH B2C HOLDINGS B.V.
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By:
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/s/ Xxxxx xx Xxxx |
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Name:
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Xxxxx xx Xxxx |
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Title:
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Director |
