EX-99.(D)(1) 2 a18-12799_1ex99dd1.htm EX-99.(D)(1) Exhibit (d)(1) EXECUTION VERSION AMENDED AND RESTATED INTERIM INVESTORS AGREEMENT
EXECUTION VERSION
AMENDED AND RESTATED INTERIM INVESTORS AGREEMENT
This Amended and Restated Interim Investors Agreement (this “Agreement”) is made as of February 18, 2019 by and among MBK Partners Fund IV, L.P. (“MBKP”), The Xxxxxxxx Group, Inc. (“Xxxxxxxx Inc.” and, together with MBKP, the “Original Sponsors), Ocean Imagination L.P., a Cayman Islands exempted limited partnership (the “Ocean Sponsor”), and, together with the Original Sponsors and any New Sponsor (as defined below), the “Sponsors”), L & L Horizon, LLC, a Delaware limited liability company (“Horizon”), Ctrip Investment Holding Ltd., a Cayman Islands exempted company (“Ctrip”), CDH Car Rental Service Limited, a British Virgin Islands business company (“CDH Car” and, together with the Ocean Sponsor, “Ocean”, and the Ocean Sponsor, CDH Car and Ctrip, collectively, the “Subsequent Investors”), ICG Holdings 1, LLC, a Delaware limited liability company and a wholly-owned subsidiary of Xxxxxxxx Inc. (“ICG Holdco 1”), ICG Holdings 2, LLC, a Delaware limited liability company and a wholly-owned subsidiary of Xxxxxxxx Inc. (“ICG Holdco 2” and, together with ICG Holdco 1 and Xxxxxxxx Inc., “Xxxxxxxx”), Dongfeng Asset Management Co. Ltd., a limited liability company formed under the laws of the People’s Republic of China (“Dongfeng” and, together with Xxxxxxxx, Horizon, Ctrip, CDH Car and any New Rollover Shareholder (as defined below) the “Rollover Shareholders” and Dongfeng, Horizon and the Original Sponsors, collectively, the “Original Investors”, and the Rollover Shareholders and the Sponsors, each an “Investor” and collectively, the “Investors”), Teamsport Topco Limited, a Cayman Islands exempted company (“Holdco”), Teamsport Midco Limited, a Cayman Islands exempted company and a wholly-owned subsidiary of Holdco (“Midco”), Teamsport Parent Limited, a Cayman Islands exempted company and a wholly-owned subsidiary of Midco (“Parent”), and Teamsport Bidco Limited, a Cayman Islands exempted company and a wholly-owned subsidiary of Parent (“Merger Sub”). The Investors, Holdco, Midco, Parent and Merger Sub are hereinafter collectively referred to as the “Parties”, and individually, a “Party”. Capitalized terms used but not defined herein shall have the meanings given thereto in the Merger Agreement (as defined below) unless otherwise specified herein.
WHEREAS, MBKP, The Baring Asia Private Equity Fund VI, L.P.1, The Baring Asia Private Equity Fund VI, L.P.2, The Baring Asia Private Equity Fund VI Co-investment L.P., BPEA Teamsport Limited, Xxxxxxxx Inc., Horizon, Dongfeng, Holdco, Midco, Parent, Merger Sub and RedStone Capital Management (Cayman) Limited entered into an Interim Investors Agreement dated as of April 6, 2018 (the “Original Agreement”), which currently governs the actions of Holdco, Midco, Parent and Merger Sub and the relationship among certain of the Investors with respect to the transactions contemplated by the Original Merger Agreement (the “Original Transactions”).
1. AGREEMENTS AMONG THE INVESTORS.
1.1 Actions Under the Merger Agreement; Contribution and Support Agreement; Equity Commitment Letters. MBKP and Horizon acting jointly shall have the sole power, authority and discretion to cause (a) Parent and Merger Sub to take any action or refrain from taking any action in order to comply with their obligations, satisfy their closing conditions or exercise their rights under the Merger Agreement, including (i) determining that the conditions set forth in Section 7.01 and Section 7.02 of the Merger Agreement (the “Closing Conditions”) have been satisfied or waiving compliance with any agreement or condition in the Merger Agreement, including any Closing Condition, or (ii) terminating, amending or modifying the Merger Agreement and determining to consummate the Merger, and (b) Holdco, Midco, Parent and Merger Sub, as applicable, to take any action or refrain from taking any action in order to comply with their obligations, satisfy their closing conditions or exercise their rights under the Contribution and Support Agreement and the Equity Commitment Letters, as applicable; provided that MBKP and Horizon may not cause Holdco, Midco, Parent or Merger Sub, as applicable, to amend the Merger Agreement, the Contribution and Support Agreement or any Equity Commitment Letter in a way that has an impact on any Investor that is different from the impact on the other Investors in a manner that is materially adverse to such Investor without such Investor’s written consent. Holdco, Midco, Parent and Merger Sub, as applicable, shall not, and the Investors shall not permit Holdco, Midco, Parent or Merger Sub, as applicable, to, determine that any Closing Condition has been satisfied, waive any Closing Condition, terminate, amend or modify the Merger Agreement, the Contribution and Support Agreement or any Equity Commitment Letter, or determine to close the Merger unless such action has been approved in advance in writing by each of MBKP and Horizon. Holdco, Midco, Parent and Merger Sub, as applicable, shall not take any action with respect to the Merger Agreement, the Contribution and Support Agreement or any Equity Commitment Letter, including granting or withholding of waivers or entering into amendments, unless such actions are in accordance with this Agreement. Parent and Merger Sub shall promptly provide each Investor with any notice they receive from the Company under the Merger Agreement.
(a) For the avoidance of doubt, Exhibit A hereto sets forth the aggregate equity commitment of each Investor (such Investor’s “Investor Equity Commitment”), which with respect to each Investor, equals (x) the number of Rollover Shares of such Investor (if any) multiplied by the Per Share Merger Consideration, plus (y) the amount of such Investor’s Equity Commitment as defined and set forth in such Investor’s Equity Commitment Letter (if any).
(b) If and to the extent Horizon determines after the date hereof, after prior consultation with MBKP, that it would be beneficial for one or more additional sponsors to provide additional equity capital for the consummation of the Transactions, each such additional sponsor (a “New Sponsor”) shall (i) execute an adherence agreement to this Agreement in a form mutually agreed by MBKP and Horizon, (ii) execute an equity commitment letter and limited guarantee in substantially the form as the Equity Commitment Letters and Limited Guarantees in respect of the relevant portion of the equity commitment to be provided by such New Sponsor, and upon its execution of such documents, such New Sponsor shall become a “Sponsor”, an “Investor” and a “Party” for purposes of this Agreement, and Exhibit A shall be updated to reflect the Investor Equity Commitment of each Investor, after giving effect to the equity commitment of such New Sponsor.
(c) If and to the extent Horizon determines after the date hereof, after prior consultation with MBKP, that it would be beneficial for one or more additional shareholders of the Company to contribute its Shares to Holdco in exchange for newly issued shares of Holdco, each such additional shareholder of the Company (a “New Rollover Shareholder”) shall (A) execute an adherence agreement to this Agreement in a form mutually agreed by MBKP and Horizon, (B) execute a contribution and support agreement in substantially the form as the Contribution and Support Agreement in respect of the relevant portion of the equity commitment to be provided by such New Rollover Shareholder, and upon its execution of such documents, such New Rollover Shareholder shall become a “Rollover Shareholder”, an “Investor” and a “Party” for purposes of this Agreement, and Exhibit A shall be updated to reflect the Investor Equity Commitment of each Investor, after giving effect to the equity commitment of such New Rollover Shareholder.
1.4 Consummation of the Transactions.
(a) Subject to the terms and conditions of this Agreement, each of the Parties agrees and undertakes to use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable Law to consummate and make effective as promptly as practicable the transactions contemplated by this Agreement, the Merger Agreement or any other agreement contemplated hereby or thereby.
(b) In the event that the Closing Conditions are satisfied or waived in accordance with the terms of the Merger Agreement and this Agreement, and Parent and Merger Sub are obligated to consummate the Merger in accordance with the terms of the Merger Agreement, all Investors other than any Failing Investor (the “Closing Investors”) acting unanimously shall have the right to (i) direct Holdco, Midco and Parent, as applicable, to enforce the obligations of such Failing Investor under its Equity Commitment Letter or the Contribution and Support Agreement, as applicable, and/or (ii) terminate the participation in the Transactions of such Failing Investor; provided that such termination shall not affect the rights or remedies of the Closing Investors against such Failing Investor with respect to such breach or threatened breach. If the Closing Investors terminate a Failing Investor’s participation in the Transactions pursuant to the immediately preceding sentence, MBKP shall have the right (but not the obligation) to provide equity financing for the Transactions to replace the amount of such Failing Investor’s Investor Equity Commitment (“Replacement Equity”) (provided that MBKP’s Replacement Equity shall not exceed an amount that, together with MBKP’s Investor Equity Commitment, would result in MBKP holding more than 41.0% of the issued and outstanding equity interests or more than 31.5% of the aggregate voting power in Holdco on a fully-diluted basis as of the Closing without the prior written consent of Horizon (which consent shall be provided by Horizon in the event that Replacement Equity in excess of such amount is required to consummate the Merger and no source of alternative capital is readily available)). To the extent MBKP elects not to or cannot provide Replacement Equity in an aggregate amount equal to such Failing Investor’s Investor Equity Commitment, the Closing Investors acting unanimously may offer one or more other Closing Investors or new investors the opportunity to provide Replacement Equity in an amount equal to the shortfall. A “Failing Investor” is any Investor that (A) breaches its obligation under the Equity Commitment Letter of such Investor to fund the Equity Commitment (as defined therein) or asserts in writing such Investor’s unwillingness to fund such Equity Commitment, or (B) breaches its obligation, if any, under the Contribution and Support Agreement to contribute its Shares to Holdco or asserts in writing such Investor’s unwillingness to perform such obligation.
1.5 Termination Fee and Expenses.
(a) If (i) the Merger Agreement is terminated pursuant to Section 8.02(a), Section 8.03(a) or Section 8.03(b) thereof, (ii) Parent is required to pay the Parent Termination Fee pursuant to Section 8.06(b) of the Merger Agreement and/or reimburse any expenses of the Company pursuant to the terms of the Merger Agreement, as applicable, and (iii) one of the Investors is a Defaulting Party, then such Defaulting Party shall pay to Parent an amount equal to the Parent Termination Fee and such expenses to be reimbursed, as applicable, by wire transfer of same day funds within three (3) Business Days following such termination of the Merger Agreement. If there is more than one Defaulting Party, each Defaulting Party’s obligations under the immediately preceding sentence shall be reduced to its Pro Rata Portion of the Parent Termination Fee and/or such expenses, as applicable. A “Defaulting Party” is an Investor whose failure to perform its obligation under its Equity Commitment Letter (if any), the Contribution and Support Agreement (if party thereto) and/or this Agreement results in the termination of the Merger Agreement pursuant to Section 8.02(a), 8.03(a) or Section 8.03(b) thereof. A Defaulting Party’s “Pro Rata Portion” for purposes of this Section 1.5(a) is a fraction, the numerator of which is the Investor Equity Commitment of such Defaulting Party and the denominator of which is the aggregate Investor Equity Commitments of all Defaulting Parties.
(b) If the Transactions are not consummated, and one of the Investors is a Breaching Party, then such Breaching Party shall promptly reimburse each other Investor who is not a Breaching Party (each, a “Non-Breaching Party”) for all of such Non-Breaching Party’s out-of-pocket costs and expenses incurred in connection with the Transactions, including (i) such Non-Breaching Party’s share of the Shared Transaction Expenses and Shared DD Expenses (each as defined below), as applicable, without prejudice to any rights and remedies otherwise available to such Non-Breaching Party. If there is more than one Breaching Party, each Breaching Party’s obligations under the immediately preceding sentence shall be reduced to its Pro Rata Portion of such costs and expenses. A “Breaching Party” is an Investor, the breach by such Investor or by an Affiliate of such Investor, in each case, of the obligations of such Investor or such Affiliate of such Investor under its Equity Commitment Letter (if any), the Contribution and Support Agreement (if party thereto) and/or this Agreement results in the failure of the Transactions to be consummated.
(c) If the Transactions are not consummated (and Section 1.5(b) does not apply), the Investors agree that (i) all Original Shared Transaction Expenses (as defined below) shall be borne by the Applicable Investors based on their respective Applicable TE Pro Rata Portion (as defined below) of such Original Shared Transaction Expenses, (ii) all Shared DD Expenses shall be borne by the Applicable Sponsors based on their respective DD Pro Rata Portion (as defined below) of such Shared DD Expenses, (iii) all Subsequent Shared Transaction Expenses (as defined below) shall be borne by the Applicable Investors based on their respective Applicable TE Pro Rata Portion of such Subsequent Shared Transaction Expenses, (iv) all Subsequent Investor Transaction Expenses (as defined below) shall be borne equally by the Applicable Investors and (v) all other fees and expenses of advisers or consultants retained solely by an Investor or Investors without the mutual agreement of each other Investor in accordance with the terms herein shall be borne solely by such Investor or Investors, as applicable.
(i) “Applicable Investors” means (A) with respect to Original Shared Transaction Expenses, the Original Investors, any New Sponsors and any New Rollover Shareholders, (B) with respect to Subsequent Shared Transaction Expenses and any remaining amounts in respect of the Company Termination Fee contemplated by Section 1.5(e) to be allocated among the Investors, the Investors, and (C) with respect to Subsequent Investor Transaction Expenses and any remaining amounts in respect of the Company Termination Fee contemplated by Section 1.5(e) to be allocated among the Subsequent Investors, the Subsequent Investors.
(ii) “Original Shared Transaction Expenses” means, collectively, all fees and expenses incurred on or prior to the date of this Agreement in connection with the Original Transactions and the Transactions (A) by the Joint Advisers (as defined below), except to the extent incurred solely for the benefit of one Investor, and (B) otherwise for the benefit of the Original Investors as mutually agreed in writing by MBKP and Horizon.
(iii) “Shared Transaction Expenses” means, collectively, Original Shared Transaction Expenses and Subsequent Shared Transaction Expenses.
(iv) “Subsequent Shared Transaction Expenses” means, collectively, all fees and expenses incurred after the date of this Agreement in connection with the Transactions (A) by the Joint Advisers (as defined below), except to the extent incurred solely for the benefit of one Investor, and (B) otherwise for the benefit of the Investors as mutually agreed in writing by MBKP and Horizon.
(v) “Subsequent Investor Transaction Expenses” means, collectively, without duplication, all fees and expenses incurred by advisers (the “Applicable Subsequent Investor Advisors”) retained by the Subsequent Investors prior to the date of this Agreement in connection with (A) the Transactions and (B) the transactions contemplated by the Ocean/Ctrip Competing Transaction (as defined below) as further described on Schedule 1 hereto.
(vi) “TE Pro Rata Portion” means, with respect to an Applicable Investor, a fraction, the numerator of which shall be the Investor Equity Commitment of such Applicable Investor, and the denominator of which shall be the aggregate Investor Equity Commitments of all Applicable Investors, in each case, at the time of the determination thereof.
(vii) “Applicable Sponsors” means the Sponsors, other than the Ocean Sponsor.
(viii) “Shared DD Expenses” means, collectively, all fees and expenses incurred by the Applicable Sponsors in respect of Joint DD Advisers or otherwise for the benefit of the Applicable Sponsors as agreed in writing by the Applicable Sponsors in connection with the conducting of due diligence on the Company for purposes of the Original Transactions and the Transactions (the “Due Diligence”).
(ix) “DD Pro Rata Portion” means, with respect to an Applicable Sponsor, a fraction, the numerator of which shall be such Sponsor’s Investor Equity Commitment, and the denominator of which shall be the aggregate Investor Equity Commitments of all Applicable Sponsors, in each case, at the time of the determination thereof.
(d) Upon consummation of the Transactions, Holdco, Midco and Parent shall, or shall cause the Surviving Company to, reimburse the Investors for, or pay on behalf of the Investors, as the case may be, the Shared Transaction Expenses, the Shared DD Expenses and the Subsequent Investor Transaction Expenses, as applicable, which Shared Transaction Expenses, Shared DD Expenses and Subsequent Investor Transaction Expenses shall be settled in cash at the time of the Closing if reasonably practicable from the aggregate equity financing proceeds in connection with the Transactions.
(e) Any termination, break-up, reimbursement or other fees or amounts (including any Company Termination Fee) payable to Holdco, Midco, Parent or Merger Sub by the Company pursuant to the Merger Agreement shall be used to pay the Shared Transaction Expenses, and any remaining amount shall be allocated among the Investors in proportion to their respective Applicable TE Pro Rata Portions; provided that (i) the Applicable Sponsors’ aggregate share of such remaining amount shall first be used to pay the Shared DD Expenses and any remaining amount thereafter shall then be allocated among the Applicable Sponsors in accordance with their respective DD Pro Rata Portions, and (ii) the Subsequent Investors’ aggregate share of such remaining amount shall first be used to pay the Subsequent Investor Transaction Expenses and any remaining amount thereafter shall then be allocated among the Subsequent Investors’ in accordance with their respective Applicable TE Pro Rata Portions.
(f) Notwithstanding anything to the contrary in this Agreement, to the extent that the Limited Guarantee of an Investor is enforced and neither such Party nor any of its Affiliates (other than Parent, Holdco, Midco or Merger Sub) is a Defaulting Party, the Defaulting Party (or Defaulting Parties, as applicable) shall promptly pay (or reimburse, as applicable) the amount of the Obligations (as defined in such Limited Guarantee) (or its applicable portion of the Obligations in the case of more than one Defaulting Party) that is payable thereunder directly to such Investor (i.e., the non-Defaulting Party), in lieu of payment (or reimbursement, as applicable) to Merger Sub as otherwise required under such Limited Guarantee and by this Agreement.
(g) Each Investor shall be responsible for its own Taxes and related Tax obligations arising from the Original Transactions and the Transactions (including Tax filings, payments and other obligations). The Investors shall cooperate with the Surviving Company in fulfilling the Surviving Company’s Tax withholding, reporting, registration or similar obligations, if any, in connection with the Transactions.
(h) Notwithstanding anything herein to the contrary, each Investor acknowledges, and agrees to, the covenants and agreements set forth on Schedule 2.
(a) The Parties acknowledge and agree that the advisers listed on Schedule 3 hereto (the “Joint Advisers”) have been retained in connection with the Original Transactions and the Transactions and the fees and expenses of the Joint Advisers (other than any fees or expenses related to the Due Diligence) shall be treated as Original Shared Transaction Expenses, Subsequent Shared Transaction Expenses or Shared Transaction Expenses, as applicable, and reimbursable in accordance with Section 1.5. If the Investors wish to jointly retain any additional adviser or consultant (other than the Joint Advisers) in connection with the Transactions the fees and expenses of which are to be treated as Shared Transaction Expenses, such retention shall be subject to each Investor’s prior written consent, and each Investor shall confirm in writing prior to such retention that the fees and expenses incurred by such adviser or consultant (other than any fees or expenses related to the Due Diligence) will be treated as Subsequent Shared Transaction Expenses and reimbursable in accordance with Section 1.5.
(b) The Applicable Sponsors acknowledge and agree that the advisers listed on Schedule 4 hereto (the “Joint DD Advisers”) have been retained in connection with the Due Diligence and the fees and expenses of the Joint DD Advisers as they relate to the Due Diligence shall be treated as Shared DD Expenses and reimbursable pursuant to Section 1.5. If the Applicable Sponsors wish to jointly retain any additional adviser or consultant (other than the Joint DD Advisers) in connection with the Due Diligence, such retention shall be subject to each Applicable Sponsor’s prior written consent, and each Applicable Sponsor shall confirm in writing prior to such retention that the fees and expenses incurred by such adviser or consultant as they relate to the Due Diligence will be treated as Shared DD Expenses and reimbursable pursuant to Section 1.5.
(c) Other than the Joint Advisers, Joint DD Advisers and Applicable Subsequent Investor Advisors, as applicable, if a Party requires separate representation in connection with specific issues arising out of the Transactions, such Party may retain other advisers or consultants to advise it; provided that such Party shall (i) provide prior notice to other Parties of such retention and (ii) subject to Sections 1.5(b), (d) and (e), be solely responsible for the fees and expenses of such separate advisers or consultants, unless each Party or each Applicable Sponsor, as applicable, agrees in writing that the fees and expenses incurred by such separate advisers or consultants will be treated as Subsequent Shared Transaction Expenses or Shared DD Expenses, as applicable, and reimbursable pursuant to Section 1.5.
2. REPRESENTATIONS AND WARRANTIES.
3.1 During the period commencing on the date hereof and ending on the date this Agreement is terminated pursuant to Section 4.1 (the “Exclusivity Period”), each Party agrees that it shall (and shall cause its Affiliates to):
(a) work exclusively with MBKP and Horizon to implement and consummate the Transactions, including the Merger;
(b) not, and shall not permit its Affiliates or any of its or their respective representatives to, directly or indirectly, (i) propose a Competing Transaction, or seek, solicit, initiate, induce, facilitate or encourage (including by way of furnishing any non-public information concerning the Company) inquiries or proposals concerning, or participate in any discussions, negotiations, communications or other activities with any person (other than the other Parties) concerning, or enter into or agree to, a Competing Transaction, (ii) provide any information to any third party with a view to the third party or any other person pursuing or considering to pursue a Competing Transaction, (iii) finance or offer to finance any Competing Transaction, including by offering any equity or debt finance, or contribution of Shares, ADSs or other securities in the Company or provision of a voting agreement, in support of any Competing Transaction, (iv) enter into any written or oral agreement, arrangement or understanding (whether legally binding or not) regarding, or do, anything which is inconsistent with the provisions of this Agreement or the Transactions, including the Merger, (v) Transfer (as defined in the Contribution and Support Agreement) any interest in any Shares or other securities in the Company, in each case, except as expressly contemplated by the Contribution and Support Agreement, (vi) enter into any contract, option or other arrangement or understanding with respect to a Transfer (as defined in the Contribution and Support Agreement) or limitation on voting rights of any Shares (including Shares represented by ADSs) or other securities in the Company, or any right, title or interest thereto or therein, (vii) deposit any Shares, ADSs or other securities in the Company into a voting trust or grant any proxies or enter into a voting agreement, power of attorney or voting trust with respect to any Shares (including Shares represented by ADSs) or other securities in the Company, or (viii) seek, solicit, initiate, encourage, facilitate, induce or enter into any negotiation, discussion, agreement or understanding (whether or not in writing and whether or not legally binding) with any other person regarding the matters described in Section 3.1(b)(i) to Section 3.1(b)(vii);
(c) immediately cease and terminate, and cause to be ceased and terminated, any discussions, negotiations, communications or other activities with any persons that may be ongoing with respect to any Competing Transaction; and
(d) promptly notify MBKP and Horizon if it or, to its knowledge, any of its Affiliates or any of its or their respective representatives receives any approach or communication with respect to any Competing Transaction, including the other persons involved and the nature and content of the approach or communication, and provide MBKP and Horizon with copies of any written communication with respect thereto.
3.2 Without limiting the generality of Section 3.1, each Subsequent Investor shall, and shall cause its Affiliates and its and their respective representatives to, (i) immediately cease and terminate, and cause to be ceased and terminated, all discussions, negotiations, agreements, communications and other activities among the Subsequent Investors, their respective Affiliates and their and their Affiliates’ respective representatives, or otherwise with the Company, the Special Committee or any other person, relating to the proposal regarding a Competing Transaction submitted to the Company Board by Ctrip and an Affiliate of Ocean on or about June 29, 2018 (the “Ocean/Ctrip Competing Proposal”) and (ii) promptly, and in any event no later than two (2) Business Days after the date hereof, take any and all actions as may be necessary to publicly withdraw, and make any and all filings with the SEC as may be required under applicable Law in connection with the withdrawal of, the Ocean/Ctrip Competing Proposal.
4.5 Governing Law. This Agreement shall be governed by, and construed in accordance with, the Laws of Hong Kong, without giving effect to any choice of law or conflict of law rules or provisions that would cause the application of the Laws of any jurisdiction other than Hong Kong.
(a) Any disputes, actions and proceedings against any Party or arising out of or in any way relating to this Agreement shall be submitted to the Hong Kong International Arbitration Centre (the “HKIAC”) and resolved in accordance with the Arbitration Rules of the HKIAC in force at the relevant time (the “Rules”) and as may be amended by this Section 4.6(a). The place of arbitration shall be Hong Kong. The official language of the arbitration shall be English and the arbitration tribunal shall consist of three arbitrators (each, an “Arbitrator”). The claimant(s), irrespective of number, shall nominate jointly one Arbitrator; the respondent(s), irrespective of number, shall nominate jointly one Arbitrator; and a third Arbitrator will be nominated jointly by the first two Arbitrators and shall serve as chairman of the arbitration tribunal. In the event the claimant(s) or respondent(s) or the first two Arbitrators shall fail to nominate or agree on the joint nomination of an Arbitrator or the third Arbitrator within the time limits specified by the Rules, such Arbitrator shall be appointed promptly by the HKIAC. The arbitration tribunal shall have no authority to award punitive or other punitive-type damages. The award of the arbitration tribunal shall be final and binding upon the disputing parties. Any party to an award may apply to any court of competent jurisdiction for enforcement of such award and, for purposes of the enforcement of such award, the Parties irrevocably and unconditionally submit to the jurisdiction of any court of competent jurisdiction and waive any defenses to such enforcement based on lack of personal jurisdiction or inconvenient forum.
(b) Notwithstanding the foregoing, the Parties hereby consent to and agree that in addition to any recourse to arbitration as set out in this Section 4.6, any Party may, to the extent permitted under the Laws of the jurisdiction where application is made, seek an interim injunction from a court or other authority with competent jurisdiction and, notwithstanding that this Agreement is governed by the Laws of Hong Kong, a court or authority hearing an application for injunctive relief may apply the procedural Law of the jurisdiction where the court or other authority is located in determining whether to grant the interim injunction. For the avoidance of doubt, this Section 4.6(b) is only applicable to the seeking of interim injunctions and does not restrict the application of Section 4.6(a) in any way.
(a) If to MBKP:
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MBK Partners IV, L.P. | |
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c/o MBK Partners Management Consulting (Shanghai) Co., Ltd. | |
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Unit 3904, K.Wah Center | |
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1010 Huai Hai M. Road | |
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Shanghai, China | |
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Attention: |
Xxxxxxx Xx |
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Xxx Xxx |
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Facsimile: |
x00 00 0000 0000 |
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E-mail: |
xxxxxxx.xx@xxxxxxxxxxxxx.xxx |
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xxx.xxx@xxxxxxxxxxxxx.xxx |
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With a copy (which shall not constitute notice) to: | |
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Weil, Gotshal & Xxxxxx LLP | |
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00/X Xxxxxxxxx Xxxxx | |
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00 Xxxxxx Xxxx | |
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Xxxxxxx, Xxxx Xxxx | |
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Attention: |
Xxx Xxxxxxx |
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Xxxxxxx Xxxxx |
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Facsimile: |
x000-0000-0000 |
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E-mail: |
xxx.xxxxxxx@xxxx.xxx |
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xxxxxxx.xxxxx@xxxx.xxx |
(b) If to Horizon:
L & L Horizon, LLC
Xxxx 00/X, Xxxxxxxx Xx.0, Xxxxxxxx Xxxxxx
000 Xxxxxx Xxxx
Xxxxxxxx, 000000, Xxxxx
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Attention: |
Xx. Xxx XxxXxxx Xxxxx |
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Facsimile: |
x00 00 0000 0000 |
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E-mail: |
xxxxx000@xx.xxx |
With a copy (which shall not constitute notice) to:
Pillar Legal, P.C.
Xxxxx 0000-0000, Xxx Xxxx Xxxxxxxx
1101 Pudong South Road, Xxxxxx Xxxxxxxx
Xxxxxxxx 000000, Xxxxx
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Attention: |
Xxxx Xxxxxxxxxx |
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E-mail: |
xxxx@xxxxxxxxxxxxx.xxx |
(c) If to Xxxxxxxx:
The Xxxxxxxx Group, Inc.
000 Xxxxxxxxx Xxxx Xxxxx
Xx. Xxxxx, XX 00000
U.S.A.
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Attention: |
Xxxxxx X. Xxxxxxxxx, Chief Executive Officer |
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Facsimile: |
x0 000 000 0000 |
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E-mail: |
Xxxxxx.X.Xxxxxxxxx@xxx.xxx |
With a copy (which shall not constitute notice) to:
The Xxxxxxxx Group, Inc.
c/o Enterprise Holdings, Inc.
000 Xxxxxxxxx Xxxx Xxxxx
Xx. Xxxxx, XX 00000
U.S.A.
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Attention: |
Xxxxxxx X. Xxxxxx, Senior Vice President and General Counsel |
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Facsimile: |
x0 000 000 0000 |
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E-mail: |
Xxxx.Xxxxxx@xxx.xxx |
(d) If to Dongfeng:
Dongfeng Asset Management Co. Ltd.
Special No.1 DongFeng Road
WuHan Economic&Technical Development Zone
WuHan, HuBei Province, PRC, 430056
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Attention: |
Xxxxx Xxxx |
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Wang You |
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E-mail: |
xxxxxx@xxxx.xxx.xx |
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xxxxx@xxxx.xxx.xx |
(e) If to Ocean:
Ocean Imagination L.P.
Xxxx 000, 0xx Xxxxx, Xx. Xxxxxx’s Xxxxxxxx
0 Xxx Xxxxx Xxxxxx
Xxxxxxx, Xxxx Xxxx
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Attention: |
Xxxxxx Xxxxx |
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E-mail: |
xxxx.xxxxx@xxxxxxx.xxx |
With a copy (which shall not constitute notice) to:
Skadden, Arps, Xxxxx, Xxxxxxx & Xxxx
00/X, Xxxxxxxxx Tower, The Landmark
00 Xxxxx’x Xxxx Xxxxxxx, Xxxx Xxxx
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Attention: |
Z. Xxxxx Xxx |
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Xxxxxxx Xx |
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E-mail: |
Xxxxx.Xxx@xxxxxxx.xxx |
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Xxxxxxx.Xx@xxxxxxx.xxx |
(f) If to Ctrip:
Xxxxx.xxx International, Ltd.
Xxxxxxxx 00, 000 Xxxxxxxx Xxxx
Xxxxxxxx, People’s Republic of China
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Attention: |
Xxx Xxxx |
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E-mail: |
xxx_xxxx@Xxxxx.xxx |
With a copy (which shall not constitute notice) to:
Skadden, Arps, Xxxxx, Xxxxxxx & Xxxx
00/X, Xxxxxxxxx Tower, The Landmark
00 Xxxxx’x Xxxx Xxxxxxx, Xxxx Xxxx
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Attention: |
Z. Xxxxx Xxx |
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Xxxxxxx Xx |
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E-mail: |
Xxxxx.Xxx@xxxxxxx.xxx |
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Xxxxxxx.Xx@xxxxxxx.xxx |
(g) If to Holdco, Midco, Parent or Merger Sub:
c/o MBK Partners Management Consulting (Shanghai) Co., Ltd.
Unit 3904, K.Wah Center
1010 Huai Hai M. Road
Shanghai, China
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Attention: |
Xxxxxxx Xx |
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Xxx Xxx |
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Facsimile: |
x00 00 0000 0000 |
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E-mail: |
xxxxxxx.xx@xxxxxxxxxxxxx.xxx |
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xxx.xxx@xxxxxxxxxxxxx.xxx |
With a copy (which shall not constitute notice) to:
Weil, Gotshal & Xxxxxx LLP
00/X Xxxxxxxxx Xxxxx
00 Xxxxxx Xxxx
Xxxxxxx, Xxxx Xxxx
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Attention: |
Xxx Xxxxxxx |
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Xxxxxxx Xxxxx |
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Facsimile: |
x000 0000 0000 |
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E-mail: |
xxx.xxxxxxx@xxxx.xxx |
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xxxxxxx.xxxxx@xxxx.xxx |
(a) Except as permitted under Section 4.13, no Party shall, and each Party shall direct its Affiliates and officers, directors, employees, accountants, consultants, financial and legal advisors, agents and other authorized representatives (such Party’s “Representatives”) not to, disclose any Confidential Information (as defined below) received by it (the “Recipient”) from any other Party (the “Discloser”) to any Third Party, other than to (i) such Party’s Affiliates and Representatives and (ii) subject to Section 1.3, potential New Sponsors and potential New Rollover Shareholders. No Party shall, and each Party shall direct its Affiliates and Representatives not to, use any Confidential Information for any purpose other than for the purposes of giving effect to and performing its obligations under this Agreement or evaluating, negotiating and implementing the Transactions.
(b) Subject to Section 4.12(c), the Recipient shall, and shall direct its Affiliates and Representatives that receive Confidential Information to, return or destroy (in the Recipient’s sole discretion), upon written request of the Discloser, any Confidential Information which falls within clause (i) of the definition of Confidential Information; provided that with respect to any electronic data that constitutes Confidential Information, the foregoing obligation shall not apply to any electronic data stored on the back-up tapes of the Recipient’s hardware. Notwithstanding the foregoing, the Investors shall be permitted to retain copies of the Confidential Information in order to comply with legal, regulatory or internal policy requirements.
(c) Each Party acknowledges that, in relation to Confidential Information received from the other Parties, the obligations contained in this Section 4.12 shall continue to apply for a period of 12 months following termination of this Agreement pursuant to Section 4.1, unless otherwise agreed in writing.
(d) “Confidential Information” includes (i) all written, oral or other information obtained in confidence by one Party from any other Party in connection with this Agreement or the Transactions, unless such information (A) is already known to such Party or to others not known by such Party to be bound by a duty of confidentiality, (B) is or becomes publicly available other than through a breach of this Agreement by such Party or its Representatives or (C) is independently developed by such Party or its Representatives without the use of Confidential Information and (ii) the existence or terms of, and any negotiations or discussions relating to, this Agreement and any definitive documentation, including the Merger Agreement.
[Signature pages follow]
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MBKP PARTNERS FUND IV, L.P. | |
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By: |
MBK Partners XX XX, L.P., its general partner |
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By: |
MBK XX XX, Inc., its general partner |
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By: |
/s/ Xxxxxxx XxxxxXx Xxx |
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Name: Xxxxxxx XxxxxXx Xxx | |
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Title: Director |
[Signature Page to A&R Interim Investors Agreement]
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L & L HORIZON, LLC | |
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By: |
/s/ Xxx XxxXxxx Xxxxx |
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Name: Xxx XxxXxxx Xxxxx | |
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Title: Member Manager |
[Signature Page to A&R Interim Investors Agreement]
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THE XXXXXXXX GROUP, INC. | |
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By: |
/s/ Xxxx X. Short |
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Name: Xxxx X. Short | |
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Title: Vice President |
[Signature Page to Interim Investors Agreement]
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ICG HOLDINGS 1, LLC | |
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By: |
/s/ Xxxx X. Short |
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Name: Xxxx X. Short | |
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Title: Vice President |
[Signature Page to Interim Investors Agreement]
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ICG HOLDINGS 2, LLC | |
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By: |
/s/ Xxxx X. Short |
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Name: Xxxx X. Short | |
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Title: Vice President |
[Signature Page to Interim Investors Agreement]
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DONGFENG ASSET MANAGEMENT CO. LTD. | |
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By: |
/s/ Xx Xxxx |
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Name: Xx Xxxx | |
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Title: General Manager |
[Signature Page to Interim Investors Agreement]
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OCEAN IMAGINATION L.P. | |
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By: |
Ocean Voyage L.P., its general partner |
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By: |
Ocean General Partners Limited, its general partner |
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By: |
/s/ Xxxxxx Xxxxx |
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Name: Xxxxxx Xxxxx | |
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Title: Director |
[Signature Page to Interim Investors Agreement]
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CTRIP INVESTMENT HOLDING LTD. | |
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By: |
/s/ Xxxxx Xxxxxxx Xxxx |
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Name: Xxxxx Xxxxxxx Xxxx | |
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Title: Director |
[Signature Page to Interim Investors Agreement]
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CDH CAR RENTAL SERVICE LIMITED | |
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By: |
/s/ Xx Xx |
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Name: Xx Xx | |
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Title: Director |
[Signature Page to Interim Investors Agreement]
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TEAMSPORT TOPCO LIMITED | |
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By: |
/s/ Kenichiro Kagasa |
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Name: Kenichiro Kagasa | |
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Title: Director | |
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TEAMSPORT MIDCO LIMITED | |
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By: |
/s/ Kenichiro Kagasa |
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Name: Kenichiro Kagasa | |
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Title: Director | |
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TEAMSPORT PARENT LIMITED | |
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By: |
/s/ Kenichiro Kagasa |
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Name: Kenichiro Kagasa | |
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Title: Director | |
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TEAMSPORT BIDCO LIMITED | |
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By: |
/s/ Kenichiro Kagasa |
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Name: Kenichiro Kagasa | |
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Title: Director |
[Signature Page to Interim Investors Agreement]
SCHEDULE 1 SUBSEQUENT INVESTOR TRANSACTION EXPENSES
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Advisors |
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Fees (USD) |
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Skadden |
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906,824.27 |
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Ropes and Xxxx |
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400,766 |
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Forbes Hare |
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103,976 |
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Xxxxx Xxxxx JSM |
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9,301 |
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Xxxxxx Xxxxxxxx Xxxxx & Xxxxxxxx |
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74,830 |
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Michael Tod QC |
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33,455 |
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Miscellaneous |
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57,872 |
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SCHEDULE 2 ADDITIONAL COVENANTS
Reference is made to that certain Amended and Restated Interim Investors Agreement, dated as of February 18, 2019 (as it may be further amended, restated, supplemented or otherwise modified from time to time, the “IIA”). Capitalized terms used but not defined herein shall have the meanings given thereto in the IIA, the Merger Agreement, or the August 8 Cost-Sharing Email (as defined below), as applicable.
1. Notwithstanding anything in the IIA or in the August 8 Cost-Sharing Email to the contrary, the Original Investors agree that the following fees and expenses shall be deemed to (i) have been incurred for the benefit of all Original Investors and (ii) be Original Shared Transaction Expenses that shall be borne by the Original Investors, or Holdco, Midco, Parent or the Surviving Company, as applicable, in accordance with Section 1.5 of the IIA:
· US$7,651,391, which represents the aggregate consideration in excess of US$6.125 per Class A Share, ADS and Class B Share paid by Xxxxxxxx Inc. to Ignition Growth Managing Directors Fund I, LLC and Ignition Growth Capital I, L.P. (collectively, the “Ignition Sellers”) for the direct purchase of 37,501 Class A Shares and 533,885 ADSs at a price of US$6.75 per Class A Share and ADS, as applicable, and the indirect purchase of 6,187,197 Class B Shares at a price of US$7.25 per Class B Share, held by ICG Holdco 1 and ICG Holdco 2 pursuant to the terms of that certain Secondary Stock Purchase Agreement, dated as of August 9, 2018 (the “Ignition Purchase Agreement”), by and among the Ignition Sellers, XXX Xxxxxx 0, XXX Holdco 2 and Xxxxxxxx Inc.
· US$103,000, representing the aggregate fees and expenses of Xxxxxxxx Xxxxxx LLP and Freshfields Bruckhaus Xxxxxxxx LLP, counsel to Xxxxxxxx Inc., incurred by Xxxxxxxx Inc. and its Affiliates after August 8, 2019 in connection with the exercise of Xxxxxxxx Inc.’s right of first offer under Section 3.7 of that certain Third Amended and Restated Investors’ Rights Agreement, dated as of December 11, 2013, by and among the Company, Xx. Xxxxxxx Xxxxx, Xxxxxxxx Inc., Ctrip and the other parties thereto.
· Without duplication and subject to the terms and conditions of that certain email agreement acknowledged and confirmed by Xxxxxxxx Inc., MBKP and Horizon on August 8, 2018 (the “August 8 Cost-Sharing Email”), any Losses incurred by Xxxxxxxx, Inc. or any of its Affiliates in connection with the exercise of the Xxxxxxxx ROFO Rights, including: (i) fees and expenses of counsel to Xxxxxxxx Inc. incurred after August 8, 2019 in connection with the exercise of the Xxxxxxxx ROFO Rights; and (ii) the amount of any additional consideration payable by Xxxxxxxx Inc. as a price adjustment for (x) the Purchased Shares (as defined in the Ignition Purchase Agreement) pursuant to Section 1.2 of the Ignition Purchase Agreement and/or (y) the GS Offered Shares pursuant to the provisions of a GS Purchase Agreement, if any, that corresponds to Section 1.2 of the Ignition Purchase Agreement.
2. This Schedule 2 amends and restates in its entirety the August 8 Cost-Sharing Email, except for the portions of the August 8 Cost-Sharing Email relating to the Xxxxxxxx ROFO Rights, the Ignition Offered Securities and the GS Offered Shares to the extent not amended by this Schedule 2 (including, for avoidance of doubt, paragraphs 3(a) through (k) of the August 8 Cost-Sharing Email) which shall be deemed incorporated by reference into this Schedule 2 and continue in full force and effect in accordance with their terms, provided, however, that references to the Baring Funds (as defined in the Original Agreement referred to in the IIA) and their Affiliates in such portions of the August 8 Cost-Sharing Email relating to the Xxxxxxxx ROFO Rights, the Ignition Offered Securities and the GS Offered Shares shall be disregarded.
SCHEDULE 3 JOINT ADVISERS
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McKinsey & Company |
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PricewaterhouseCoopers |
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Weil, Gotshal & Xxxxxx |
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Fangda Partners |
SCHEDULE 4 JOINT DD ADVISERS
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McKinsey & Company |
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PricewaterhouseCoopers |
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Weil, Gotshal & Xxxxxx |
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Fangda Partners |
EXHIBIT A INVESTOR EQUITY COMMITMENT
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Investor |
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Rollover Shares |
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Equity Commitment |
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Percentage of Aggregate Investor Equity Commitments |
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MBK Partners Fund IV, L.P. |
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Class A common shares: Class B common shares: |
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0 0 |
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ADSs (each representing two Class A common shares): |
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0 |
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US$ |
380,484,849.50 |
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40.62 |
% |
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L & L Horizon, LLC |
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Class A common shares: Class B common shares: |
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0 7,142,432 |
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ADSs (each representing two Class A common shares): |
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0 |
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N/A |
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4.67 |
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The Xxxxxxxx Group, Inc. |
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Class A common shares: Class B common shares: |
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37,501 18,694,003 |
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ADSs (each representing two Class A common shares): |
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533,885 |
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US$ |
135,593,633.50 |
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27.42 |
% |
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ICG Holdings 1, LLC |
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Class A common shares: Class B common shares: |
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0 3,030,839 |
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ADSs (each representing two Class A common shares): |
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0 |
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N/A |
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1.98 |
% |
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XXX Xxxxxxxx 0, LLC |
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Class A common shares: Class B common shares: |
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0 3,156,358 |
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ADSs (each representing two Class A common shares): |
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0 |
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N/A |
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2.07 |
% |
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Dongfeng Asset Management Co. Ltd. |
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Class A common shares: Class B common shares: |
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5,000,000 0 |
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ADSs (each representing two Class A common shares): |
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0 |
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N/A |
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3.27 |
% |
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Ocean Imagination L.P. |
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Class A common shares: Class B common shares: |
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0 0 |
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ADSs (each representing two Class A common shares): |
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0 |
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US$ |
11,842,221.88 |
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1.53 |
% |
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Ctrip Investment Holding Ltd. |
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Class A common shares: Class B common shares: |
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4,300,000 15,168,193 |
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ADSs (each representing two Class A common shares): |
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0 |
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N/A |
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12.73 |
% | |
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CDH Car Rental Service Limited |
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Class A common shares: Class B common shares: |
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100,000 8,599,211 |
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ADSs (each representing two Class A common shares): |
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219,382 |
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N/A |
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5.71 |
% | |
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TOTAL |
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100 |
% |