FOURTH AMENDED AND RESTATED SHAREHOLDERS AGREEMENT
EXHIBIT 10.3
FOURTH AMENDED AND RESTATED SHAREHOLDERS AGREEMENT
This Fourth Amended and Restated Shareholders Agreement (this “Agreement”) is dated as of
this 16th day of July, 2010 and made by and among:
| (1) | SB ASIA INVESTMENT FUND II L.P., a fund incorporated under the laws of the Cayman Islands with its registered offices at Xxxxxx and Xxxxxx Corporate Services Limited, PO Box 309GT, Xxxxxx House, South Church Street, Xxxxxx Town, Grand Cayman, Cayman Islands (“SAIF”); | |
| (2) | TRAVOGUE ELECTRONIC TRAVEL PRIVATE LIMITED, a company incorporated under the Indian Companies Act, 1956, as amended, and having its registered office C 210, Second Floor, Xxxxxxxxx Xxxxxxx, Xxx Xxxxx, 000 000, Xxxxx (“Travogue”); | |
| (3) | MR. XXXX XXXXX, a citizen and resident of the Republic of India residing at X-0/00X, XXX Xxxxx XX, Xxxxxxx, Xxxxxxx, Xxxxx, XX. XXXXX XXXXX, a citizen and resident of the Republic of India residing at X-00X, XX Xxxxx, Xxxxxxx Xxxxxx, Xxx Xxxxx - 110 048, India and MR. XXXXXX XXXXXX, a citizen and resident of the Republic of India residing at X-000, XX Xxxxx, Xxxxxxxxx X - Xxxxxxx, Xxxxxxx, Xxxxx (collectively, the “Founders”); | |
| (4) | HELION VENTURE PARTNERS LLC a company established under the laws of Mauritius, having its principal office at International Management (Mauritius) Ltd Les Cascades Building Xxxxx Xxxxxx Street Port Louis, Mauritius (“Helion”); | |
| (5) | SIERRA VENTURES VIII-A, L.P., a Californian Limited partnership, SIERRA VENTURES VIII-B, L.P., a Californian Limited partnership and SIERRA VENTURES ASSOCIATES VIII, LLC, a Californian limited liability company, each with its registered office at 0000 Xxxx Xxxx Xxxx Xxxxx 000, Xxxxx Xxxx, Xxxxxxxxxx 00000, XXX (collectively, “Sierra”); | |
| (6) | TIGER GLOBAL PRIVATE INVESTMENT PARTNERS IV, L.P., an exempted limited partnership formed under the laws of the Cayman Islands (“PIP IV”), and TIGER GLOBAL PRIVATE INVESTMENT PARTNERS V, L.P., an exempted limited partnership formed under the laws of the Cayman Islands, each with its principal office at 000 Xxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, XX 00000, XXX (“PIP V” and together with PIP IV, “Tiger Fund”); | |
| (7) | XXX XXXXX, a resident of the United States of America with an address c/o Tiger Global Management, L.L.C., 000 Xxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, XX 00000, XXX (“Xxxxx”); | |
| (8) | XXXXX XXXXX, a resident of the United States of America with an address c/o Tiger Global Management, L.L.C., 000 Xxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, XX 00000, XXX (“Dewan”); | |
| (9) | XXXXX XXXXXXXX, a resident of the United States of America with an address of c/o Tiger Global Management, L.L.C., 000 Xxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, XX 00000, XXX (“Shleifer” and together with PIP IV, PIP V, Xxxxx and Dewan, “Tiger”); and |
Page 1 of 20
| (10) | MAKEMYTRIP LIMITED (previously known as International Web Travel Private Limited), a company incorporated in Mauritius, with company number 24478/5832 and having its registered office at Xxxxxx House, 5 President Xxxx Xxxxxxx Street, Port Louis, Republic of Mauritius (the “Company”). |
Recitals
A. The Parties (as defined below) hereto are party to and have executed a Third Amended and
Restated Shareholders Agreement dated May 20, 2008 (the “Previous Shareholders Agreement”).
B. The Company proposes to undertake an initial public offering (the “IPO”) of its
ordinary shares in the United States and in this connection, has submitted a listing application to
the NASDAQ Global Market for a listing of its ordinary shares on the NASDAQ Global Market. In
connection with the IPO, the Parties have agreed to terminate the Previous Shareholders Agreement
and to accept the terms of this Agreement, with effect from the date of completion of the IPO (the
“Effective Date”).
NOW, THEREFORE, in consideration of the premises and of the mutual agreements, covenants,
representations and warranties hereinafter contained, and for other good and valuable consideration
the receipt and sufficiency of which is hereby acknowledged, the Previous Shareholders Agreement
shall be superseded and replaced in its entirety by this Agreement, and the Parties to this
Agreement hereby agree as follows:
AGREEMENT
SECTION I
DEFINITIONS
DEFINITIONS
1.1 Definitions. In this Agreement, the following terms shall have the following
meanings, unless the context otherwise requires:
“Applicable Law” means any statute, law, ordinance, rule, administrative
interpretation, regulation, order, writ, injunction, directive, judgment or decree applicable to
any of the Parties or to any of their respective properties, assets, officers, directors or
employees, as the case may be from time to time;
“Commission” means the United States Securities and Exchange Commission, or any
successor governmental agency or authority thereto;
“Competitor” means any entity specified in the Schedule to this Agreement which is in
the business of providing Travel Services, or any Person who holds more than 10% of the fully
diluted share capital of any of the entities specified in the Schedule to this Agreement, or any
Person who acquires any entity specified in the Schedule to this Agreement (as long as the
erstwhile competitor constitutes more than 50% of the total gross revenues from the provision of
Travel Services of the consolidated entity);
“Dispute” has the meaning given to such term in Section 4.1(a);
Page 2 of 20
“Equity Shares” shall mean the ordinary shares of the Company of a par value of
USD0.01 each for the time being;
“Exchange Act” means the United States Securities Exchange Act of 1934, as amended,
and the rules and regulations promulgated thereunder;
“Parties” means, collectively, SAIF, Travogue, each of the Founders, Helion, Sierra,
PIP IV, PIP V, Fixel, Shleifer, Dewan and the Company and their successors and assigns, and any
other Person that becomes a party to this Agreement in accordance with the terms hereof, and
“Party” means any one of such Persons individually;
“Person” includes any individual, sole proprietorship, partnership, unincorporated
association, unincorporated syndicate, unincorporated organization, trust, body corporate or other
similar entity, and a natural person in his capacity as trustee, executor, administrator, or other
legal representative;
“Registrable Shares” means:
(i) any Equity Shares held by any of the Shareholders or the employees/management of the
Company or its Subsidiaries; and
(ii) any other ordinary shares of the Company issued in respect of the Equity Shares described
in clause (i) above pursuant to stock splits, stock dividends, reclassifications,
recapitalizations, or similar events;
provided, however, that Equity Shares that are Registrable Shares shall cease to be
Registrable Shares:
(a) upon any sale pursuant to a Registration Statement or Rule 144 under the Securities Act,
(b) with respect to a Shareholder, when such Shareholder is eligible to sell, transfer or
otherwise convey all of such Shareholder’s Registrable Shares without restriction pursuant to
Applicable Law, or
(c) upon any sale in any manner to a person or entity which is not entitled to the rights
provided by this Agreement;
“Registration Expenses” has the meaning given to such term in Section 3.4;
“Registration Statement” means a registration statement of the Company, concerning the
sale of its securities to the public, on an appropriate form under the Securities Act, including a
prospectus included therein, all amendments and supplements thereto (including post-effective
amendments) and all exhibits and all material incorporated by reference therein;
“Securities Act” means the United States Securities Act of 1933, as amended, and the
rules and regulations promulgated thereunder;
Page 3 of 20
“Shareholders” means SAIF, Travogue, the Founders, Helion, Sierra, PIP IV, PIP V,
Fixel, Shleifer, Dewan, and such other Persons as may become parties to this Agreement in
accordance with the terms hereof and holding a legal or beneficial interest in the Equity Shares,
together with their successors and assigns, collectively, and “Shareholder” means any one of such
Persons individually;
“Subsidiaries” shall mean MakeMyTrip (India) Private Limited and XxxxXxXxxx.xxx Inc.;
“Travel Services” shall mean travel related services of selling and/or promotion of
air tickets, hotel reservations, and packaged tours;
“UNCITRAL Rules” has the meaning given to such term in Section 4.1(b); and
“USD” or “United States Dollars” shall mean the lawful currency of the United
States of America.
1.2 Headings. The headings and subheadings in this Agreement are included for convenience
and identification only and are not intended to describe, interpret, define or limit the scope,
extent or intent of this Agreement or any provision hereof in any manner whatsoever.
1.3 Interpretation; Number and Gender. The definitions in Section 1.1 shall apply equally
to both the singular and plural form of the terms defined. Whenever the context may require, any
pronoun shall include the corresponding masculine, feminine and neuter form. The words “include”,
“includes” and “including” shall be deemed to be followed by the phrase “without limitation”.
Unless the context otherwise requires, (a) all references to Sections, paragraphs and clauses are
to Sections, paragraphs and clauses in this Agreement; and (b) the terms “herein”, “hereof”,
“hereto”, ‘hereunder” and words of similar import refer to this Agreement as a whole. All
references in this Agreement to statutory provisions shall be construed as meaning and including
references to: (a) any statutory modification, consolidation or re-enactment (whether before or
after the date of this Agreement) for the time being in force; and (b) all statutory instruments or
orders made pursuant to a statutory provision.
SECTION II
EFFECTIVE DATE
EFFECTIVE DATE
This Agreement shall only come into force and effect from the Effective Date. In the event
that the Effective Date does not occur by December 31, 2010, this Agreement shall be terminated.
SECTION III
REGISTRATION RIGHTS
REGISTRATION RIGHTS
3.1 Demand Registration Rights.
(a) Subject to the terms of this Agreement, at any time or from time to time after the date
falling 180 days after the consummation of the IPO, one or more of the Shareholders may request, in
writing, that the Company effect a registration under the
Page 4 of 20
Securities Act of all or any part of the Registrable Shares owned by the Shareholders, on such
forms and in the manner considered appropriate by the Shareholders (provided that the Registrable
Shares to be so registered have a proposed aggregate offering price net of underwriting
commissions, if any, of at least US$5,000,000 in the aggregate). Upon receipt of any such request,
the Company shall promptly give written notice of such proposed registration to all Shareholders
holding Registrable Shares. Such other Shareholders shall have the right, by giving written notice
to the Company within thirty (30) days after the Company provides its notice, to elect to have
included in such registration such number of their Registrable Shares as such Shareholders may
request in such notice of election, subject to the approval of the underwriter(s) managing the
offering (if any). Notwithstanding any other provision of this Section 3.1, if such underwriter(s)
advises the Company that marketing factors require a limitation of the number of Equity Shares to
be included in such offering, then the Company shall advise all holders of Registrable Shares which
would otherwise have been included in such registration that the number of Registrable Shares that
may be included in such registration shall be allocated to the holders of such Registrable Shares
on a pro rata basis based upon their total ownership of Registrable Shares. If any holder would
thus be entitled to include more Equity Shares than such holder requested to be registered, the
excess shall be allocated among the other requesting holders on a pro rata basis based upon the
number of Registrable Shares requested by each such holder to be included in the registration. Any
Registrable Shares excluded or withdrawn from such registration shall be withdrawn from the
registration. Subject to the foregoing, the Company shall, as expeditiously as possible, use all
commercially reasonable efforts to effect the registration of all Registrable Shares that the
Company has been requested to register. Such registration shall be done on such forms and in such
manner as is considered appropriate by those holding a majority of the Registrable Shares to be
registered in such registration.
(b) At any time after the Company becomes eligible to file a Registration Statement on Form
F-3 (or any similar or successor form for which the Company then qualifies relating to secondary
offerings), one or more of the Shareholders will have the right to require the Company to effect
the registration on Form F-3 (or any similar or successor form for which the Company then
qualifies) of all or any portion of the Registrable Shares held by the Shareholders. Upon receipt
of any such request, the Company shall promptly give written notice of such proposed registration
to all other Shareholders holding Registrable Shares. Such other Shareholders shall have the
right, by giving written notice to the Company within thirty (30) days after the Company provides
its notice, to elect to have included in such registration such number of their Registrable Shares
as such Shareholders may request in such notice of election. Thereupon, the Company shall, as
expeditiously as possible, use all commercially reasonable efforts to effect the registration on
Form F-3 (or any similar or successor form for which the Company then qualifies) of all Registrable
Shares that the Company has been requested to register (provided that the Company shall not be
required to effect any registration of Registrable Shares unless such Registrable Shares have a
proposed aggregate offering price net of underwriting commissions (if any) of at least US$5,000,000
in the aggregate).
(c) The Company shall not be required to effect:
(i) more than two registrations in any twelve month period pursuant to
sub-section (a) above; and
(ii) more than two registrations in any twelve month period pursuant to
sub-section (b) above,
Page 5 of 20
provided, however, that, in each case, no Shareholder may make more than one request in any six
month period.
(d) The Company shall not be obligated to register any Registrable Shares pursuant to this
Section 3.1:
(i) if, within ten (10) days of the receipt of any request from any Shareholder
to register Registrable Shares under this Section 3.1, the Company gives notice to
the Shareholders requesting registration of its bona fide intention to effect the
filing for its own account of a Registration Statement of Equity Shares within sixty
(60) days of the receipt of such request; provided that the Company is actively
employing in good faith its reasonable best efforts to cause such Registration
Statement to become effective within sixty (60) days of its initial filing and,
provided further that the Shareholders shall be entitled to join such registration
upon the terms and subject to the conditions of this Agreement; or
(ii) during the period starting with the date of filing by the Company of, and
ending six (6) months following the effective date of, any Registration Statement
pertaining to Equity Shares; provided that the Shareholders shall be entitled to
join such registration upon the terms and subject to the conditions of this
Agreement; or
(iii) if, after receiving a request for registration from any Shareholder
pursuant to Section 3.1 hereof, the Company furnishes to the Shareholders a notice
signed by the chief executive officer of the Company stating that, in the good faith
judgment of the Company’s board of directors, it would be materially detrimental to
the Company or its members for the requested Registration Statement to be filed in
the near future, then the Company shall have the right to defer such requested
registration for such period during which such registration would be considered by
the Company to be materially detrimental; provided that such deferral by the Company
shall not exceed 180 days from the receipt of any such request duly submitted by
Shareholders under Section 3.1 to register Registrable Shares and, provided further,
that the Company may not register any of its other securities during such 180-day
period. Notwithstanding anything to the contrary herein, the Company shall not be
entitled to exercise this right to defer a requested registration more than once in
any 12-month period.
3.2 Incidental Registration.
(a) Whenever the Company proposes to file a Registration Statement, including, but not limited
to, Registration Statements relating to secondary offerings of securities of the Company, but
excluding Registration Statements pursuant to Section 3.1 and relating to employee benefit plans or
with respect to corporate reorganizations, at any time and from time to time, it will, at least
thirty (30) days prior to such filing, give written notice to all Shareholders of its intention to
do so and, upon the written request of a Shareholder or Shareholders given within twenty (20) days
after the Company provides such notice (which request shall state the intended method of
disposition of such Registrable Shares), the Company shall use its reasonable efforts to cause all
Registrable Shares that the Company has been requested by such Shareholder or Shareholders to
register or to be registered under the
Page 6 of 20
Securities Act to the extent necessary to permit their sale or other disposition in accordance
with the intended methods of distribution specified in the request of such Shareholder or
Shareholders; provided that the Company shall have the right to postpone or withdraw any
registration effected pursuant to this Section 3.2 without obligation to any Shareholder.
(b) In connection with any registration under this Section 3.2 involving an underwriting, the
Company shall not be required to include any Registrable Shares in such registration unless the
holders thereof accept the terms of the underwriting as agreed upon between the Company and the
underwriters selected by it, and then only in such quantity as will not, in the good faith opinion
of the underwriter(s), jeopardize the success of such offering. If, in the reasonable opinion of
the managing underwriter(s), the registration of all, or part of, the Registrable Shares that the
holders have requested to be included would materially and adversely affect such public offering,
then the Company shall be required to include in the registration only that number of Registrable
Shares, if any, that the managing underwriter(s) in good faith believes may be sold without causing
such adverse effect. If the number of Registrable Shares to be included in the offering in
accordance with the foregoing is less than the total number of Equity Shares that the holders of
Registrable Shares have requested to be included, the Shareholders holding Registrable Shares who
have requested registration shall participate in the registration pro rata based upon their total
ownership of Registrable Shares. If any holder would thus be entitled to include more Equity
Shares than such holder requested to be registered, the excess shall be allocated among the other
requesting holders on a pro rata basis based upon the number of Registrable Shares requested by
each such holder to be included in the registration.
3.3 Registration Procedures. If and whenever the Company is required by the provisions of
this Agreement to use all commercially reasonable efforts to effect the registration of any of the
Registrable Shares under the Securities Act, the Company shall:
(a) prepare and file with the Commission a Registration Statement with respect to such
Registrable Shares and use all commercially reasonable efforts to cause that Registration Statement
to become and remain effective for the earlier of one hundred and twenty (120) days or until the
completion of the distribution;
(b) as expeditiously as possible prepare and file with the Commission any amendments and
supplements to the Registration Statement and the prospectus included in the Registration Statement
as may be necessary to keep the Registration Statement effective until the earlier of the sale of
all Registrable Shares covered thereby or 90 days after the effective date thereof;
(c) as expeditiously as possible furnish to each selling Shareholder such reasonable number of
copies of the Registration Statement, each amendment and supplement thereto, prospectus, including
a preliminary prospectus, in conformity with the requirements of the Securities Act, and such other
documents as the selling Shareholder may reasonably request in order to facilitate the public sale
or other disposition of the Registrable Shares owned by the selling Shareholder;
(d) as expeditiously as possible use all commercially reasonable efforts to register or
qualify the Registrable Shares covered by the Registration Statement under the applicable
securities or Blue Sky laws of such states as the selling Shareholders shall reasonably request,
and do any and all other acts and things that may be necessary or desirable to enable the selling
Shareholders to consummate the public sale or other disposition in such
Page 7 of 20
states of the Registrable Shares owned by the selling Shareholder provided, however, that the
Company shall not be required in connection with this paragraph (d) to qualify as a foreign
corporation or execute a general consent to service of process in any jurisdiction;
(e) notify each selling Shareholder of such Registrable Shares at any time when a Registration
Statement related thereto becomes effective under the Securities Act, of the happening of any event
as a result of which, or in the event the Company becomes aware that, the prospectus included in
such Registration Statement contains an untrue statement of a material fact or omits any fact
necessary to make the statements therein not misleading, and, at the request of any such seller,
the Company will prepare a supplement or amendment to such prospectus so that, as thereafter
delivered to the purchasers of such Registrable Shares, such prospectus will not contain any untrue
statement of a material fact or omit to state any fact necessary to make the statements therein not
misleading;
(f) cause all such Registrable Shares to be listed on the NASDAQ or such other stock exchange
on which the Equity Shares are then listed;
(g) if required by the underwriters, in the event of any underwritten public offering, enter
into and perform its obligations under an underwriting agreement in customary form with the
managing underwriter(s) of such offering. Each Shareholder participating in such underwritten
offering shall also enter into and perform its obligations under such an agreement; and
(h) in the event of any underwritten offering, furnish, at the request of the managing
underwriter(s), on the date that such Registrable Shares are delivered to the underwriters for
sale: (i) an opinion, dated as of such date, from the counsel representing the Company for the
purpose of such registration, in such form and substance as is customarily given to underwriters in
an underwritten public offering and reasonably satisfactory to the managing underwriter(s),
addressed to the underwriters; and (ii) a letter dated as of such date, from the independent
certified public accountants of the Company, in such form and substance as is customarily given by
independent certified public accountants to underwriters in an underwritten public offering and
reasonably satisfactory to the managing underwriter(s), addressed to the underwriters.
If the Company has delivered preliminary or final prospectuses to the selling Shareholders and
after having done so the prospectus is amended to comply with the requirements of the Securities
Act or because the prospectus contains a material misstatement or omission, the Company shall
promptly notify the selling Shareholders and, if requested, the selling Shareholders shall
immediately cease making offers of Registrable Shares and return all prospectuses to the Company.
The Company shall promptly provide the selling Shareholders with revised prospectuses and,
following receipt of the revised prospectuses, the selling Shareholders shall be free to resume
making offers of the Registrable Shares.
3.4 Allocation of Expenses. The Company will pay all Registration Expenses (as
defined below) of all registrations under this Agreement; provided, however, that if a registration
under Section 3.1 is withdrawn at the request of the Shareholders requesting such registration
(other than as a result of information concerning the business or financial condition of the
Company that is made known to the Shareholders after the date on which such registration was
requested) and if the requesting Shareholders elect not to have such registration counted as a
registration requested under Section 3.1, the requesting Shareholders shall pay the Registration
Expenses of such registration pro rata in accordance with the
Page 8 of 20
number of their Registrable Shares included in such registration. For purposes of this
Section, the term “Registration Expenses” shall mean all expenses incurred by the Company
in complying with this Agreement, including, without limitation, all registration and filing fees,
exchange listing fees, printing expenses, road show expenses, fees and disbursements of counsel for
the Company, the reasonable fees and expenses of one (1) special counsel selected by the selling
Shareholders to represent the selling Shareholders, state Blue Sky fees and expenses (if any), fees
and expenses of the Company’s independent auditors, and the expense of any special audits
incidental to or required by any such registration, but excluding underwriting discounts, selling
commissions and the fees and expenses of selling Shareholders’ own counsel (other than the counsel
selected to represent all selling Shareholders).
3.5 Indemnification with respect to Underwritten Offering. In the event that Registrable
Shares are sold pursuant to a Registration Statement in an underwritten offering pursuant to this
Section 3:
(a) the Company agrees to enter into an underwriting agreement containing customary
representations and warranties with respect to the business and operations of an issuer of the
securities being registered and customary covenants and agreements to be performed by such issuer,
including without limitation customary provisions with respect to indemnification by the Company of
the underwriters of such offering; and
(b) (i) to the extent permitted by Applicable Law, the Company will indemnify and hold
harmless the seller of such Registrable Shares, each underwriter of such Registrable Shares and
each other person, if any, who controls such seller or underwriter within the meaning of the
Securities Act or the Exchange Act against any losses, claims, damages or liabilities (joint or
several) to which any of the foregoing persons may become subject under the Securities Act, the
Exchange Act, state securities or Blue Sky laws or otherwise, insofar as such losses, claims,
damages, or liabilities (or actions in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact contained in such Registration Statement,
including any preliminary prospectus or final prospectus contained in the Registration Statement,
or any amendment or supplement to such Registration Statement, or arise out of or are based upon
the omission or alleged omission to state a material fact required to be stated therein, or
necessary to make the statements therein not misleading; and the Company will reimburse each such
seller, underwriter and controlling person for any legal or other expenses reasonably incurred by
such seller, underwriter or controlling person in connection with investigating or defending any
such loss, claim, damage, liability or action as such expenses are incurred; provided, however,
that the indemnity agreement contained in this Section 3.5(b)(i) shall not apply to amounts paid in
settlement of any such loss, claim, damage, liability or action if such settlement is effected
without the consent of the Company (which consent shall not be unreasonably withheld), nor shall
the Company be liable in any such case for any such loss, claim, damage, liability or action to the
extent that it arises out of or is based upon any untrue statement or omission made in such
Registration Statement, preliminary prospectus or final prospectus, or any such amendment or
supplement, in reliance upon and in conformity with written information concerning a Shareholder
furnished by such Shareholder expressly for use in connection with such registration by any such
Shareholder, controlling person or other aforementioned person;
(ii) to the extent permitted by law, each selling Shareholder will indemnify
and hold harmless the Company, each of its directors, each of its
Page 9 of 20
officers who has signed the Registration Statement, each person, if any, who
controls the Company or any such underwriter within the meaning of the Securities
Act or the Exchange Act, any other Shareholder selling securities in such
Registration Statement and any controlling person of any such other Shareholder,
against any losses, claims, damages or liabilities (joint or several) to which any
of the foregoing persons may become subject, under the Securities Act, the Exchange
Act, state securities or Blue Sky laws or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereto) arise out of or are based
upon any untrue statement or alleged untrue statement of a material fact contained
in such Registration Statement, including any preliminary prospectus or final
prospectus contained in the Registration Statement, or any amendment or supplement
to such Registration Statement, or arise out of or are based upon the omission or
alleged omission to state a material fact required to be stated therein, or
necessary to make the statements therein not misleading, if the statement or
omission was made in reliance upon and in conformity with written information
concerning such Shareholder furnished by such Shareholder expressly for use in
connection with such registration; and each such Shareholder will reimburse any
person intended to be indemnified pursuant to this subsection 3.5(b)(ii) for any
legal or other expenses reasonably incurred by such person in connection with
investigating or defending any such loss, claim, damage, liability or action as such
expenses are incurred; provided, however, that the indemnity agreement contained in
this Section 3.5(b)(ii) shall not apply to amounts paid in settlement of any such
loss, claim, damage, liability or action if such settlement is effected without the
consent of the Shareholder (which consent shall not be unreasonably withheld), and
provided that in no event shall any indemnity under this subsection 3.5(b)(ii)
exceed the net proceeds from the offering received by such Shareholder;
(iii) notwithstanding the foregoing, to the extent that the provisions on
indemnification and contribution contained in the underwriting agreement entered
into in connection with the underwritten public offering are in conflict with the
foregoing provisions, the provisions in the underwriting agreement shall control;
and
(iv) the obligations of the Company and Shareholders under this Section 3.5
shall survive the completion of any offering of Registrable Shares in a Registration
Statement under this Section 3 and otherwise.
3.6 Information by Shareholder. Each holder of Registrable Shares included in any
registration shall furnish to the Company such information regarding such holder and the
distribution proposed by such holder as the Company may reasonably request in writing and as shall
be required in connection with any registration, qualification or compliance referred to in this
Agreement.
3.7 Limitations on Subsequent Registration Rights. From and after the Effective Date of
this Agreement, the Company shall not, without the prior written consent of the holders of a
majority of the Registrable Shares then outstanding, enter into any agreement with any holder or
prospective holder of any Equity Shares that would allow such holder or prospective holder (a) to
include such Equity Shares in any Registration Statement filed pursuant to Section 3 hereof, unless
under the terms of such agreement such holder or prospective holder may
Page 10 of 20
include such Equity Shares in any such registration only to the extent that the inclusion of such
Equity Shares will not reduce the amount of Registrable Shares of the Shareholders that are to be
included in such registration; (b) to demand registration of their securities; or (c) to cause the
Company to include such Equity Shares in any Registration Statement filed pursuant to Section 3
hereof on a basis more favorable to such holder or prospective holder than is provided to the
Shareholders hereunder.
SECTION IV
MISCELLANEOUS
MISCELLANEOUS
4.1 Arbitration.
(a) The Parties agree that in the event of any disputes, differences, controversies and
questions directly or indirectly arising at any time under, out of, in connection with or in
relation to this Agreement (or the subject matter of this Agreement) including, without limitation,
all disputes, differences, controversies and questions relating to the validity, interpretation,
construction, performance and enforcement of any provision of this Agreement (“Dispute”),
the Parties shall attempt to resolve the Dispute through good faith consultation and such
consultation shall begin promptly after one Party has given to the other Parties a written request
for such consultation.
(b) In the event of such consultation does not result in a resolution of such Dispute, then
within a period of thirty (30) days of the same being referred to consultation any Party may refer
such Dispute to final and binding arbitration. Such arbitration shall be governed by the UNCITRAL
Arbitration Rules (the “UNCITRAL Rules”) and shall be held in the State of New York. All
proceedings of such arbitration shall be in the English language. Courts located in the State of
New York shall be vested with non-exclusive jurisdiction with respect to matters ancillary to the
arbitral process, including, in particular, proceedings to compel or otherwise in support of the
arbitral process and the Parties expressly submit to the jurisdiction of such courts. The Parties
to this Agreement specifically agree that no proceedings shall be brought in any court or
administrative tribunal for the purpose of seeking to stay, enjoin, or otherwise interfere with the
consultation or arbitral processes hereunder, including any court or administrative tribunal
located within India or Mauritius or the United States. Judgment upon the arbitration award may be
entered in any court of competent jurisdiction or application may be made to such court for a
judicial acceptance of the award and an order of enforcement, as the case may be.
(c) The Parties agree that the arbitral panel shall comprise of a panel of three arbitrators,
one arbitrator to be appointed by the Party or Parties bringing the claim, one arbitrator to be
appointed by the respondents named, and the third arbitrator to be appointed by the first two
arbitrators, all in accordance with the UNCITRAL Rules. In the event that any appointments are not
made as specified herein within 14 (fourteen) days of notification by either party of a Dispute,
such appointments shall be made in accordance with the UNCITRAL Rules.
(d) Arbitration awards rendered shall be final and binding and shall not be subject to any
form of appeal. The losing party(ies), as determined by the arbitrators, shall pay all reasonable
out-of-pocket expenses (including, without limitation, reasonable attorneys’ fees) incurred by the
prevailing party(ies), as determined by the arbitrators, in connection with any Dispute unless the
arbitrators direct otherwise.
Page 11 of 20
4.2 Further Assurances. The Parties shall, with reasonable diligence, do all such acts and
things and provide all such reasonable assurances as may be required to consummate the transactions
contemplated by this Agreement, and each Party shall provide such further documents or instruments
required by any other Party as may be reasonably necessary or desirable to effect the purpose of
this Agreement and to carry out its provisions.
4.3 Benefit of the Agreement. This Agreement shall enure to the benefit of and be binding
upon successors and permitted assigns of the Parties hereto.
4.4 Entire Agreement. This Agreement constitutes the entire agreement between the Parties
with respect to the subject matter of this Agreement and cancels and supersedes any prior
understandings and agreements between the Parties with respect to such subject matter.
4.5 Amendments and Waivers. No amendment to this Agreement shall be valid or binding
unless set forth in writing and duly executed by the Company and Shareholders holding not less than
sixty six and two-thirds percent (66 2/3%) of the Registrable Shares (including in all cases, Mr.
Xxxx Xxxxx, for so long as Mr. Xxxx Xxxxx owns at least five percent (5%) of the Equity Shares),
provided, however, that the written consent of a holder of Registrable Shares must be obtained for
any amendment to this Agreement which materially and adversely affects the rights of such holder
but does not similarly materially and adversely affect the rights of other holders of Registrable
Shares. No waiver of any breach of any provision of this Agreement shall be effective or binding
unless made in writing and signed by the Party purporting to give the same and, unless otherwise
provided in the written waiver, shall be limited to the specific breach waived.
4.6 Assignment. This Agreement and the rights, obligations and duties hereunder shall
inure to the benefit of the Parties hereto and to their respective successors. Notwithstanding
anything contained herein, no Party hereto shall assign this Agreement or any rights and
obligations hereunder to any Person without the prior written consent of the other Parties hereto;
provided, however, that each Shareholder may, at any time assign all of its rights and/or
obligations hereunder to any Person, provided that (a) such Person is not a Competitor at the time
of such assignment, (b) at the time of such assignment, such Person does not hold an equity
interest in a Competitor that represents 10% or more of the paid-up share capital of such
Competitor, and (c) the assigning Shareholder has provided reasonable prior notice of such
assignment to the Company and caused such assignee to agree in writing to be bound by the
provisions of this Agreement as if it were a party hereto.
4.7 Termination.
Subject to Section II, this Agreement shall terminate upon:
(a) the written agreement of the Parties;
(b) the dissolution, liquidation or winding up of the Company;
(c) on the date as of which all the Registrable Shares have been sold pursuant to any
registration hereunder or when all Ordinary Shares cease to be Registrable Shares as defined
herein; and/or
Page 12 of 20
(d) with respect to any Party when such Party ceases to hold any Registrable Shares.
4.8 Severability. If any provision of this Agreement is determined to be invalid or
unenforceable in whole or in part, such invalidity or unenforceability shall attach only to such
provision or part of such provision and the remaining part of such provision and all other
provisions of this Agreement shall continue to be in full force and effect.
4.9 Specific Performance. Each of the Parties acknowledges and agrees that the other
Parties would be damaged irreparably in the event that any of the provisions of this Agreement are
not performed in accordance with their specific terms or otherwise are breached. Accordingly, each
of the Parties agrees that the other Parties shall be entitled to an injunction or injunctions to
prevent breaches of the provisions of this Agreement and to enforce specifically this Agreement and
the terms and provisions hereof, without proving damages, in addition to any other remedy to which
they may be entitled.
4.10 No Partnership; No Third Party Rights.
(a) The Parties hereto agree that nothing in this Agreement shall be deemed to create a
partnership, agency or any other relationship between them, except as otherwise expressly stated
herein.
(b) Nothing herein expressed or implied is intended, nor shall it be construed, to confer upon
or give to any third party any rights or remedies under or by reason of this Agreement.
4.11 Notices. Any notice, claim or demand in connection with this Agreement shall be in
writing in English (a “Notice”) and shall be sufficiently given upon personal delivery, or
upon confirmed receipt if sent by post, upon confirmed transmission by facsimile or electronic
mail, or upon confirmed delivery by overnight commercial courier service, to the addresses below
(or at such other address as a Party may designate by seven (7) days’ advance written notice to the
other Parties):
| (a) | If to SAIF, to: | ||
| SB Asia Infrastructure Fund, Two Palo Alto Square, Suite 5000, 0000 Xx Xxxxxx Xxxx, Xxxx Xxxx, XX 00000, XXX Telephone No.: x000 000 0000 Facsimile No.: x000 000 0000 Attention: Xx. Xxxx Xxxxxxxxxx |
Page 13 of 20
| Copy to: |
| SAIF Advisors Ltd. Suites 2115-2118, Two Xxxxxxx Xxxxx 00 Xxxxxxxxx, Xxxx Xxxx Attention: Xx. Xxxxxxx Xxx Telephone No: x000 0000 0000 Facsimile No: x000 0000 0000 |
||
| Attention: Mr. Xxxxx So Telephone No.: x000 0000 0000 Facsimile No.: x000 0000 0000 |
||
| (b) | If to Travogue, to: |
| C 210, Second Floor, Xxxxxxxxx Xxxxxxx, Xxx Xxxxx, 000 000, Xxxxx Attention: Xxxx Xxxxx Telephone No: x00 000 0000000 |
||
| (c) | If to the Founders, to: | |
| X-0/00X, XXX Xxxxx XX, Xxxxxxx, Xxxxxxx, Xxxxx Attention: Xxxx Xxxxx Telephone No: x00-00-00000000 Facsimile No: x00-00-000000000 |
||
| (d) | If to the Company, to: | |
| Xxxxxx Xxxxx, 0 Xxxxxxxxx Xxxx Xxxxxxx Xxxxxx, Xxxx Xxxxx, Xxxxxxxx of Mauritius Attention: Gyaneshwarnath Gowrea Telephone No: x000-0000000 Facsimile No: x000 000 0000 / x000 000 0000 |
||
| Copy to: | ||
| 103, Xxxxx Xxxxx, Xxxxx 0 Xxxxxxx, Xxxxxxx 000000, Xxxxx Attention: Xxxx Xxxxx & Xxxxxx Xxxxx Telephone No: x00 000 0000000 Facsimile No: x00 000 0000000 |
||
| (e) | If to Helion, to: | |
| Helion Venture Partners LLC |
Page 14 of 20
| c/o International Management (Mauritius) Ltd Les Cascades Building Xxxxx Xxxxxx Street Port Louis, Mauritius Facsimile: x000 000 0000 For attention of: Heerdaye Jugbandhan |
||
| (f) | If to Sierra, to: | |
| Aditya Xxx Xxxxxx 0000, Xxxx Xxxx Xxxx Xxxxx 000 Xxxxx Xxxx Xxxxxxxxxx, XX 00000 XXX |
||
| Telephone No.: x0-000-000-0000 | ||
| (g) | If to Tiger Fund to: | |
| Xxx Xxxxx Xxxxx Xxxxxxxx Xxxxx Xxxxx Tiger Global Management 000 Xxxx Xxxxxx, 00xx Xxxxx Xxx Xxxx, XX 00000 XXX |
||
| Telephone No.: x0-000-000-0000 Fax.: x0-000-000-0000 |
||
| With a copy to: Xxxxxxxxx Xxxxxxx 000 X. 00xx Xxxxxx, Xxxxx 00 Xxx Xxxx, XX 00000 XXX |
||
| Attention: Xxxx Breeze Telephone No.: x0-000-000-0000 Facsimile No.: x0-000-000-0000 |
Any Party hereto may change the foregoing address and telephone and facsimile numbers upon
notice to the other parties in accordance with this Section 4.11.
4.12 Governing Law. This Agreement shall be governed and interpreted by and construed in
accordance with the laws of the State of New York, without giving effect to the principles of
conflict of laws thereunder.
4.13 Counterparts. This Agreement may be executed by the Parties in separate counterparts
each of which when so executed and delivered shall be an original, but all such counterparts shall
together constitute one and the same instrument. A facsimile transmission of the executed
signature page of this Agreement by a Party shall constitute due and proper execution of this
Agreement by such Party.
Page 15 of 20
The parties hereto have caused their duly authorized representatives to execute this agreement on
the day and year first hereinabove written
| SB ASIA INVESTMENT FUND II L.P. |
||||
| By: | /s/ Xxxxxx X. Xxx | |||
| Name : Xxxxxx X. Xxx | ||||
| Title : Authorized Signatory | ||||
| TRAVOGUE ELECTRONIC TRAVEL PRIVATE LIMITED |
||||
| By: | /s/ Xxxx Xxxxx | |||
| Name : Xxxx Xxxxx | ||||
| Title : Director | ||||
| MR. XXXX XXXXX /s/ Xxxx Xxxxx |
||||
| XX. XXXXX XXXXX /s/ Xxxxx Xxxxx |
||||
| MR. XXXXXX XXXXXX /s/ Xxxxxx Xxxxxx |
||||
Page 16 of 20
| HELION VENTURE PARTNERS LLC |
||||
| By: | /s/ Dourvesh Kumar Chumun | |||
| Name : Dourvesh Kumar Chumun | ||||
| Title : Director | ||||
| SIERRA VENTURES VIII-A, L.P. |
||||
| By: | /s/ Aditya Xxx Xxxxxx | |||
| Name : | ||||
| Title : | ||||
| SIERRA VENTURES VIII-B, L.P. |
||||
| By: | /s/ Aditya Xxx Xxxxxx | |||
| Name : | ||||
| Title : | ||||
| SIERRA VENTURES ASSOCIATES VIII, LLC |
||||
| By: | /s/ Aditya Xxx Xxxxxx | |||
| Name : | ||||
| Title : | ||||
Page 17 of 20
| TIGER GLOBAL PRIVATE INVESTMENT PARTNERS IV, L.P. |
|||||
| By: | /s/ Xxxxxxx X. Xxxxxxx | ||||
| Name : | |||||
| Title : | |||||
| TIGER GLOBAL PRIVATE INVESTMENT PARTNERS V, L.P. |
||||
| By: | /s/ Xxxxxxx X. Xxxxxxx | |||
| Name : | ||||
| Title : | ||||
| XX. XXX XXXXX /s/ Xxx Xxxxx |
||||
| XX. XXXXX XXXXX /s/ Xxxxx Xxxxx |
||||
| XX. XXXXX XXXXXXXX /s/ Xxxxx Xxxxxxxx |
||||
Page 18 of 20
| MAKEMYTRIP LIMITED |
||||
| By: | /s/ Xxxx Xxxxx | |||
| Name : Xxxx Xxxxx | ||||
| Title : Director | ||||
Page 19 of 20
SCHEDULE
Xxxxx.xxx
Travel Xxxx.xxx
XxxxxXxxx.Xxx
Xxxxxx.xxx
XxxxxxXxxx.xxx / XxxxxxXxxxx.xxx (or their parent company EOS ltd)
XxxxxxXxxx.xxx/Xxx.xxx
Xxxxx.xxx
XxxxxxxXxxx.xxx
Xxxxxxxx.xxx
Xxxxxxx.xxx
XxxxxxxxxxXxxxx.xxx
Travel Tours / Travel Air
Travelport
Xxxxxx Xxxx
Xxx & Kings / Xxxxxx0.xxx
Sita/Kuoni / SOTC
TCI
ITH
Raj Travels
Kesari Tours
Orbit Travel & Tours
Eeze Tours Online
Any entity organized in India that is a joint venture of Travelocity, Expedia or Zuji
Any travel search company registered in India using the word “travel” in its metatag and deriving a majority of their revenues from within India.
Travel Xxxx.xxx
XxxxxXxxx.Xxx
Xxxxxx.xxx
XxxxxxXxxx.xxx / XxxxxxXxxxx.xxx (or their parent company EOS ltd)
XxxxxxXxxx.xxx/Xxx.xxx
Xxxxx.xxx
XxxxxxxXxxx.xxx
Xxxxxxxx.xxx
Xxxxxxx.xxx
XxxxxxxxxxXxxxx.xxx
Travel Tours / Travel Air
Travelport
Xxxxxx Xxxx
Xxx & Kings / Xxxxxx0.xxx
Sita/Kuoni / SOTC
TCI
ITH
Raj Travels
Kesari Tours
Orbit Travel & Tours
Eeze Tours Online
Any entity organized in India that is a joint venture of Travelocity, Expedia or Zuji
Any travel search company registered in India using the word “travel” in its metatag and deriving a majority of their revenues from within India.
Page 20 of 20
