UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. 3)*
Bitauto Holdings Limited
(Name of Issuer)
Ordinary Shares, par value $0.00004 per share
(Title of Class of Securities)
091727107
(CUSIP Number)
Tencent Holdings Limited
29/F., Three Pacific Place,
No. 1 Queen’s Road East, Wanchai, Hong Kong
Telephone: +852 3148 5100
(Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications)
June 12, 2020
(Date of Event Which Requires Filing of This Statement)
If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of Rule 13d-1(e), Rule 13d-1(f) or Rule 13d-1(g), check the following box. ☐
Note: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See Rule 13d-7(b) for other parties to whom copies are to be sent.
| * | The remainder of this cover page shall be filled out for a reporting person’s initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page. |
The information required on the remainder of this cover page shall not be deemed to be “filed” for the purpose of Section 18 of the Securities Exchange Act of 1934 (“Act”) or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes).
Explanatory Note
This Amendment No. 3 to Schedule 13D (“Amendment No. 3”) amends and supplements the Schedule 13D filed with the United States Securities and Exchange Commission on June 27, 2016 (as amended to date, the “Schedule 13D”), relating to the ordinary shares, par value $0.00004 per share (“Ordinary Shares”) and American depositary shares, each representing one Ordinary Share (“ADSs”), of Bitauto Holdings Limited, a company organized under the laws of the Cayman Islands (the “Issuer”). Capitalized terms used herein without definition shall have the meaning set forth in the Schedule 13D.
| Item 4. | Purpose of Transaction. |
Item 4 of the Schedule 13D is amended and supplemented by adding the following:
Merger Agreement
On June 12, 2020, the Issuer entered into an Agreement and Plan of Merger (the “Merger Agreement”) with Yiche Holding Limited (“Parent”) and Yiche Mergersub Limited (“Merger Sub”), a wholly owned Subsidiary of Parent, pursuant to which the Issuer will be acquired by an investor consortium led by Morespark, an affiliate of Tencent, and Hammer Capital Opportunities Fund L.P. (acting through its general partner Hammer Capital) in an all-cash transaction (the “Merger”).
Pursuant to the Merger Agreement, at the effective time of the Merger (the “Effective Time”), each ordinary share of the Issuer (each, a “Share”) issued and outstanding immediately prior to the Effective Time will be cancelled and cease to exist in exchange for the right to receive $16.00 in cash without interest, and each outstanding American depositary share of the Issuer (each, an “ADS,” representing one Share) will be cancelled in exchange for the right to receive $16.00 in cash without interest, except for (a) certain Shares (including Shares represented by ADSs) owned by affiliates of Tencent, an affiliate of JD.com, Inc., and affiliates of Mr. Bin Li, chairman of the board of directors of the Issuer, which will be rolled over in the transaction, (b) Shares (including ADSs represented by Shares) owned by Parent, Merger Sub, the Issuer or any of their respective subsidiaries, (c) Shares (including ADSs represented by Shares) held by the ADS depositary and reserved for issuance, settlement and allocation upon exercise or vesting of Issuer’s options and/or restricted share unit awards and (d) Shares held by shareholders who have validly exercised and not effectively withdrawn or lost their rights to dissent from the Merger pursuant to the laws of the Cayman Islands, which will be cancelled and cease to exist in exchange for the right to receive the payment of fair value of those dissenting shares in accordance with the laws of the Cayman Islands.
The Merger is currently expected to close in the second half of 2020 and is subject to customary closing conditions including the approval of the Merger Agreement by an affirmative vote of holders of Shares representing at least two-thirds of the voting power of the Shares present and voting in person or by proxy at a meeting of the Issuer’s shareholders. If completed, the Merger will result in the Issuer becoming a privately held company, and its ADSs will no longer be listed on the New York Stock Exchange.
Limited Guarantee and Equity Commitment Letter
Concurrently with the execution of the Merger Agreement, Morespark entered a limited guarantee agreement (the “Limited Guarantee”) in favor of the Issuer whereby Morespark agreed to irrevocably and unconditionally guarantee 80% of Parent’s obligation to pay the Issuer the Parent Termination Fee (as defined in the Merger Agreement) if and as required pursuant to the terms of the Merger Agreement, up to $24,000,000, as well as an equity commitment letter (the “Equity Commitment Letter”) with Parent confirming its commitment to contribute to Parent or any other person as directed by Parent cash in the amount of $698,955,034 (subject to certain adjustments as set forth in the Equity Commitment Letter) in exchange for equity securities of Parent for the purpose of funding the Merger consideration and fees and expenses incurred by Parent in connection with the transactions contemplated by the Merger Agreement.
Support Agreement
Parent, Morespark, Dongting and THL entered into a support agreement dated June 12, 2020 (the “Support Agreement”) whereby Morespark, Dongting and THL agreed (a) to vote in favor of the approval, adoption and authorization of the Merger Agreement and the approval of the Merger and any other transactions contemplated by the Merger Agreement and (b) the Rollover Shares (as defined in the Support Agreement) will be cancelled at the closing of the Merger in consideration for the newly issued shares of Parent to be subscribed for by Morespark.
Interim Investors Agreement
In connection with the Merger Agreement entered on June 12, 2020, Morespark, Dongting, THL and additional Investors (as defined in the Interim Investors Agreement) entered into an interim investors agreement (the “Interim Investors Agreement”) in order to establish certain terms and conditions that will govern the actions of Parent and Merger Sub and the relationship among the Investors with respect to, among other things, the Merger Agreement, Limited Guarantee Agreement, Equity Commitment Letter and Support Agreement, and the transactions contemplated thereby.
The foregoing descriptions of the Merger Agreement, Limited Guarantee, Equity Commitment Letter, Support Agreement and Interim Investors Agreement (each a “Merger Document”, and collectively, the “Merger Documents”) do not purport to be complete and are qualified in their entirety by reference to the full text of each such Merger Document, each of which is filed as an exhibit to this Schedule 13D and is incorporated herein by reference.
General
Subject to the terms of the Merger Documents, the Reporting Persons may acquire additional securities of the Issuer, or retain or sell all or a portion of the securities then held, in the open market or in privately negotiated transactions. In connection with the Merger, the Reporting Persons may engage in discussions with management, the Board of Directors, and securityholders of the Issuer and other relevant parties or encourage, cause or seek to cause the Issuer or such persons to consider or explore extraordinary corporate transactions, including the Merger. There can be no assurance, however, that any proposed transaction, including the Merger, will receive the requisite approvals from the respective governing bodies and shareholders, as applicable, or that any such transaction would be successfully implemented.
Other than as described above, the Reporting Persons do not currently have any plans or proposals that relate to, or would result in, any of the matters listed in Items 4(a)—(j) of Schedule 13D, although, depending on the factors discussed herein, the Reporting Persons may change their purpose or formulate different plans or proposals with respect thereto at any time.
| Item 6. | Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer. |
Item 6 of the Schedule 13D is amended and supplemented by adding the following:
Item 4 above summarizes certain provisions of the Merger Documents and is incorporated herein by reference. A copy of each of the Merger Documents is attached as an exhibit to this Schedule 13D, and each is incorporated by reference herein.
Except as set forth herein, none of the Reporting Persons or Related Persons has any contracts, arrangements, understandings or relationships (legal or otherwise) with any person with respect to any securities of the Issuer, including but not limited to any contracts, arrangements, understandings or relationships concerning the transfer or voting of such securities, finder’s fees, joint ventures, loan or option arrangements, puts or calls, guarantees of profits, division of profits or losses, or the giving or withholding of proxies.
| Item 7. | Materials to be Filed as Exhibits |
| Exhibit |
Description | |
| 9 | Agreement and Plan of Merger, dated June 12, 2020, by and among Yiche Holding Limited, Yiche Mergersub Limited and Bitauto Holdings Limited (incorporated by reference to Exhibit 99.2 to Bitauto Holdings Limited’s Report of Foreign Private Issuer filed on Form 6-K on June 15, 2020). | |
| 10 | Limited Guarantee, dated June 12, 2020, by Morespark Limited in favor of Bitauto Holdings Limited. | |
| 11 | Equity Commitment Letter, dated June 12, 2020, by Morespark Limited in favor of Yiche Holding Limited. | |
| 12 | Support Agreement, dated June 12, 2020, by and among Yiche Holding Limited, Morespark Limited, Dongting Lake Investment Limited and THL E Limited. | |
| 13 | Interim Investors Agreement, dated June 12, 2020, by and among Morespark Limited, Dongting Lake Investment Limited, THL E Limited and certain additional investors. | |
SIGNATURES
After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.
Date: June 17, 2020
| DONGTING LAKE INVESTMENT LIMITED | ||
| By: | /s/ Ma Huateng | |
| Name: | Ma Huateng | |
| Title: | Authorized Signatory | |
| MORESPARK LIMITED | ||
| By: | /s/ Ma Huateng | |
| Name: | Ma Huateng | |
| Title: | Authorized Signatory | |
| THL E LIMITED | ||
| By: | /s/ Ma Huateng | |
| Name: | Ma Huateng | |
| Title: | Authorized Signatory | |
| TENCENT HOLDINGS LIMITED | ||
| By: | /s/ Ma Huateng | |
| Name: | Ma Huateng | |
| Title: | Authorized Signatory | |
Exhibit 10
Execution Version
LIMITED GUARANTEE
This Limited Guarantee (this “Limited Guarantee”), dated as of June 12, 2020, is made by Morespark Limited (the “Guarantor”), a private company limited by shares incorporated under the Laws of Hong Kong, in favor of Bitauto Holdings Limited, an exempted company incorporated with limited liability under the Laws of the Cayman Islands (the “Guaranteed Party”). Each capitalized term used and not defined herein shall have the meaning ascribed to it in the Merger Agreement (as defined below), except as otherwise provided herein.
1. Limited Guarantee. To induce the Guaranteed Party to enter into that certain Agreement and Plan of Merger, dated as of the date hereof (as amended, amended and restated, supplemented or otherwise modified from time to time in accordance with its terms, the “Merger Agreement”) among Yiche Holding Limited, an exempted company incorporated with limited liability under the Laws of the Cayman Islands (“Parent”), Yiche Mergersub Limited, an exempted company incorporated with limited liability under the Laws of the Cayman Islands and a wholly-owned subsidiary of Parent (“Merger Sub”), and the Guaranteed Party, pursuant to which Merger Sub will merge with and into the Guaranteed Party (the “Merger”), the Guarantor, intending to be legally bound, hereby absolutely, irrevocably and unconditionally guarantees to the Guaranteed Party, subject to the terms and conditions hereof, but only up to the Maximum Amount (as defined below), 80% of Parent’s obligation (a) to pay the Guaranteed Party the Parent Termination Fee if and as required pursuant to Section 9.2(b)(iv) or Section 9.2(b)(v) of the Merger Agreement and (b) to pay any amounts pursuant to Section 9.2(d) of the Merger Agreement (collectively, the “Guaranteed Obligations”); provided that the maximum aggregate liability of the Guarantor hereunder shall not exceed US$24,000,000 (the “Maximum Amount”), and the Guaranteed Party hereby agrees that (A) the Guarantor shall in no event be required to pay more than the Maximum Amount under or in respect of this Limited Guarantee and (B) the Guarantor shall not have any obligation or liability to any Person (including, without limitation, to the Guaranteed Party’s equityholders, Affiliates and Subsidiaries) relating to, arising out of or in connection with this Limited Guarantee, the Merger Agreement or the letter agreement dated as of the date hereof between the Guarantor and Parent, pursuant to which the Guarantor has agreed to make a certain equity contribution to Parent (the “Equity Commitment Letter”) other than as expressly set forth herein or in the Equity Commitment Letter. This Limited Guarantee may be enforced for the payment of money only. All payments hereunder shall be made in United States dollars in immediately available funds. Concurrently with the delivery of this Limited Guarantee, Hammer Capital Opportunities Fund L.P., acting through its general partner Hammer Capital Opportunities General Partner (the “Other Guarantor”) is also entering into a limited guarantee substantially identical to this Limited Guarantee (the “Other Guarantee”) with the Guaranteed Party.
2. Nature of Guarantee.
(a) This Limited Guarantee is an unconditional and continuing guarantee of payment, not of collection, and a separate action or actions may be brought and prosecuted against the Guarantor to enforce this Limited Guarantee, irrespective of whether any action is brought against Parent, Merger Sub or any other Person or whether Parent, Merger Sub or any other Person is joined in any such action or actions; provided that no action or actions may be brought against the Guarantor under this Limited Guarantee unless the Other Guarantor has fulfilled the Guaranteed Obligations (as defined in the Other Guarantee) or such action or actions have also been brought simultaneously against the Other Guarantor under the Other Guarantee (except to the extent that the bringing of such action or actions against the Other Guarantor is prohibited or stayed by any applicable Law or Order). The Guaranteed Party shall not release the Other Guarantor from any obligations under the Other Guarantee or amend or waive any provision of the Other Guarantee unless the Guaranteed Party offers to release the Guarantor under this Limited Guarantee in the same proportion or to amend or waive the provisions of this Limited Guarantee in the same manner. Notwithstanding anything to the contrary contained in this Limited Guarantee or any other document, the obligations of the Guarantor under this Limited Guarantee and of the Other Guarantor under the Other Guarantee shall be several and not joint.
(b) The liability of the Guarantor under this Limited Guarantee shall, to the fullest extent permitted under applicable Law, be absolute, irrevocable and unconditional, irrespective of:
(i) any release or discharge of any obligation of Parent or Merger Sub in connection with the Merger Agreement resulting from any change in the corporate existence, structure or ownership of Parent or Merger Sub, or any insolvency, bankruptcy, reorganization, liquidation or other similar proceeding affecting Parent, Merger Sub or any of their respective assets, other than as and if required by Section 2(a);
(ii) any amendment or modification of the Merger Agreement, or any change in the manner, place or terms of payment or performance of, any change or extension of the time of payment or performance of, or any renewal or alteration of, any Guaranteed Obligation, any escrow arrangement or other security therefor, or any liability incurred directly or indirectly in respect thereof;
(iii) the existence of any claim, set-off or other right that the Guarantor may have at any time against Parent, Merger Sub or the Guaranteed Party, whether in connection with any Guaranteed Obligation or otherwise, other than in each case (A) any claim or set-off against or defense to the payment of the Guaranteed Obligations that may be available to Parent or Merger Sub under the Merger Agreement or (B) with respect to this Limited Guarantee, a breach by the Guaranteed Party of this Limited Guarantee;
(iv) the failure of the Guaranteed Party to assert any claim or demand or enforce any right or remedy against Parent, Merger Sub, the other Guarantor or any other Person primarily or secondarily liable with respect to any Guaranteed Obligation, other than as and if required by Section 2(a) (including in the event any Person becomes subject to a bankruptcy, reorganization, insolvency, liquidation or similar proceeding);
(v) the adequacy of any other means the Guaranteed Party may have of obtaining repayment of any of the Guaranteed Obligations;
(vi) any other act or omission that may in any manner or to any extent vary the risk of the Guarantor or otherwise operate as a discharge of the Guarantor as a matter of law or equity (other than as a result of payment of the Guaranteed Obligations in accordance with their terms), other than in each case with respect to (A) any claim or set-off against or defense to the payment of the Guaranteed Obligations that may be available to Parent or Merger Sub under the Merger Agreement or (B) with respect to this Limited Guarantee, a breach by the Guaranteed Party of this Limited Guarantee; or
(vii) the value, genuineness, validity, illegality or enforceability of the Merger Agreement, the Other Guarantee, the Equity Commitment Letter, the equity commitment letter entered into between the Sponsors other than the Guarantor (the “Other Sponsor”) and Parent dated as of the date hereof (the “Other Equity Commitment Letter”), or any other agreement or instrument referred to herein or therein.
(c) The Guarantor hereby waives any and all notice of the creation, renewal, extension or accrual of any of the Guaranteed Obligations and notice of or proof of reliance by the Guaranteed Party upon this Limited Guarantee or acceptance of this Limited Guarantee. Without expanding the obligations of the Guarantor hereunder, the Guaranteed Obligations, and any of them, shall conclusively be deemed to have been created, contracted or incurred in reliance upon this Limited Guarantee, and all dealings between Parent and/or the Guarantor, on the one hand, and the Guaranteed Party, on the other, shall likewise be conclusively presumed to have been had or consummated in reliance upon this Limited Guarantee. Except as provided in Section 2(a), when pursuing any of its rights and remedies hereunder against the Guarantor, the Guaranteed Party shall be under no obligation to pursue (or elect among) such rights and remedies it may have against Parent, Merger Sub, the Other
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Guarantor or any other Person for the Guaranteed Obligations or any right of offset with respect thereto, and any failure by the Guaranteed Party to pursue (or elect among) such other rights or remedies or to collect any payments from Parent or any such other Person or to realize upon or to exercise any such right of offset, and any release by the Guaranteed Party of Parent or any such other Person or any right of offset, shall not relieve the Guarantor of any liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of Law, of the Guaranteed Party, subject to the provisions of Section 2(a).
(d) To the fullest extent permitted by Law, the Guarantor irrevocably waives promptness, diligence, grace, acceptance hereof, presentment, demand, notice of non-performance, default, dishonor and protest and any other notice not provided for herein (except for notices to be provided to Parent and its counsel pursuant to the terms of the Merger Agreement).
(e) The Guaranteed Party shall not be obligated to file any claim relating to any Guaranteed Obligation in the event that Parent becomes subject to a bankruptcy, insolvency, reorganization or similar proceeding, and the failure of the Guaranteed Party to so file shall not affect the Guarantor’s obligations hereunder. In the event that any payment to the Guaranteed Party in respect of any Guaranteed Obligation is rescinded or must otherwise be returned to Parent, Merger Sub, the Guarantor, the Other Guarantor or any other Person for any reason whatsoever, the Guarantor shall remain liable hereunder in accordance with the terms hereof with respect to such Guaranteed Obligation as if such payment had not been made, so long as this Limited Guarantee has not been terminated in accordance with its terms.
(f) Notwithstanding anything to the contrary contained in this Limited Guarantee, the Guaranteed Party hereby agrees that: (i) the Guarantor shall have all defenses to the payment of its obligations under this Limited Guarantee that would be available to Parent and/or Merger Sub under the Merger Agreement with respect to the Guaranteed Obligations as well as any defenses in respect of fraud or willful misconduct of the Guaranteed Party hereunder or any breach by the Guaranteed Party of any term hereof, and (ii) the Guarantor may assert, as a defense to, or release or discharge of, any payment or performance by the Guarantor under this Limited Guarantee, any claim, set-off, deduction, defense or release that Parent or Merger Sub would be entitled to assert against the Guaranteed Party under the terms of, or with respect to, the Merger Agreement that would relieve each of Parent and Merger Sub of its obligations under the Merger Agreement with respect to the Guaranteed Obligations.
3. Sole Remedy; No Recourse. Notwithstanding anything that may be expressed or implied in this Limited Guarantee or any document or instrument delivered in connection herewith, by its acceptance of the benefits of this Limited Guarantee, the Guaranteed Party covenants, agrees and acknowledges that no Person other than the Guarantor (and any successors and permitted assignees thereof) has any obligations hereunder and that, notwithstanding that the Guarantor may be a partnership, limited liability company or corporation, the Guaranteed Party has no right of recovery under this Limited Guarantee or, except for the Retained Claims (as defined below), in any document or instrument delivered in connection herewith, or for any claim based on, in respect of, or by reason of, such obligations or their creation, against, and no personal liability shall attach to, the former, current or future equity holders, controlling persons, directors, officers, employees, agents, advisors, representatives, members, managers, or general or limited partners of the Guarantor or any of the Guarantor’s Affiliates, or any former, current or future equity holder, controlling person, director, officer, employee, general or limited partner, member, manager, Affiliate, agent, advisor, or representative of any of the foregoing (each a “Non-Recourse Party”), through Parent, Merger Sub or otherwise, whether by or through attempted piercing of the corporate veil, by or through a claim by or on behalf of Parent or Merger Sub against any Non-Recourse Party (including for any claim and action to compel Parent to enforce the Equity Commitment Letter), except against the Guarantor solely with respect to the Equity Commitment Letter in accordance with the terms thereof, by the enforcement of any assessment or by any legal or equitable proceeding, by virtue of any statute, regulation or applicable Law, or otherwise. The Guaranteed Party further covenants, agrees and acknowledges that the only
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rights of recovery and claims against the Guarantor or any Non-Recourse Party that the Guaranteed Party, any of its Affiliates, any of the direct or indirect shareholder of the Guaranteed Party or any of its Subsidiaries, or any of the Affiliates, equity holders, controlling persons, directors, officers, employees, members, managers, general or limited partners, representatives, advisors or agents of the foregoing (collectively, the “Guaranteed Party Group”) has in respect of the Merger Agreement or the Transactions are its rights (including through exercise of third party beneficiary rights) to recover from, and assert claims against, (a) Parent and Merger Sub and their respective successors and assigns under and to the extent expressly provided in the Merger Agreement, (b) the Guarantor (but not any Non-Recourse Party) and its successors and assigns under and to the extent expressly provided in this Limited Guarantee and the Other Guarantor and its successors and assigns pursuant to the Other Guarantee (in each case, subject to the Maximum Amount set forth in this Limited Guarantee or the Other Guarantee to the extent applicable and the other limitations described herein or therein), and (c) (including through exercise of third party beneficiary rights) the Guarantor under and to the extent provided in the Equity Commitment Letter and the Other Sponsor under and to the extent provided in the Other Equity Commitment Letter, in each case pursuant to and in accordance with the terms thereof (claims against (a) through (c) collectively, the “Retained Claims”). The Guaranteed Party acknowledges and agrees that Parent and Merger Sub have no assets other than certain contract rights and cash in a de minimis amount and that no additional funds are expected to be contributed to Parent or Merger Sub other than as contemplated by the Equity Commitment Letter and the Other Equity Commitment Letter. Nothing set forth in this Limited Guarantee shall confer or give or shall be construed to confer or give to any Person other than the Guaranteed Party (including any person acting in a Representative capacity) any rights or remedies against any Person including the Guarantor, except as expressly set forth herein. For the avoidance of doubt, none of the Guarantor, Parent, Merger Sub, the Other Guarantor, the Other Sponsor or their respective successors and assigns under the Merger Agreement, the Equity Commitment Letter, the Other Equity Commitment Letter, this Limited Guarantee or the Other Guarantee shall be a Non-Recourse Party.
4. No Subrogation. The Guarantor will not exercise against Parent or Merger Sub any rights of subrogation or contribution, whether arising by contract or operation of law (including, without limitation, any such right arising under bankruptcy or insolvency Laws) or otherwise, by reason of any payment by it pursuant to the provisions of Section 1 hereof unless and until the Guaranteed Obligations (subject to the Maximum Amount) have been paid in full.
5. Termination. This Limited Guarantee shall terminate (and the Guarantor shall have no further obligations hereunder) upon the earliest to occur of (a) the Effective Time, (b) the payment in full of the Guaranteed Obligations (subject to the Maximum Amount) and (c) the valid termination of the Merger Agreement in accordance with its terms under the circumstance of which Parent would not be obligated to pay the Parent Termination Fee pursuant to the Merger Agreement. Notwithstanding the immediately preceding sentence, the obligations of the Guarantor hereunder shall expire automatically six (6) months following the valid termination of the Merger Agreement in a manner giving rise to an obligation of Parent to pay the Parent Termination Fee (the “Fee Claim Period”), unless a claim for payment of the Guaranteed Obligations (subject to the Maximum Amount) is made in accordance with this Limited Guarantee prior to the end of the Fee Claim Period, in which case the Guarantor’s obligations hereunder shall be discharged upon the date on which such claim is finally satisfied or otherwise resolved by agreement of the parties hereto pursuant to Section 13. In the event that the Guaranteed Party or any of its controlled Affiliates or Subsidiaries expressly asserts in any litigation or other legal proceeding relating to this Limited Guarantee (i) that the provisions hereof (including, without limitation, Section 1 hereof limiting the Guarantor’s aggregate liability to the Maximum Amount or Section 3 hereof relating to the sole and exclusive remedies of the Guaranteed Party and the Guaranteed Party Group against the Guarantor or any Non-Recourse Party) are illegal, invalid or unenforceable, in whole or in part, or (ii) any theory of liability against the Guarantor, any Non-Recourse Party, the Other Guarantor or any Non-Recourse Party of the Other Guarantor other than any Retained Claim, then (x) the obligations of the Guarantor under this Limited Guarantee shall terminate ab initio and be null and void, (y) if the Guarantor has previously made any payments under this Limited Guarantee, it shall be entitled to recover such payments from the Guaranteed Party and (z) neither the Guarantor nor any Non-Recourse Party shall have any liability to the Guaranteed Party or any of its equityholders, Affiliates or Subsidiaries with respect to the Merger Agreement or the Transactions or this Limited Guarantee.
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6. Continuing Guarantee. Unless terminated pursuant to the provisions of Section 5 hereof, this Limited Guarantee is a continuing one and shall remain in full force and effect until the indefeasible payment and satisfaction in full of the Guaranteed Obligations (subject to the Maximum Amount), shall be binding upon the Guarantor, its successors and assigns, and shall inure to the benefit of, and be enforceable by, the Guaranteed Party and its successors, permitted transferees and permitted assigns; provided that notwithstanding anything to the contrary in this Limited Guarantee, the provisions of this Limited Guarantee that are for the benefit of any Non-Recourse Party (including the provisions of Sections 3, 5 and 16) shall indefinitely survive any termination of this Limited Guarantee for the benefit of the Guarantor and any such Non-Recourse Party. All obligations to which this Limited Guarantee applies or may apply under the terms hereof shall be conclusively presumed to have been created in reliance hereon.
7. Entire Agreement. This Limited Guarantee, the Merger Agreement, the Equity Commitment Letter and that certain interim investors agreement, dated as of the date hereof, by and among the Guarantor, the Other Guarantor, Parent, Merger Sub and other parties named therein, the Confidentiality Agreements (as defined in the Merger Agreement) and other agreements or documents referenced under any of the forgoing constitute the entire agreement with respect to the subject matter hereof, and supersede all other prior agreements and understandings, both written and oral, among Parent, Merger Sub and/or the Guarantor or any of their respective Affiliates, on the one hand, and the Guaranteed Party or any of its Affiliates, on the other hand.
8. Changes in Obligations; Certain Waivers. The Guarantor agrees that the Guaranteed Party may, in its sole discretion, at any time and from time to time, without notice to or further consent of the Guarantor, extend the time of payment of the Guaranteed Obligations (subject to the Maximum Amount), and may also make any agreement with Parent, Merger Sub or the Other Guarantor for the extension, renewal, payment, compromise, discharge or release thereof, in whole or in part, or for any modification of any agreement between the Guaranteed Party and Parent, Merger Sub, the Other Guarantor or any other Person, without in any way impairing or affecting the Guarantor’s obligations under this Limited Guarantee.
9. Acknowledgement. The Guarantor acknowledges that it will receive substantial indirect benefits from the transactions contemplated by the Merger Agreement and that the waivers set forth in this Limited Guarantee are knowingly made in contemplation of such benefits. The Guarantor hereby covenants and agrees that, subject to Section 2(f), it shall not institute, and shall cause its Affiliates not to institute, any proceeding asserting that this Limited Guarantee is illegal, invalid or unenforceable in accordance with its terms.
10. Representations and Warranties. The Guarantor hereby represents and warrants that:
(a) it is duly incorporated, validly existing and in good standing under the laws of the jurisdiction in which it is formed and has all requisite corporate or similar power and authority to execute, deliver and perform this Limited Guarantee;
(b) the execution, delivery and performance of this Limited Guarantee have been duly authorized by all necessary action on the Guarantor’s part and do not contravene any provision of the Guarantor’s organizational documents or any Law, regulation, rule, decree, order, judgment or contractual restriction binding on the Guarantor or its assets;
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(c) except as is not, individually or in the aggregate, reasonably likely to impair or delay the Guarantor’s performance of its obligations in any material respect, all consents, approvals, authorizations, permits of, filings with and notifications to, any governmental authority necessary for the due execution, delivery and performance of this Limited Guarantee by the Guarantor have been obtained or made and all conditions thereof have been duly complied with, and no other action by, and no notice to or filing with, any governmental authority or regulatory body is required in connection with the execution, delivery or performance of this Limited Guarantee;
(d) assuming due execution and delivery of this Limited Guarantee and the Merger Agreement by the Guaranteed Party, this Limited Guarantee has been duly and validly executed and delivered by the Guarantor and constitutes a legal, valid and binding obligation of the Guarantor enforceable against the Guarantor in accordance with its terms, subject to the Enforceability Exceptions; and
(e) the Guarantor has the financial capacity to pay and perform its obligations under this Limited Guarantee, and all funds necessary for the Guarantor to fulfill its obligations under this Limited Guarantee shall be available to the Guarantor (or its assignee pursuant to Section 11 hereof) for so long as this Limited Guarantee shall remain in effect in accordance with Section 6 hereof.
11. No Assignment. Neither the Guarantor nor the Guaranteed Party may assign or delegate its rights, interests or obligations hereunder to any other Person, in whole or in part, (except by operation of Law) without the prior written consent of the Guaranteed Party (in the case of an assignment or delegation by the Guarantor) or the Guarantor (in the case of an assignment or delegation by the Guaranteed Party); except that the rights, interests or obligations of the Guarantor under this Limited Guarantee may be assigned and/or delegated, in whole or in part, by the Guarantor to one or more of its Affiliates or to one or more funds advised or managed by any such Affiliate, provided, that such assignment and/or delegation shall not relieve the Guarantor of its obligations hereunder. Any attempted assignment in violation of this Section 11 shall be null and void.
12. Notices. All notices, requests, claims, demands and other communications hereunder shall be given by the means specified in Section 10.4 of the Merger Agreement (and shall be deemed given as specified therein) as follows:
if to the Guarantor:
c/o Tencent Holdings Limited
Level 29, Three Pacific Place
1 Queen’s Road East
Wanchai, Hong Kong
Attention: Compliance and Transactions Department
Email: legalnotice@tencent.com
with copies to (which do not constitute notice):
Tencent Binhai Towers, No.33 Haitian 2nd Road
Nanshan District, Shenzhen
P.R. China 518054
Attention: Merger and Acquisitions Department
Email: PD_Support@tencent.com
Latham & Watkins LLP
18th Floor, One Exchange Square
8 Connaught Place, Central
Attention: Frank Sun, Benjamin Su and Terris Tang
Email: Frank.Sun@lw.com; Benjamin.Su@lw.com; Terris.Tang@lw.com
If to the Guaranteed Party, as provided in the Merger Agreement.
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13. Governing Law; Dispute Resolution.
(a) Subject to Section 13(b), this Limited Guarantee shall be interpreted, construed and governed by and in accordance with the Laws of the State of New York without regard to the conflict of Law principles thereof that would subject such matter to the Laws of another jurisdiction. Any disputes, actions and proceedings against any party or arising out of or in any way relating to this Limited Guarantee shall be submitted to the Hong Kong International Arbitration Centre (“HKIAC”) and resolved in accordance with the Arbitration Rules of HKIAC (the “Rules”) in force at the relevant time and as may be amended by this Section 13. 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 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 13, 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 Limited Guarantee is governed by the Laws of the State of New York, 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 13(b) is only applicable to the seeking of interim injunctions and does not otherwise restrict the application of Section 13(a) in any way.
14. Counterparts. This Limited Guarantee shall not be effective until it has been executed and delivered by all parties hereto. This Limited Guarantee may be executed by facsimile or electronic transmission in pdf format, and in one or more counterparts, and by the different parties hereto in separate counterparts, each of which when executed shall be deemed to be an original but all of which taken together shall constitute one and the same agreement.
15. Third-Party Beneficiaries. This Limited Guarantee shall be binding upon and inure solely to the benefit of the parties hereto and their respective successors and permitted assigns, and nothing express or implied in this Limited Guarantee is intended to, or shall, confer upon any other person any benefits, rights or remedies under or by reason of, or any rights to enforce or cause the Guaranteed Party to enforce, the obligations set forth herein; provided, that the Non-Recourse Parties and the members of the Guaranteed Party Group shall be third party beneficiaries of the provisions hereof that are expressly for their benefit.
16. Confidentiality. This Limited Guarantee shall be treated as confidential and is being provided to the Guaranteed Party solely in connection with the Merger. This Limited Guarantee may not be used, circulated, quoted or otherwise referred to in any document (except for the Merger Agreement and any agreement or document referred to therein), except with the written consent of the Guarantor; provided that the parties may disclose this Limited Guarantee to the extent required by Law, the applicable rules of any national securities exchange, in connection with any SEC filings relating to the Merger and in connection with any litigation relating to the Merger, the Merger Agreement or the Transactions as permitted by or provided in the Merger Agreement and the Guarantor may disclose it to any Non-Recourse Party that needs to know of the existence of this Limited Guarantee and is subject to the confidentiality obligations set forth herein.
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17. Waiver of Jury Trial. EACH OF THE PARTIES TO THIS LIMITED GUARANTEE HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS LIMITED GUARANTEE OR THE TRANSACTIONS CONTEMPLATED HEREBY. EACH PARTY MAKES THIS WAIVER VOLUNTARILY AND SUCH PARTY HAS BEEN INDUCED TO ENTER INTO THIS LIMITED GUARANTEE BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS CONTAINED IN THIS SECTION 17.
18. Miscellaneous.
(a) No amendment, supplementation, modification or waiver of this Limited Guarantee or any provision hereof shall be enforceable unless approved by the Guaranteed Party and the Guarantor in writing. The Guaranteed Party and its Affiliates are not relying upon any prior or contemporaneous statement, undertaking, understanding, agreement, representation or warranty, whether written or oral, made by or on behalf of the Guarantor or any Non-Recourse Party in connection with this Limited Guarantee except as expressly set forth herein by the Guarantor. The Guarantor and its Affiliates are not relying upon any prior or contemporaneous statement, undertaking, understanding, agreement, representation or warranty, whether written or oral, made by or on behalf of the Guaranteed Party in connection with this Limited Guarantee except as expressly set forth herein by the Guaranteed Party.
(b) Any term or provision of this Limited Guarantee that is invalid or unenforceable in any jurisdiction shall be, as to such jurisdiction, ineffective solely to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction; provided, however, that this Limited Guarantee may not be enforced in violation of the limitation of the amount payable by the Guarantor hereunder to the Maximum Amount provided in Section 1 hereof and to the provisions of Sections 3 and 5 hereof. Each party hereto covenants and agrees that it shall not assert, and shall cause its respective Affiliates and representatives not to assert, that this Limited Guarantee or any part hereof is invalid, illegal or unenforceable in accordance with its terms.
(c) The descriptive headings herein are inserted for convenience of reference only and are not intended to be part of or to affect the meaning or interpretation of this Limited Guarantee.
(d) All parties acknowledge that each party and its counsel have reviewed this Limited Guarantee and that any rule of construction to the effect that any ambiguities are to be resolved against the drafting party shall not be employed in the interpretation of this Limited Guarantee.
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IN WITNESS WHEREOF, the Guarantor has caused this Limited Guarantee to be executed and delivered as of the date first written above by its officer or representative thereunto duly authorized.
| MORESPARK LIMITED | ||
| By: | /s/ Ma Huateng | |
| Name: | Ma Huateng | |
| Title: | Authorized Signatory | |
A-1
IN WITNESS WHEREOF, the Guaranteed Party has caused this Limited Guarantee to be executed and delivered as of the date first written above by its officer or representative thereunto duly authorized.
| BITAUTO HOLDINGS LIMITED | ||
| By: | /s/ Erhai Liu | |
| Name: | Erhai Liu | |
| Title: | Director | |
A-2
Exhibit 11
Execution Version
EQUITY COMMITMENT LETTER
Morespark Limited
c/o Tencent Holdings Limited
Level 29, Three Pacific Place
1 Queen’s Road East
Wanchai, Hong Kong
June 12, 2020
Yiche Holding Limited
c/o Tencent Holdings Limited
Level 29, Three Pacific Place
1 Queen’s Road East
Wanchai, Hong Kong
Attention: Compliance and Transactions Department
Ladies and Gentlemen:
Reference is made to that certain Agreement and Plan of Merger, dated as of the date hereof (as amended, restated, supplemented or otherwise modified from time to time, the “Merger Agreement”), by and among Yiche Holding Limited, an exempted company incorporated with limited liability under the Laws of the Cayman Islands (“Parent”), Yiche Mergersub Limited, an exempted company incorporated with limited liability under the Laws of the Cayman Islands and a wholly-owned subsidiary of Parent (“Merger Sub”) and Bitauto Holdings Limited, an exempted company incorporated with limited liability under the Laws of the Cayman Islands (the “Company”), pursuant to which, upon the terms and subject to the conditions set forth therein, Merger Sub will merge with and into the Company (the “Merger”), with the Company surviving the merger as a direct wholly-owned subsidiary of Parent. Concurrently with the delivery of this letter agreement, Hammer Capital Opportunities Fund L.P., acting through its general partner Hammer Capital Opportunities General Partner (the “Other Sponsor”) is entering into a letter agreement substantially identical to this letter agreement (the “Other Sponsor Equity Commitment Letter”) committing to invest or cause to be invested in Parent. Capitalized terms used and not defined herein but defined in the Merger Agreement shall have the meanings ascribed to them in the Merger Agreement. This letter agreement is being delivered by the undersigned (“Sponsor”) to Parent in connection with the execution of the Merger Agreement.
1. Commitment. This letter agreement confirms the commitment of Sponsor, subject to the terms and conditions set forth herein, to contribute (or cause to be contributed) (the “Contribution”) to Parent or any other person as directed by Parent for the Specified Purpose, at or prior to the Effective Time, cash in the amount of US$698,955,034 (such sum, subject to the adjustment pursuant to this Section 1, the “Commitment”), in exchange for equity securities of Parent to be issued to Sponsor, subject to the terms and conditions hereof, provided that in the event the Sponsor or any of its Affiliates acquires any Shares and/or ADSs from Proudview Limited or Serene View Investment Limited (together, the “Founder Shareholders”) prior to the Closing pursuant to that certain consent letter agreement dated October 15, 2019, by and among the Sponsor, the Other Sponsor, the Founder Shareholders and certain other parties, then the Commitment shall be reduced by an amount equal to the number of Shares and/or ADSs so acquired multiplied by the Per Share Merger Consideration and/or the Per ADS Merger Consideration, as applicable. Such Commitment, and the corresponding commitment under the Other Sponsor Equity Commitment Letter, shall be used by Parent, to the extent necessary, solely for the purpose (the “Specified Purpose”) of (a) funding (or cause to be funded) the Merger Consideration and any other amounts required to be paid by Parent pursuant to the Merger Agreement, and (b) paying (or cause to be paid) fees and expenses incurred by Parent, the Company and, following the Closing, the Surviving Entity, in connection with the transactions contemplated by
the Merger Agreement (which, in each case and for the avoidance of doubt, shall not include the Parent Termination Fee or any Guaranteed Obligations (as defined in the Limited Guarantee given by Sponsor) in respect of the Parent Termination Fee under the Limited Guarantee given by Sponsor). Sponsor may effect the Contribution directly or indirectly through one or more Affiliates of Sponsor or any investment fund or partnership advised or managed by the Sponsor or any of its Affiliates. Sponsor shall not, under any circumstances, be obligated to contribute more than the Commitment to Parent, Merger Sub or any other Person pursuant to the terms of this letter agreement, and the liability of Sponsor hereunder shall not exceed the amount of the Commitment less any portion of the Commitment that has been funded in accordance with the terms hereof. The amount of the Commitment to be funded under this letter agreement may be reduced in a manner agreed by Sponsor and the Other Sponsor in the event that Parent does not require all of the equity with respect to which Sponsor and the Other Sponsor have made the Commitments (as defined, with respect to Sponsor and the Other Sponsor, in this letter agreement or the Other Sponsor Equity Commitment Letter, as the case may be) but only to the extent that Parent and Merger Sub have sufficient fund to consummate the Merger and other transactions contemplated by the Merger Agreement following such reduction.
2. Conditions. The Commitment, including the obligation of Sponsor to fund the Commitment, shall be subject to (a) the execution and delivery of the Merger Agreement by the Company, (b) the satisfaction (as determined by Parent) or waiver by Parent of each of the conditions to Parent’s and Merger Sub’s obligations to consummate the Transactions (other than those conditions that by their nature are to be satisfied at the Closing, but subject to the prior or substantially concurrent satisfaction or waiver of such conditions), (c) the substantially contemporaneous consummation of the Closing, and (d) the substantially contemporaneous funding to Parent of the contributions by the Other Sponsor contemplated by the Other Sponsor Equity Commitment Letter.
3. Limited Guarantee. Concurrently with the execution and delivery of this letter agreement, Sponsor is executing and delivering to the Company a limited guarantee, dated as of the date hereof, related to Parent’s and Merger Sub’s certain payment obligations under the Merger Agreement (the “Limited Guarantee”). The Company’s (i) remedies against Sponsor and its successors and assigns under the Limited Guarantee, (ii) remedies against Parent and Merger Sub and their respective successors and assigns under the Merger Agreement and (iii) the Company Third Party Beneficiary Rights (as defined below) shall be, and are intended to be, the sole and exclusive remedies available to the Company, any of its Affiliates, any of the direct or indirect shareholder of the Company or any of its Subsidiaries, or any of the Affiliates, equity holders, controlling persons, directors, officers, employees, members, managers, general or limited partners, representatives, advisors or agents of the foregoing against Sponsor or any of the Sponsor Affiliates (as defined below) in respect of any liabilities, losses, damages, obligations or recoveries of any kind (including special, exemplary, consequential, indirect or punitive damages or damages arising from loss of profits, business opportunities or goodwill, diminution in value or any other losses or damages, whether at law, in equity, in contract, in tort or otherwise) arising under, or in connection with any breach of the Merger Agreement (whether willfully, intentionally, unintentionally or otherwise) or of the failure of the Merger to be consummated for any reason or otherwise in connection with the transactions contemplated hereby and thereby or in respect of any oral representations made or alleged to have been made in connection therewith (whether or not Parent or Merger Sub’s breach is caused by the breach by Sponsor of its obligations under this letter agreement).
4. Enforceability; Company Third-Party Beneficiary Rights. This letter agreement may only be enforced by Parent and none of Parent’s or Merger Sub’s creditors nor any other Person that is not a party to this letter agreement shall have any right to enforce this letter agreement or to cause Parent to enforce this letter agreement, provided that, to the extent the Company has obtained an Order of specific performance pursuant to, and subject to the conditions in, Section 10.11 of the Merger Agreement, and subject to the conditions described in Section 2, and subject further to Section 6, the Company is hereby made a third party beneficiary of the rights granted to Parent under this letter agreement to the extent, and only to the extent, of the rights set forth in Sections 1, 4, 5, 6 and 12 and shall be entitled to an injunction or an Order of specific performance (or any other non-monetary
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equitable remedy) to cause the Contribution to be funded (the “Company Third Party Beneficiary Rights”). Subject to Company Third Party Beneficiary Rights, Sponsor and Parent hereby agree that their respective agreements and covenants set forth herein are solely for the benefit of the other party hereto, in accordance with and subject to the terms of this letter agreement. In no event shall this letter agreement be enforced by any Person unless (a) the enforcement of the Other Sponsor Equity Commitment Letter dated as of the date hereof is being substantially concurrently pursued by that Person or Parent (except to the extent that such enforcement is prohibited by any applicable Law or Order) or (b) the Other Sponsor has satisfied or is prepared to satisfy its obligations under the Other Sponsor Equity Commitment Letter.
5. No Modification; Entire Agreement. This letter agreement may not be amended or otherwise modified without the prior written consent of (i) Parent and Sponsor, and (ii) with respect to any provisions of this letter agreement with respect to which the Company is expressly made a third party beneficiary or to the extent that such amendment or modification would be adverse to the Company Third Party Beneficiary Rights, the Company. Together with the Merger Agreement, the Limited Guarantee, that certain interim investors agreement, dated as of the date hereof, by and among the Sponsor, the Other Sponsor, Parent, Merger Sub and other parties named therein, the Confidentiality Agreements (as defined in the Merger Agreement) and other agreements or documents referenced in hereunder or thereunder, this letter agreement constitutes the sole agreement, and supersedes all prior agreements, understandings and statements, written or oral, between Sponsor or any of its Affiliates, on the one hand, and Parent or any of its Affiliates, on the other, with respect to the transactions contemplated hereby.
6. Governing Law; Jurisdiction.
(a) Subject to Section 6(c), this letter agreement and all disputes or controversies arising out of or relating to this letter agreement or the transactions contemplated hereby shall be interpreted, construed and governed by and in accordance with the Laws of the State of New York without regard to the conflicts of Law principles thereof that would subject such matter to the Laws of another jurisdiction.
(b) Any Legal Proceedings arising out of or in any way relating to this letter agreement shall be submitted to the Hong Kong International Arbitration Centre (“HKIAC”) and resolved in accordance with the Arbitration Rules of HKIAC in force at the relevant time and as may be amended by this Section 6 (the “Rules”). The place of arbitration shall be Hong Kong. The official language of the arbitration shall be English and the 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 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.
(c) Notwithstanding the foregoing, the parties hereto hereby consent to and agree that in addition to any recourse to arbitration as set out in this Section 6, any party or the Company 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 letter agreement is governed by the Laws of the State of New York, 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 6(c) is only applicable to the seeking of interim injunctions and does not restrict the application of Section 6(b) in any way.
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7. Counterparts. This letter agreement may be executed manually, electronically by email or by facsimile by the parties, in any number of counterparts, each of which shall be considered, and all such counterparts shall together constitute, one and the same agreement and shall become effective when a counterpart hereof shall have been signed by each of the parties and delivered to the other parties.
8. Third Party Beneficiaries. Subject to the Company Third Party Beneficiary Rights, the parties hereby agree that their respective representations, warranties and covenants set forth herein are solely for the benefit of the other party hereto, in accordance with and subject to the terms of this letter agreement, and this letter agreement is not intended to, and does not, confer upon any Person other than the parties hereto any rights or remedies hereunder or any rights to enforce the Commitment or any provision of this letter agreement except for the Company Third Party Beneficiary Rights; provided, that, notwithstanding anything to the contrary in this letter agreement, each Sponsor Affiliate shall be a third party beneficiary of any provisions herein that are expressly for the benefit of such Sponsor Affiliate (including the provisions of Sections 3 and 11), and all such provisions shall survive any termination of this letter agreement indefinitely. Without limiting the foregoing, and subject to the Company Third Party Beneficiary Rights, Parent’s creditors shall have no right to enforce this letter agreement or to cause Parent to enforce this letter agreement.
9. Confidentiality. This letter agreement shall be treated as confidential and is being provided to Parent solely in connection with the Merger. This letter agreement may not be used, circulated, quoted or otherwise referred to in any document (except for the Merger Agreement and any agreement or documents contemplated therein), except with the written consent of the other party; provided, however, that the existence and content of this letter agreement may be disclosed (a) by each of Sponsor and Parent to the Other Sponsor, the Company or their Representatives; (b) to the extent required by Law, the applicable rules of any national securities exchange or in connection with any SEC filings relating to the Merger and in connection with any litigation relating to the Merger, the Merger Agreement or the Transactions as permitted by or provided in the Merger Agreement, and (c) by Sponsor to any Sponsor Affiliate (as defined below) that needs to know of the existence of and content of this letter agreement and is subject to the confidentiality obligations set forth herein.
10. Termination. This letter agreement, and the obligation of Sponsor to fund the Commitment will terminate automatically and immediately upon the earliest to occur of (a) the Closing; (b) the valid termination of the Merger Agreement in accordance with its terms; (c) the satisfaction in full of Sponsor’s obligation to complete the Contribution at or prior to the Closing or (d) the assertion by the Company or any of its Affiliates, directly or indirectly, in any litigation or other Legal Proceeding of any claim (whether in tort, contract or otherwise) against any of the Sponsor, any Sponsor Affiliate (as defined below), Parent or Merger Sub, any Other Sponsor or any “Sponsor Affiliate” as defined in the Other Sponsor Equity Commitment Letter, relating to this letter agreement, any of the Limited Guarantees, the Merger Agreement, or the Other Sponsor Equity Commitment Letter or any of the transactions contemplated thereby (other than (i) a claim seeking an Order of specific performance or other equitable relief to cause the funding of the Contribution in accordance with Section 4 hereof and/or the funding of the “Contribution” of the Other Sponsor in accordance with Section 4 of the Other Sponsor Equity Commitment Letter or (ii) a claim seeking an Order of specific performance or other equitable relief against Parent or Merger Sub in accordance with Section 10.11 of the Merger Agreement). Upon termination of this letter, Sponsor shall not have any further obligations or liabilities hereunder.
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11. No Recourse. Notwithstanding anything that may be expressed or implied in this letter agreement, or any document or instrument delivered in connection herewith, other than with respect to the Retained Claims (as defined in the Limited Guarantee) and the Company Third Party Beneficiary Rights, Parent covenants, agrees and acknowledges that no Person other than Sponsor has any obligation hereunder and that, notwithstanding that Sponsor may be a partnership or limited liability company, Parent has no right of recovery under this letter agreement or under any document or instrument delivered in connection herewith or in respect of any oral representations made or alleged to have been made in connection herewith or therewith, or for any claim based on, in respect of, or by reason of, such obligations or their creation, against, and no recourse shall be had against, and no personal liability shall attach to, the former, current or future direct or indirect equity holders, controlling persons, directors, officers, employees, agents, advisors, representatives, members, managers, general or limited partners or assignees of Sponsor or its Affiliates, or any former, current or future equity holder, controlling person, director, officer, employee, general or limited partner, member, manager, Affiliate, agent, advisors or representatives of any of the foregoing (each, a “Sponsor Affiliate”), through Sponsor or otherwise, whether by or through attempted piercing the corporate veil, by or through a claim (whether at law or equity or in tort, contract or otherwise) by or on behalf of Parent or Sponsor against any Sponsor Affiliates, whether by the enforcement of any assessment or by any legal or equitable proceeding, by virtue of any statute, regulation or applicable Law, or otherwise.
12. Assignment. This letter agreement shall not be assigned by any of the parties (whether by operation of Law or otherwise) without the prior written consent of the other party and the Company, except that, without the prior written consent of Parent and the Company, the rights, interests or obligations under this letter agreement may be assigned and/or delegated, in whole or in part, by Sponsor to one or more of its Affiliates or one or more investment funds or partnerships advised or managed by the Sponsor or any of its Affiliates, provided, that such assignment and/or delegation shall not relieve Sponsor of its obligations hereunder. Any attempted assignment in violation of this Section 12 shall be null and void.
13. Representations and Warranties of Sponsor. Sponsor hereby represents and warrants that (a) it is duly incorporated, validly existing and in good standing under the laws of the jurisdiction in which it is formed and has all requisite corporate or similar power and authority to execute, deliver and perform this letter agreement; (b) the execution, delivery and performance of this letter agreement have been duly authorized by all necessary action on Sponsor’s part and do not contravene any provision of Sponsor’s organizational documents or any Law, regulation, rule, decree, order, judgment or contractual restriction binding on Sponsor or its assets; (c) all consents, approvals, authorizations, permits of, filings with and notifications to, any governmental authority necessary for the due execution, delivery and performance of this letter agreement by Sponsor have been obtained or made and all conditions thereof have been duly complied with, and no other action by, and no notice to or filing with, any governmental authority or regulatory body is required in connection with the execution, delivery or performance of this letter agreement; (d) this letter agreement has been duly and validly executed and delivered by Sponsor and (assuming due execution and delivery of this letter agreement, the Merger Agreement and the Limited Guarantee by all parties hereto and thereto, as applicable, other than Sponsor) constitutes a legal, valid and binding obligation of Sponsor enforceable against Sponsor in accordance with its terms, subject to the Enforceability Exceptions; and (e) Sponsor has the financial capacity to pay the Contribution and perform its obligations under this letter agreement, and all funds necessary for Sponsor to fulfill the Contribution and its other obligations under this letter agreement shall be available to Sponsor for so long as this letter agreement shall remain in effect.
14. Representations and Warranties of Parent. Parent hereby represents and warrants to the Sponsor that (a) it is duly incorporated, validly existing and in good standing under the laws of the jurisdiction in which it is formed and has all requisite corporate or similar power and authority to execute, deliver and perform this letter agreement; (b) the execution, delivery and performance of this letter agreement have been duly authorized by all necessary action on Parent’s part and do not contravene any provision of Parent’s organizational documents or any Law, regulation, rule, decree, order, judgment or contractual restriction binding on Parent or its assets; (c) all consents, approvals, authorizations, permits of, filings with and notifications to, any governmental authority necessary for the due execution, delivery and performance of this letter agreement by Parent have been obtained or made and all conditions thereof have been duly complied with, and no other action by, and
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no notice to or filing with, any governmental authority or regulatory body is required in connection with the execution, delivery or performance of this letter agreement; and (d) this letter agreement has been duly and validly executed and delivered by Parent and (assuming due execution and delivery of this letter agreement, the Merger Agreement and the Limited Guarantee by all parties hereto and thereto, as applicable, other than Parent) constitutes a legal, valid and binding obligation of Parent enforceable against Parent in accordance with its terms, subject to the Enforceability Exceptions.
15. Notices. All notices and other communications hereunder shall be in writing and shall be deemed to have been duly given when delivered in person or upon confirmation of receipt when transmitted by facsimile transmission or by electronic mail or on receipt after dispatch by registered or certified mail, postage prepaid, addressed, or on the next business day if transmitted by international overnight courier, in each case to the parties at the following addresses (or at such other address for a party as shall be specified by like notice):
if to Sponsor, to:
c/o Tencent Holdings Limited
Level 29, Three Pacific Place
1 Queen’s Road East
Wanchai, Hong Kong
Attention: Compliance and Transactions Department
Email: legalnotice@tencent.com
with copies to (which do not constitute notice):
Tencent Binhai Towers, No.33 Haitian 2nd Road
Nanshan District, Shenzhen
P.R. China 518054
Attention: Merger and Acquisitions Department
Email: PD_Support@tencent.comand
Latham & Watkins LLP
18th Floor, One Exchange Square
8 Connaught Place, Central
Attention: Frank Sun, Benjamin Su and Terris Tang
Email: Frank.Sun@lw.com; Benjamin.Su@lw.com; Terris.Tang@lw.com
If to Parent, to the address set forth in the Merger Agreement.
16. Waiver of Jury Trial. EACH OF THE PARTIES TO THIS LETTER AGREEMENT HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS LETTER AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. EACH PARTY MAKES THIS WAIVER VOLUNTARILY AND SUCH PARTY HAS BEEN INDUCED TO ENTER INTO THIS LETTER AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS CONTAINED IN THIS SECTION 16.
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| Sincerely, | ||
| MORESPARK LIMITED | ||
| By: | /s/ Ma Huateng | |
| Name: | Ma Huateng | |
| Title: | Authorized Signatory | |
Agreed to and accepted:
| YICHE HOLDING LIMITED | ||
| By: | /s/ Leiwen Yao | |
| Name: | Leiwen Yao | |
| Title: | Director | |
Exhibit 12
Execution Version
SUPPORT AGREEMENT
This SUPPORT AGREEMENT (this “Agreement”) is made and entered into as of June 12, 2020, by and among Yiche Holding Limited, an exempted company organized and existing under the laws of the Cayman Islands (“Parent”) and certain shareholders of Bitauto Holdings Limited, an exempted company organized and existing under the laws of the Cayman Islands (the “Company”), listed on Schedule A hereto (each, a “Shareholder” and collectively, the “Shareholders”).
WHEREAS, substantially concurrently with the execution and delivery of this Agreement, Parent, Yiche Mergersub Limited, an exempted company organized and existing under the laws of the Cayman Islands and a wholly owned Subsidiary of Parent (“Merger Sub”) and the Company executed an Agreement and Plan of Merger (the “Merger Agreement”), pursuant to which Merger Sub will be merged with and into the Company (the “Merger”) with the Company surviving the Merger and becoming a wholly owned Subsidiary of Parent.
WHEREAS, as of the date of this Agreement, each Shareholder is the Beneficial Owner (as defined below) of the Existing Shares (as defined below) set forth opposite such Shareholder’s name on Schedule A hereto;
WHEREAS, as a condition and inducement to the willingness of Parent to enter into the Merger Agreement and pursue the Merger, Parent has required that each Shareholder agree, and each Shareholder has agreed, upon the terms and subject to the conditions set forth herein, to enter into this Agreement and abide by the covenants and obligations set forth herein; and
WHEREAS, as a condition and inducement to the willingness of the Shareholders solely in their capacity as Beneficial Owners of Covered Shares (as defined below) to enter into this Agreement and take such action contemplated hereunder in support of the Merger upon the terms and subject to the conditions set forth herein, Parent has agreed, upon the terms and subject to the conditions set forth herein, to enter into this Agreement and abide by its covenants and obligations set forth herein.
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants and agreements contained herein, and intending to be legally bound hereby, the parties hereto agree as follows:
ARTICLE I
GENERAL
Section 1.1 Defined Terms. The following terms, as used in this Agreement, shall have the meanings set forth below.
(a) “Action” means any litigation, suit, claim, action, demand letter, or any judicial, criminal, administrative or regulatory proceeding, hearing, investigation, or formal or informal regulatory document production request proceeding.
(b) “Additional Shares” means Ordinary Shares, ADSs or other voting share capital of the Company with respect to which the Shareholder acquires Beneficial Ownership after the date of this Agreement (including any Ordinary Shares, ADSs or other voting share capital of the Company issued upon the exercise of any Company Options, Company Restricted Share Units or Company Convertible Notes or the conversion, exercise or exchange of any other securities into or for any Ordinary Shares or ADSs or otherwise).
(c) “ADS” means American depositary share, each representing one Ordinary Shares.
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(d) “Affiliates” of a specified person means a person who, directly or indirectly through one or more intermediaries, Controls, is Controlled by, or is under common Control with, such specified person. For the avoidance of doubt, an “Affiliate” of the Buyer Consortium shall include a person jointly Controlled, whether directly or indirectly through one or more intermediaries, by the Buyer Consortium as a whole.
(e) “Beneficial Ownership” by a person of any security includes ownership by any person who, directly or indirectly, through any contract, arrangement, understanding, relationship or otherwise (whether or not in writing), has or shares: (i) voting power which includes the power to vote, or to direct the voting of, such security; and/or (ii) investment power which includes the power to dispose, or to direct the disposition, of such security; and shall otherwise be interpreted in accordance with the term “beneficial ownership” as defined in Rule 13d-3 under the Exchange Act; provided that, without duplicative counting of the same securities by the same holder, securities Beneficially Owned by a person will include securities Beneficially Owned by any Affiliates of such person which are Controlled by such person, but no Beneficial Ownership of securities shall be attributed to securities Beneficially Owned by any other person(s) solely by virtue of the fact that such first person may be deemed to constitute a “group” within the meaning of Section 13(d) of the Exchange Act with such other person(s). The terms “Beneficially Own,” “Beneficially Owned” and “Beneficial Owner” shall have correlative meanings.
(f) “Business Day” means any day on which banks are not required or authorized to close in the City of New York, the Cayman Islands, the People’s Republic of China or Hong Kong.
(g) “Buyer Consortium” means, collectively, Morespark and Hammer Capital Opportunities Fund L.P., an exempted limited partnership organized under the laws of the Cayman Islands, acting through its general partner Hammer Capital Opportunities General Partner, an exempted company with limited liability organized under the laws of the Cayman Islands.
(h) “Company Options” means each outstanding share option issued by the Company pursuant to any Share Incentive Plan that entitles the holder thereof to purchase Ordinary Shares upon the vesting of such award.
(i) “Competing Proposal” shall have the meaning given to such term in the Merger Agreement.
(j) “Company Restricted Share Units” means each outstanding restricted share unit issued by the Company pursuant to any Share Incentive Plan that entitles the holder thereof to acquire Ordinary Shares upon the vesting of such award.
(k) “Company Convertible Notes” means the convertible notes issued by the Company pursuant to the convertible note purchase agreement by and among the Company, PA Grand Opportunity Limited and other investors named therein dated June 6, 2016, as amended on June 13, 2016.
(l) “Consortium Agreement” means the Consortium Agreement dated September 12, 2019 entered into between members of the Buyer Consortium.
(m) “Control” (including the terms “Controlled by” and “under common Control with”) means the possession, directly or indirectly, or as trustee or executor, of the power to direct or cause the direction of the management and policies of a person, whether through the ownership of voting securities or the possession of voting power, as trustee or executor, by contract or otherwise.
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(n) “Covered Shares” means all of the Existing Shares and any Additional Shares.
(o) “Exchange Act” means the Securities Exchange Act of 1934, as amended.
(p) “Existing Shares” means with respect to a Shareholder, the Ordinary Shares and ADSs Beneficially Owned by such Shareholder as of the date hereof, as set forth opposite such Shareholder’s name on Schedule A hereto.
(q) “Governmental Authority” means any nation or government, any agency, self-regulatory body, public, regulatory or taxing authority, instrumentality, department, commission, court, arbitrator, ministry, tribunal or board of any nation or government or political subdivision thereof, in each case, whether foreign or domestic and whether national, supranational, federal, provincial, state, regional, local or municipal.
(r) “Investor Rights Agreement” means the Amended and Restated Investor Rights Agreement by and among the Company, JD.com Global Investment Limited, Dongting Lake Investment Limited, Morespark and Baidu Holdings Limited dated June 17, 2016.
(s) “Law” means any statute, law, ordinance, code or any award, writ, injunction, determination, rule, regulation, judgment, decree or executive order.
(t) “Lien” means any security interest, pledge, hypothecation, mortgage, lien (including environmental and tax liens), violation, charge, lease, license, encumbrance, servient easement, adverse claim, reversion, reverter, preferential arrangement, restrictive covenant, condition or restriction of any kind, including any restriction on the use, voting, transfer, receipt of income or other exercise of any attributes of ownership.
(u) “Morespark” means Morespark Limited, a private company limited by shares incorporated under the laws of Hong Kong.
(v) “Ordinary Shares” means, ordinary shares, par value US$ 0.00004 per share of the Company.
(w) “Parent Shares” means the newly issued equity securities of Parent.
(x) “Permitted Transfer” means a Transfer of Covered Shares by any Shareholder to (i) an Affiliate of such Shareholder which is Controlled by such Shareholder, (ii) a member of such Shareholder’s immediate family or a trust for the benefit of such Shareholder’s or any member of such Shareholder’s immediate family or (iii) any heir, legatees, beneficiaries and/or devisees of such Shareholder, provided that in each case of (i) to (iii), such transferee agrees to execute, prior to or concurrently with such Transfer, a Joinder Agreement in the form attached hereto as Exhibit A.
(y) “person” means individual, partnership, corporation, association, joint stock company, trust, joint venture, limited liability company, organization, entity or Governmental Authority.
(z) “Representatives” means, with respect to any party, such party’s officers, directors, employees, accountants, consultants, financial and legal advisors, agents and other representatives.
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(aa) “Rollover Shares” means, with respect to a Shareholder, such portion of the Ordinary Shares (including Ordinary Shares represented by ADSs) Beneficially Owned by such Shareholder as of immediately prior to the Closing that are to be cancelled pursuant to the terms and conditions of this Agreement and the Merger Agreement, the number of which is set forth in the column entitled “Number of Rollover Shares” opposite such Shareholder’s name on Schedule A hereto.
(bb) “SEC” means the United States Securities and Exchange Commission.
(cc) “Share Incentive Plans” means, collectively, the Company’s 2006 Stock Incentive Plan, the Company’s 2010 Stock Incentive Plan, the Company’s 2012 Share Incentive Plan and the Company’s 2016 Share Incentive Plan, and “Share Incentive Plan” means any one of the foregoing plans.
(dd) “Subsidiary” means, with respect to any person, any legal entity (i) of which such person or any other Subsidiary of such person is a general or managing partner, (ii) the outstanding voting securities or interests of which, having by their terms ordinary voting power to elect a majority of the board of directors or other body performing similar functions with respect to such corporation or other organization, are directly or indirectly owned or controlled by such person or by any one or more of its Subsidiaries or (iii) of which such person otherwise Controls, whether through contractual arrangements or otherwise.
(ee) “Third Party” means any person or “group” (as defined under Section 13(d) of the Exchange Act) of persons, other than Parent or any of its Affiliates or Representatives.
(ff) “Transfer” means, directly or indirectly, to sell, transfer, offer, exchange, assign, pledge, encumber, hypothecate or otherwise dispose of (by merger, by tendering into any tender or exchange offer, by testamentary disposition, by operation of Law or otherwise), either voluntarily or involuntarily, or to enter into any contract, option or other agreement with respect to any sale, transfer, offer, exchange, assignment, pledge, encumbrance, hypothecation or other disposition.
ARTICLE II
VOTING AND EXCLUSIVITY
Section 2.1 Agreement to Vote; Exclusivity.
(a) Each Shareholder hereby irrevocably and unconditionally agrees that at any annual or extraordinary general meeting of the shareholders of the Company and at any other meeting of the shareholders of the Company, however called, including any adjournment, recess or postponement thereof, in connection with any written consent of the shareholders of the Company and in any other circumstance upon which a vote, consent or other approval of all or some of the shareholders of the Company is sought, it shall, and shall cause any holder of record of its Covered Shares to, in each case to the extent that the Covered Shares are entitled to vote thereon or consent thereto:
(i) appear at each such meeting or otherwise cause all of its Covered Shares to be counted as present thereat in accordance with procedures applicable to such meeting so as to ensure such Shareholder is duly counted for purposes of calculating a quorum and for purposes of recording the result of any applicable vote or consent and respond to each request by the Company for written consent, if any; and
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(ii) vote, or cause to be voted, whether on a show of hands or a poll and whether in person or by proxy, or deliver, or cause to be delivered, a written consent covering, all of its Covered Shares (A) in favor of the approval, adoption and authorization of the Merger Agreement and the approval of the Merger and any other transactions contemplated by the Merger Agreement, (B) in favor of any other matters required to consummate the Merger and any other transactions contemplated by the Merger Agreement, (C) against any Competing Proposal or any other transaction, proposal, agreement or action made in opposition to the Merger or in competition or inconsistent with the Merger, and (D) against any other action, agreement or transaction that is intended to facilitate a Competing Proposal or is intended to or could prevent, impede, or, in any material respect, interfere with, delay or adversely affect the Merger or any other transactions contemplated by the Merger Agreement or the performance by such Shareholder of its obligations under this Agreement.
(b) Each Shareholder further irrevocably and unconditionally agrees that it shall not, shall cause its Affiliates not to and shall cause the Representatives of it and its Affiliates (subject to, in the case of a Representative who is a director of the Company or any of its Subsidiaries and solely in such Representative’s capacity as a director, his or her fiduciary duties) not to, directly or indirectly, (i) make a Competing Proposal or join with, or invite, any other person to be involved in the making of a Competing Proposal, (ii) provide any information to any Third Party with a view to such Third Party or any other person pursuing or considering to pursue a Competing Proposal, (iii) finance or offer to finance any Competing Proposal, including by offering any equity or debt financing, or contribution of any Covered Shares or provision of a voting agreement, in support of any Competing Proposal, or (iv) solicit, encourage or facilitate, or induce or enter into any negotiation, discussion, agreement or understanding (whether or not in writing) with any person (other than members of the Buyer Consortium and their Affiliates) regarding, a Competing Proposal or any of the matters described in Section 2.1(a) or this Section 2.1(b).
(c) Each Shareholder shall, and shall cause its Affiliates and the Representatives of it and its Affiliates (subject to, in the case of a Representative who is a director of the Company or any of its Subsidiaries and solely in such Representative’s capacity as a director, his or her fiduciary duties) to, immediately cease and cause to be terminated any discussions or negotiations with any person that may have been conducted heretofore with respect to a Competing Proposal. From and after the date hereof, each Shareholder shall promptly advise Parent of any approach by any person other than the Buyer Consortium to such Shareholder in connection with a Competing Proposal.
(d) Each Shareholder shall retain at all times the right to vote or consent with respect to such Shareholder’s Covered Shares in such Shareholder’s sole discretion and without any other limitation on those matters, other than those limitations contained in Section 2.1(a).
(e) The obligations of each Shareholder set forth in this Section 2.1 are irrevocable until the termination of this Agreement in accordance with its terms.
Section 2.2 Waiver of Dissenter Rights. Each Shareholder hereby irrevocably and unconditionally waives, and agrees to cause to be waived and to prevent the exercise of, any dissenters’ rights, rights of appraisal and any similar rights relating to the Merger and any other transactions contemplated by the Merger Agreement that such Shareholder or any other person may have by virtue of, or with respect to, any of the Covered Shares.
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ARTICLE III
ROLLOVER SHARES
Section 3.1 Cancellation of Rollover Shares. Subject to the terms and conditions set forth herein, (a) each Shareholder agrees that its Rollover Shares shall be cancelled at the closing of the Merger (the “Closing”) for no consideration from the Company; and (b) other than its Rollover Shares, all the remaining Covered Shares Beneficially Owned by such Shareholder, if any, shall (i) if such Covered Shares are Ordinary Shares issued and outstanding as of immediately prior to the Closing, be cancelled and cease to exist in exchange for the cash consideration provided under the Merger Agreement, or (ii) if such Covered Shares are represented by other securities, be treated as set forth in the Merger Agreement. Each Shareholder shall take all actions necessary to cause its Covered Shares to be treated as set forth herein.
Section 3.2 Subscription of Parent Shares. Immediately prior to the Closing, in consideration for the cancellation of the Rollover Shares held by a Shareholder in accordance with Section 3.1, Parent shall issue to such Shareholder (or, if designated by such Shareholder in writing, an Affiliate of such Shareholder), and such Shareholder or its Affiliate (as applicable) shall subscribe for immediately prior to the Closing, such number of Parent Shares which shall be calculated proportionally based on (a) the deemed value of such Shareholder’s Rollover Shares based on the per share cash consideration offered under the Merger Agreement to shareholders of the Company that are not Affiliated with any member of the Buyer Consortium, which value shall be deemed to be contributed by such Shareholder to Parent upon the cancellation of such Rollover Shares, and (b) the aggregate value contributed or deemed contributed by all shareholders of Parent to Parent (whether in the form of cash, rollover shares or other consideration), at a consideration per share equal to its par value. Each Shareholder hereby acknowledges and agrees that (i) delivery of such Parent Shares shall constitute complete satisfaction of all obligations towards or sums due to such Shareholder by Parent and any of its Affiliates in respect of the Rollover Shares held by such Shareholder and cancelled at the Closing as contemplated by Section 3.1 above, and (ii) such Shareholder shall have no right to any consideration as provided in the Merger Agreement in respect of the Rollover Shares held by such Shareholder.
Section 3.3 Rollover Closing. Subject to the satisfaction in full (or waiver, if permissible) of all of the conditions set forth in the Merger Agreement (other than conditions that by their nature are to be satisfied or waived, as applicable, at the Closing), the closing of the subscription by and issuance to a Shareholder or its Affiliate (as applicable) of Parent Shares contemplated hereby shall take place immediately prior to the Closing or at such other time as agreed among such Shareholder and Parent (the “Rollover Closing”).
Section 3.4 Deposit of Rollover Shares. No later than five (5) Business Days prior to the Closing, each Shareholder and any Representative of such Shareholder holding certificates evidencing any Rollover Shares shall deliver or cause to be delivered to Parent all certificates representing such Rollover Shares in such person’s possession, for disposition in accordance with the terms of this Agreement; such certificates and documents shall be held by Parent or any agent authorized by Parent until the Closing. To the extent that any Rollover Shares of a Shareholder are held in street name or otherwise represented by ADSs, such Shareholder shall execute such instruments and take such other actions, in each case, as are reasonably requested by Parent to reflect or give effect to the cancellation of such Rollover Shares in accordance with this Agreement.
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES
Section 4.1 Representations and Warranties of the Shareholders. Each Shareholder represents and warrants to Parent, severally and not jointly, and solely as to itself and its Covered Shares, as of the date of this Agreement and as of Closing:
(a) Capacity; Authorization; Validity of Agreement; Necessary Action. Such Shareholder has the legal capacity and all requisite power and authority to execute and deliver this Agreement and perform such Shareholder’s obligations hereunder and to consummate the transactions contemplated by this Agreement (excluding, for the avoidance of doubt, any obligations and transactions under or contemplated by the Merger Agreement that are not set forth in this Agreement). This Agreement has been duly authorized (if applicable), executed and delivered by such Shareholder and, assuming this Agreement constitutes a valid and binding obligation of Parent, constitutes a legal, valid and binding agreement of such Shareholder enforceable against such Shareholder in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar Laws of general applicability relating to or affecting creditors’ rights and to general equity principles (regardless of whether considered in a proceeding in equity or at law) (the “Bankruptcy and Equity Exception”).
(b) Ownership. Except as otherwise indicated on Schedule A hereto, such Shareholder is the sole Beneficial Owner of and has good and valid title to the Existing Shares set forth opposite its name in Schedule A hereto, free and clear of any Liens, other than any Liens pursuant to this Agreement, or arising under the Investor Rights Agreement or the memorandum or articles of association of the Company and transfer restrictions imposed by generally applicable securities Laws. As of the date of this Agreement, subject to the last sentence of this Section 4.1(b), such Shareholder’s Existing Shares listed in Schedule A hereto constitute all of the Ordinary Shares, ADSs, Company Options, Company Restricted Share Units and Company Convertible Notes (and any other options or other securities convertible, exercisable or exchangeable into or for any Ordinary Shares or ADSs) Beneficially Owned or owned of record by such Shareholder. Except as otherwise indicated on Schedule A hereto, such Shareholder is and will be the sole record holder and Beneficial Owner of the Covered Shares (unless such Covered Shares are Transferred via a Permitted Transfer) and has (i) the sole voting power, (ii) the sole power of disposition and (iii) the sole power to agree to all of the matters set forth in this Agreement with respect to the Covered Shares. Such Shareholder has not granted any proxy inconsistent with this Agreement that is still effective or entered into any voting or similar agreement, in each case with respect to any of such Shareholder’s Existing Shares and with respect to all of the Covered Shares Beneficially Owned by the Shareholder at all times through the consummation of the Merger. As of the date of this Agreement, such Shareholder owns the Company Options, Company Restricted Share Units and Company Convertible Notes set forth opposite such Shareholder’s name in Schedule A hereto.
(c) Non-Contravention; No Conflicts. Except as would not, individually or in the aggregate, be expected to be adverse to the ability of such Shareholder to timely perform any of its obligations hereunder in any material respect, (i) other than compliance with its obligations under Section 13(d) or any other applicable requirements under the Exchange Act, no filing or notice by such Shareholder with or to any Governmental Authority, and no authorization, consent, permit or approval from any Governmental Authority or any other person is necessary for the execution and delivery of this Agreement by such Shareholder or the performance by such Shareholder of such Shareholder’s obligations herein, (ii) the execution and delivery of this Agreement by such Shareholder do not, and the performance by such Shareholder of such Shareholder’s obligations
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under this Agreement and the consummation by such Shareholder of the transactions contemplated by this Agreement (excluding, for the avoidance of doubt, any obligations and transactions under or contemplated by the Merger Agreement that are not set forth in this Agreement), will not (1) conflict with, or result in any violation or breach of, or constitute a default (with or without notice or lapse of time, or both) under, or give rise to a right of, or result in, termination, cancellation or acceleration of any obligation or loss of any material benefit under, or to increased, additional, accelerated or guaranteed rights or entitlements of any person under, or result in the creation of any Lien upon such Shareholder’s assets or properties under, any provision of (A) any contract, agreement or other instrument to which the Shareholder is party or by which any of such Shareholder’s assets or properties is bound, or (B) any judgment, order, injunction, decree or Law applicable to such Shareholder or such Shareholder’s assets or properties or (2) other than compliance with its obligations under Section 13(d) or any other applicable requirements under the Exchange Act, require any consent of, registration, declaration or filing with, notice to or permit from any Governmental Authority.
(d) No Inconsistent Agreements. Except for this Agreement, such Shareholder has not: (i) other than the Investor Rights Agreement and, in the case of Morespark, the Consortium Agreement, entered into any contract, agreement or other instrument, voting agreement, voting trust or similar agreement with respect to any of the Covered Shares, (ii) granted any irrevocable proxy, consent or power of attorney with respect to any of the Covered Shares or (iii) taken any action that would constitute a breach hereof, make any representation or warranty of such Shareholder set forth in this Article IV untrue or incorrect in any material respect or have the effect of preventing or disabling such Shareholder from performing in any material respect any of its obligations under this Agreement. Such Shareholder understands and acknowledges that Parent and its Affiliates have expended, and are continuing to expend, time and resources in connection with the Merger in reliance upon such Shareholder’s execution and delivery of this Agreement and the representations, warranties, covenants and other agreements of such Shareholder contained herein.
(e) No Finder’s Fees. No broker, investment banker, financial advisor, finder, agent or other person is entitled to any broker’s, finder’s, financial adviser’s or other similar fee or commission in connection with this Agreement based upon arrangements made by or on behalf of the Shareholder in his or her capacity as such.(f) No Action. There are no proceedings, claims, actions, suits or governmental or regulatory investigations pending or, to the knowledge of such Shareholder, threatened against such Shareholder that could impair the ability of such Shareholder to timely perform its obligations hereunder or to consummate the transactions contemplated hereby on a timely basis.
(g) Opportunity of Inquiry. Such Shareholder has been afforded the opportunity to ask such questions as it has deemed necessary of, and to receive answers from, Representatives of Parent and its Affiliates concerning the terms and conditions of the transactions contemplated hereby and the merits and risks of owning Parent Shares and such Shareholder acknowledges that it has been advised to discuss with its own counsel the meaning and legal consequences of such Shareholder’s representations and warranties in this Agreement and the transactions contemplated hereby.
Section 4.2 Representations and Warranties of Parent. Parent represents and warrants to each Shareholder, as of the date of this Agreement and as of Closing: It has all corporate power and authority to execute, deliver and perform this Agreement. The execution and delivery by it of this Agreement, the performance by it of its obligations hereunder and the consummation by it of the transactions contemplated by this Agreement (excluding, for the avoidance of doubt, any obligations and transactions under or
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contemplated by the Merger Agreement, including the Merger) have been duly and validly authorized by it, and no other actions or proceedings on its part are necessary to authorize the execution and delivery by it of this Agreement, the performance by it of its obligations hereunder or the consummation by it of the transactions contemplated by this Agreement (excluding, for the avoidance of doubt, any obligations and transactions under or contemplated by the Merger Agreement, including the Merger). This Agreement has been duly executed and delivered by it and, assuming this Agreement constitutes a valid and binding obligation of each Shareholder, constitutes a legal, valid and binding agreement of it enforceable against it in accordance with its terms, subject to the Bankruptcy and Equity Exception. Except as would not, individually or in the aggregate, be expected to be adverse to its ability to timely perform any of its obligations hereunder in any material respect, the execution and delivery of this Agreement by it do not, and the performance by it of its obligations under this Agreement and the consummation by it of the transactions contemplated by this Agreement (excluding, for the avoidance of doubt, any obligations and transactions under or contemplated by the Merger Agreement, including the Merger), will not (a) conflict with, or result in any violation or breach of, or constitute a default (with or without notice or lapse of time, or both) under, or give rise to a right of, or result in, termination, cancellation or acceleration of any obligation or loss of any material benefit under, or to increased, additional, accelerated or guaranteed rights or entitlements of any person under, or result in the creation of any Lien upon its assets or properties under, any provision of (i) any contract, agreement or other instrument to which it is party or by which any of its assets or properties is bound, or (ii) any judgment, order, injunction, decree or Law applicable to it or its assets or properties, or (b) other than compliance with its obligations under Section 13(d) or any other applicable requirements under the Exchange Act, require any consent of, registration, declaration or filing with, notice to or permit from any Governmental Authority or other third person.
ARTICLE V
OTHER COVENANTS
Section 5.1 Prohibition on Transfer.
(a) Subject to the terms of this Agreement, each Shareholder covenants and agrees not to Transfer any of its Covered Shares, or any voting right or power (including whether such right or power is granted by proxy or otherwise) or economic interest therein, unless such Transfer (i) is a Permitted Transfer, or (ii) has been previously approved in writing by Parent. Any attempted Transfer of shares or any interest therein, in violation of this Section 5.1 shall be null and void.
(b) With respect to each Shareholder, this Agreement and the obligations hereunder shall attach to the Covered Shares and shall be binding upon any person to which legal or Beneficial Ownership shall pass, whether by operation of Law or otherwise, including, the Shareholder’s successors or assigns. No Shareholder may request that the Company or the Company’s depositary bank register the Transfer of (book-entry or otherwise) any or all of the Covered Shares (whether represented by a certificate or uncertificated), unless such Transfer is made in compliance with this Agreement. Notwithstanding any Transfer of Covered Shares, the transferor shall remain liable for the performance of all of the obligations of the Shareholder under this Agreement.
Section 5.2 Additional Shares. Each Shareholder covenants and agrees to notify Parent in writing of the number of Additional Shares Beneficial Ownership in which is acquired by each Shareholder after the date hereof as soon as practicable, but in no event later than five (5) Business Days, after such acquisition. Any such Additional Shares shall automatically become subject to the terms of this Agreement and shall constitute Covered Shares for all purposes of this Agreement.
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Section 5.3 Share Dividends, etc. In the event of a reclassification, recapitalization, reorganization, share split (including a reverse share split) or combination, exchange or readjustment of shares, change in ratio of ADSs to Ordinary Shares, or other similar transaction, or if any share dividend, subdivision or distribution (including any dividend or distribution of securities convertible into or exchangeable for Ordinary Shares) is declared, in each case affecting the Covered Shares, the term “Covered Shares” shall be deemed to refer to and include such shares as well as all such share dividends and distributions and any securities of the Company into which or for which any or all of such shares may be changed or exchanged or which are received in such transaction.
Section 5.4 No Inconsistent Agreements. Without the prior written consent of Parent, no Shareholder shall (a) enter into any contract or other instrument, option or other agreement (except this Agreement) with respect to, or consent to, a Transfer of, any of the Covered Shares, Beneficial Ownership thereof or any other interest therein, (b) create or permit to exist any Lien that could prevent such Shareholder from voting the Covered Shares in accordance with this Agreement or from complying in all material respects with the other obligations under this Agreement, other than any restrictions imposed by applicable Law on such Covered Shares, (c) enter into any voting or similar agreement (except this Agreement) with respect to the Covered Shares or grant any proxy, consent or power of attorney with respect to any of the Covered Shares (other than as contemplated by Section 2.1(a) hereof) or (d) take any action, directly or indirectly, that would or would reasonably be expected to (i) result in a breach hereof, (ii) make any representation or warranty of the Shareholder set forth in Article IV untrue or incorrect in any material respect or (iii) prevent, impede or, in any material respect, interfere with, delay or adversely affect the performance by such Shareholder of its obligations under, or compliance by such Shareholder with the provisions of, this Agreement.
Section 5.5 Public Disclosure. None of the parties hereto shall issue any press release or make any other public statement with respect to the transactions contemplated by this Agreement without the prior written consent of each other party hereto, except as such release or statement may be required by applicable Law or the rules and regulations of any national securities exchange or Governmental Authority of competent jurisdiction. Notwithstanding the above, each Shareholder hereby agrees to permit the Company to publish and disclose in the proxy statement relating to the authorization and approval of the Merger (including any amendment or supplement thereto and all documents filed with the SEC in accordance therewith) such Shareholder’s identity and Beneficial Ownership of its Covered Shares and the nature of such Shareholder’s commitments, arrangements and/or understandings contemplated by this Agreement.
ARTICLE VI
MISCELLANEOUS
Section 6.1 Interpretation. Unless the express context otherwise requires:
(a) The words “hereof,” “herein” and “herewith” and words of similar import shall, unless otherwise stated, be construed to refer to this Agreement as a whole and not to any particular provision of this Agreement, and article, section, paragraph, exhibit and schedule references are to the articles, sections, paragraphs, exhibits and schedules of this Agreement unless otherwise specified. Whenever the words “include,” “includes” or “including” are used in this Agreement, they shall be deemed to be followed by the words “without limitation.” All terms defined in this Agreement shall have the defined meanings contained herein when used in any certificate or other document made or delivered pursuant hereto unless otherwise defined therein. The definitions contained in this Agreement are applicable to the singular as well as the plural forms of such terms and to the masculine as well as to the feminine and neuter genders of such terms. Any agreement, instrument or statute defined or referred to herein or in any agreement or instrument that is referred to herein means such agreement, instrument or statute as from time to time, amended, qualified or supplemented, including (in the case of agreements and instruments) by waiver or consent and (in the case of statutes) by succession of comparable successor statutes and all attachments thereto and instruments incorporated therein. References to a person are also to its permitted successors and assigns.
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(b) The captions, headings and arrangements used in this Agreement are for convenience only and do not in any way affect, limit, amplify or modify the terms and provisions hereof.
(c) With regard to all dates and time periods set forth or referred to in this Agreement, time is of the essence.
Section 6.2 Termination. As between Parent, on the one hand, and a Shareholder, on the other hand, this Agreement and all obligations hereunder (other than as set forth in the following sentence) shall automatically terminate on the earliest to occur of (i) the consummation of the Merger, (ii) the written agreement of Parent, on the one hand, and such Shareholder, on the other hand and (iii) the termination of the Merger Agreement in accordance with its terms other than such termination in accordance with Section 9.1(e) of the Merger Agreement. Upon termination of this Agreement, the rights and obligations of Parent, on the one hand, and such Shareholder, on the other hand, will terminate and become of no further force or effect without further action by either of them except for the provisions of Article VI, which will survive such termination indefinitely. For the avoidance of doubt, the termination of this Agreement shall not relieve any party of liability for any breach prior to such termination.
Section 6.3 Governing Law and Venue.
(a) This Agreement shall be interpreted, construed and governed by and in accordance with the Laws of the State of New York without regard to the conflicts of law principles thereof. Notwithstanding the foregoing, the following matters arising out of or relating to this Agreement shall be construed, performed and enforced in accordance with the Laws of the Cayman Islands in respect of which the parties hereto hereby irrevocably submit to the non-exclusive jurisdiction of the courts of the Cayman Islands: the Merger, the rights provided in Section 238 of the Companies Law (2018 Revision) of the Cayman Islands, the fiduciary or other duties of the board of directors of the Company and the internal corporate affairs of the Company.
(b) Subject to the exception for jurisdiction of the courts of the Cayman Islands in Section 6.3(a), any Actions arising out of or in any way relating to this Agreement shall be submitted to the Hong Kong International Arbitration Centre (“HKIAC”) and resolved in accordance with the Arbitration Rules of HKIAC in force at the relevant time and as may be amended by this Section 6.3 (the “Rules”). The place of arbitration shall be Hong Kong. The official language of the arbitration shall be English and the 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 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.
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(c) Notwithstanding the foregoing, the parties hereby consent to and agree that in addition to any recourse to arbitration as set out in Section 6.3(b), any party may, to the extent permitted under the rules and procedures of the HKIAC, seek an interim injunction or other form of relief from the HKIAC as provided for in its Rules. Such application shall also be governed by, and construed in accordance with, the laws of the State of New York.
Section 6.4 Notices. All notices, requests, claims, demands and other communications hereunder shall be in writing and shall be given (and shall be deemed to have been duly given upon receipt, provided that if such notice is not received during normal business hours, then on the next Business Day) by delivery in person, by electronic mail with a copy sent by another means specified in this Agreement, by telecopy or by registered or certified mail (postage prepaid, return receipt requested) to any party hereto at the following addresses or at such other address shall be specified by such party hereto in a notice given in accordance with this Section 5.4:
if to Parent, to:
c/o Tencent Holdings Limited
Level 29, Three Pacific Place
1 Queen’s Road East
Wanchai, Hong Kong
Attention: Compliance and Transactions Department
Email: legalnotice@tencent.com
with copies to:
Tencent Binhai Towers, No.33 Haitian 2nd Road
Nanshan District, Shenzhen
P.R. China 518054
Attention: Mergers and Acquisitions Department
Email: PD_Support@tencent.com
Latham & Watkins LLP
18th Floor, One Exchange Square
8 Connaught Place, Central
Hong Kong
Attention: Frank Sun, Benjamin Su and Terris Tang
Email: Frank.Sun@lw.com, Benjamin.Su@lw.com, Terris.Tang@lw.com
if to a Shareholder, at the address set forth opposite such Shareholder’s name on Schedule A hereto.
Section 6.5 Amendment. This Agreement may not be amended, modified or supplemented except by an instrument in writing signed by Parent and each Shareholder.
Section 6.6 Extension; Waiver. Parent, on the one hand, and a Shareholder, on the other hand, may (a) extend the time for the performance of any of the obligations or other acts of the other party, (b) waive any inaccuracies in the representations and warranties of the other party contained in this Agreement or in any document delivered under this Agreement or (c) waive compliance with any of the covenants or conditions contained in this Agreement. Any agreement on the part of a party to any extension or waiver shall be valid only if specifically set forth in an instrument in writing signed by such party. The failure of any party to assert any of its rights under this Agreement or otherwise shall not constitute a waiver of such rights, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege under this Agreement.
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Section 6.7 Entire Agreement. This Agreement constitutes the sole and entire agreement of each Shareholder or any of its Affiliates, on the one hand, and Parent or any of its Affiliates, on the other hand, with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to such subject matter.
Section 6.8 No Third-Party Beneficiaries. This Agreement is for the sole benefit of, shall be binding upon, and may be enforced solely by Parent and each Shareholder, and nothing in this Agreement, express or implied, is intended to or shall confer upon any person (other than Parent and each Shareholder) any legal or equitable right, benefit or remedy of any nature whatsoever.
Section 6.9 Severability. The provisions of this Agreement shall be deemed severable and the invalidity or unenforceability of any provision shall not affect the validity or enforceability of the other provisions hereof. If any provision of this Agreement, or the application thereof to any party or any circumstance, is invalid or unenforceable, (a) a suitable and equitable provision shall be substituted therefor in order to carry out, so far as may be valid and enforceable, the intent and purpose of such invalid or unenforceable provision and (b) the remainder of this Agreement and the application of such provision to other persons or circumstances shall not be affected by such invalidity or unenforceability, nor shall such invalidity or unenforceability affect the validity or enforceability of such provision, or the application thereof, in any other jurisdiction.
Section 6.10 Rules of Construction. The parties hereto have participated jointly in the negotiation and drafting of this Agreement. In the event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the parties hereto and no presumption or burden of proof shall arise favoring or disfavoring any party hereto by virtue of the authorship of any provisions of this Agreement.
Section 6.11 Assignment. Neither this Agreement nor any of the rights, interests or obligations hereunder shall be assigned by operation of Law (including, but not limited to, by merger or consolidation) or otherwise by any of the parties without the prior written consent of the other parties, provided that Parent may assign its rights (but not obligations) to any of its Affiliates without the prior written consent of the other parties. Any assignment in violation of the preceding sentence shall be void. Subject to the preceding sentence, this Agreement will be binding upon, inure to the benefit of, and be enforceable by, the parties hereto and their respective successors and assigns.
Section 6.12 Specific Performance. The parties hereto agree that the obligations imposed on them in this Agreement are special, unique and of an extraordinary character and irreparable damage would occur if any of the provisions of this Agreement were not performed in accordance with their specific terms or were otherwise breached. Accordingly each party to this Agreement (a) shall be entitled to an injunction or injunctions, specific performance and other equitable relief to prevent breaches or threatened breaches of this Agreement and to enforce specifically the terms and provisions of this Agreement in the forum described in Section 6.3, without proof of damages or otherwise, this being in addition to any other remedy at law or in equity, and (b) hereby waives any requirement for the posting of any bond or similar collateral in connection therewith. Each party hereto agrees that it will not oppose the granting of an injunction, specific performance and other equitable relief on the basis that (i) any other party has an adequate remedy at law or (ii) an award of specific performance is not an appropriate remedy for any reason at law or equity.
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Section 6.13 Shareholder Capacity. Notwithstanding anything contained in this Agreement to the contrary, each Shareholder is signing this Agreement solely and only in such Shareholder’s capacity as Beneficial Owner of its Covered Shares and, accordingly, (i) the representations, warranties, covenants and agreements made herein by a Shareholder are made solely with respect to such Shareholder and its Covered Shares, (ii) nothing herein shall limit or affect any actions taken by such Shareholder in his capacity as a director or officer of the Company (or a Subsidiary of the Company), including participating in his capacity as a director or officer of the Company in any discussions or negotiations with the Buyer Consortium, and (iii) no action taken in good faith by such Shareholder in his capacity as a director or officer of the Company (or a Subsidiary of the Company) shall be deemed to constitute a breach of this Agreement. Nothing contained herein, and no action taken by such Shareholder pursuant hereto, shall be deemed to constitute the parties as a partnership, an association, a joint venture or any other kind of entity, or create a presumption that the parties hereto are in any way acting in concert or as a group with respect to the obligations or the transactions contemplated by this Agreement.
Section 6.14 No Ownership Interest. Nothing contained in this Agreement shall be deemed to vest in Parent any direct or indirect ownership or incidence of ownership of or with respect to any Covered Shares. All rights, ownership and economic benefits of and relating to the Covered Shares shall remain vested in and belong to the relevant Shareholder, and Parent shall have no authority to direct such Shareholder in the voting or disposition of any of the Covered Shares, in each case, except to the extent expressly provided herein.
Section 6.15 Costs and Expenses. All costs and expenses (including all fees and disbursements of counsel, accountants, investment bankers, experts and consultants to a party) incurred in connection with this Agreement shall be paid by the party incurring such costs and expenses.
Section 6.16 Counterparts. This Agreement may be executed and delivered (including by electronic or facsimile transmission) in one or more counterparts, and by the different parties hereto in separate counterparts, each of which when executed shall be deemed to be an original but all of which taken together shall constitute one and the same agreement.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, the undersigned have caused this Support Agreement to be executed as of the date first written above.
| Yiche Holding Limited | ||
| By: | /s/ Leiwen Yao | |
| Name: | Leiwen Yao | |
| Title: | Director | |
IN WITNESS WHEREOF, the undersigned have caused this Support Agreement to be executed as of the date first written above.
| Morespark Limited | ||
| By: | /s/ Ma Huateng | |
| Name: | Ma Huateng | |
| Title: | Authorized Signatory | |
| Dongting Lake Investment Limited | ||
| By: | /s/ Ma Huateng | |
| Name: | Ma Huateng | |
| Title: | Authorized Signatory | |
| THL E Limited | ||
| By: | /s/ Ma Huateng | |
| Name: | Ma Huateng | |
| Title: | Authorized Signatory | |
Exhibit A
JOINDER AGREEMENT
This Joinder Agreement (“Joinder Agreement”) is executed by the undersigned (the “Transferee”) pursuant to the terms of that certain Support Agreement dated as of June 12, 2020 (the “Agreement”) by and among Yiche Holding Limited and the Shareholders named therein. Capitalized terms used but not defined herein shall have the respective meanings ascribed to such terms in the Agreement.
By the execution of this Joinder Agreement, the Transferee agrees as follows:
(a) Acknowledgment. Transferee acknowledges that Transferee is acquiring certain Covered Shares subject to the terms and conditions of the Agreement.
(b) Agreement. Transferee (i) agrees that the Covered Shares acquired by Transferee shall be bound by and subject to the terms of the Agreement, (ii) hereby adopts the Agreement with the same force and effect as if Transferee were originally a party thereto and (iii) agrees to be subject to the obligations and restrictions of the Shareholder thereunder.
(c) Notice. Any notice required or permitted by the Agreement shall be given to Transferee at the address listed beside Transferee’s signature below.
| TRANSFEREE |
| [●] |
| By: |
| Name: |
| Title: |
| Accepted and Agreed: |
| Yiche Holding Limited |
| By: |
| Name: |
| Title: |
| Morespark Limited |
| By: |
| Name: |
| Title: |
| Dongting Lake Investment Limited |
| By: |
| Name: |
| Title: |
| THL E Limited |
| By: |
| Name: |
| Title: |
Schedule A
| Shareholder |
Address |
Existing Shares |
Other |
Number of Rollover Shares | ||||
| Morespark Limited, a private company limited by shares incorporated in Hong Kong | c/o Tencent Holdings Limited Level 29, Three Pacific Place 1 Queen’s Road East Wanchai, Hong Kong Attention: Compliance and Transactions Department Email: legalnotice@tencent.com
with a copy to: Tencent Binhai Towers, No.33 Haitian 2nd Road Nanshan District, Shenzhen P.R. China 518054 Attention: Mergers and Acquisitions Department Email: PD_Support@tencent.com |
Ordinary Shares: 2,471,577 ADSs: None |
Company Options: None Company Restricted Share Units: None Company Convertible Notes: None |
2,471,577 | ||||
| Dongting Lake Investment Limited, a limited liability company incorporated in the British Virgin Islands | c/o Tencent Holdings Limited Level 29, Three Pacific Place 1 Queen’s Road East Wanchai, Hong Kong Attention: Compliance and Transactions Department Email: legalnotice@tencent.com
with a copy to: Tencent Binhai Towers, No.33 Haitian 2nd Road Nanshan District, Shenzhen P.R. China 518054 Attention: Mergers and Acquisitions Department Email: PD_Support@tencent.com |
Ordinary Shares: 2,046,106 ADSs: None |
Company Options: None Company Restricted Share Units: None Company Convertible Notes: None |
2,046,106 | ||||
| THL E Limited, a limited liability company incorporated in the British Virgin Islands | c/o Tencent Holdings Limited Level 29, Three Pacific Place 1 Queen’s Road East Wanchai, Hong Kong Attention: Compliance and Transactions Department Email: legalnotice@tencent.com
with a copy to: Tencent Binhai Towers, No.33 Haitian 2nd Road Nanshan District, Shenzhen P.R. China 518054 Attention: Mergers and Acquisitions Department Email: PD_Support@tencent.com |
Ordinary Shares: None ADSs: 965,000 |
Company Options: None Company Restricted Share Units: None Company Convertible Notes: None |
965,000 | ||||
Exhibit 13
Execution Version
INTERIM INVESTORS AGREEMENT
This INTERIM INVESTORS AGREEMENT (the “Agreement”) is made as of June 12, 2020, by and among Morespark Limited, a private company limited by shares incorporated under the law of Hong Kong (“Tencent”), Hammer Capital Opportunities Fund L.P., an exempted limited partnership organized under the laws of the Cayman Islands, acting through its general partner Hammer Capital Opportunities General Partner, an exempted company with limited liability organized under the laws of the Cayman Islands (“Hammer”, together with Tencent, the “Principal Investors” and, each, a “Principal Investor”), Mr. Bin Li (李斌) (the “Founder”), each person as set forth in Exhibit A to this Agreement other than Hammer (each, a “Rollover Investor” and, collectively, the “Rollover Investors”), Yiche Holding Limited, an exempted company incorporated with limited liability under the laws of the Cayman Islands (“Parent”) and Yiche Mergersub Limited, an exempted company incorporated with limited liability under the laws of the Cayman Islands and wholly-owned subsidiary of Parent (“Merger Sub”). The Principal Investors and the Rollover Investors are collectively referred to as the “Investors” and each, an “Investor”, and together with the Founder, Parent and Merger Sub, the “Parties” and each, a “Party”. Capitalized terms used herein but not defined shall have the meanings given to them in the Merger Agreement (as defined below).
RECITALS
WHEREAS, on the date hereof, Bitauto Holdings Limited, an exempted company incorporated with limited liability under the laws of the Cayman Islands (the “Company”), Parent and Merger Sub executed an Agreement and Plan of Merger (the “Merger Agreement”) pursuant to which Merger Sub will be merged with and into the Company (the “Merger”) with the Company surviving the Merger and becoming a wholly-owned subsidiary of Parent;
WHEREAS, on the date hereof, each of the Principal Investors or their respective Affiliates executed a letter agreement in favor of Parent (each, an “Equity Commitment Letter” and collectively, the “Equity Commitment Letters”), pursuant to which each such Principal Investor or its Affiliates agreed, subject to the terms and conditions set forth therein, to make an equity investment, in the form of cash (each, an “Equity Commitment”, and collectively, the “Equity Commitments”), in Parent immediately prior to the Closing in connection with the Merger;
WHEREAS, on or around the date hereof, Morespark Limited, Dongting Lake Investment Limited and THL E Limited (collectively, the “Tencent Shareholders”) executed a support agreement with the Parent (as may be amended, the “Tencent Support Agreement”), and on September 12, 2019, each of JD.com Global Investment Limited (“JD”) and the Founder executed a support agreement in favor of the Principal Investors (each, an “Original Support Agreement”). The parties to the Original Support Agreements intend to amend and supplement certain terms thereof through this Agreement. The Original Support Agreements, as amended and supplemented by this Agreement and as otherwise amended from time to time, and the Tencent Support Agreement are collectively referred to as the “Support Agreements,” and each, a “Support Agreement,” pursuant to which each Rollover Investor agreed to (a) cancel the Rollover Shares held by such Rollover Investor for no consideration, (b) subscribe for the Parent Shares immediately prior to the Closing and (c) vote in favor of the Merger, in each case on terms and conditions set out in the applicable Support Agreement;
WHEREAS, on the date hereof, each of the Principal Investors or their respective Affiliates executed a limited guarantee in favor of the Company (each, a “Limited Guarantee” and collectively, the “Limited Guarantees”), pursuant to which each such Principal Investor or its Affiliates agreed, subject to the terms and conditions set forth therein, to guarantee certain payment obligations of Parent or Merger Sub arising under the Merger Agreement; and
WHEREAS, the Investors, Parent and Merger Sub wish to agree to certain terms and conditions that will govern the actions of Parent and Merger Sub and the relationship among the Investors with respect to the Merger Agreement, the Equity Commitment Letters, the Support Agreements and the Limited Guarantees, and the transactions contemplated thereby.
NOW, THEREFORE, in consideration of the premises and of the mutual covenants and obligations hereinafter set forth, the Parties hereby agree as follows:
AGREEMENT
| 1. | AGREEMENTS AMONG THE INVESTORS. |
1.1 Actions under the Merger Agreement. The Principal Investors acting jointly may cause Parent and Merger Sub to take any action or refrain from taking any action in order for them to comply with their obligations, satisfy their closing conditions or exercise their rights under the Merger Agreement, including, without limitation, determining that the conditions to closing specified in Sections 8.1, 8.2 and 8.3 of the Merger Agreement (the “Closing Conditions”) have been satisfied, waiving compliance with any agreement or condition in the Merger Agreement, including any Closing Condition, terminating, amending or modifying the Merger Agreement and determining to close the Merger; provided that the Principal Investors may not cause Parent to amend the Merger Agreement (i) such that the Per Share Merger Consideration or the Per ADS Merger Consideration would be less than $16 without JD’s prior written consent, or (ii) in a way that by its terms has an impact, economic or otherwise, on any Investor that is disproportionately adverse to the impact, economic or otherwise, on any other Investor without such Investor’s written consent. Parent and Merger Sub shall not, and the Investors shall not permit Parent or Merger Sub to, determine that the Closing Conditions have been satisfied, waive any Closing Condition, terminate, amend or modify the Merger Agreement or determine to close the Merger, unless such action has been approved in advance in writing by the Principal Investors in accordance with this Agreement. Each of Parent and Merger Sub agrees not to take any action with respect to the Merger Agreement, including granting or withholding of waivers or entering into amendments, unless such actions are in accordance with this Agreement. Notwithstanding anything to the contrary herein, Tencent has the sole discretion to cause Parent and Merger Sub to determine whether the conditions set forth in Section 8.2(e) of the Merger Agreement has been satisfied, including the granting or withholding of waivers with respect thereto, without seeking the prior written consent of any of the other Investors.
1.2 Equity Financing.
| (a) | Parent shall, at the direction of the Principal Investors (other than any Failing Investor) acting jointly, enforce the provisions of the Equity Commitment Letters in accordance with the terms of the Merger Agreement and the Equity Commitment Letters. Each Principal Investor shall comply with its obligation under its applicable Equity Commitment Letter; provided that no Investor shall have an independent right to enforce an Equity Commitment Letter, other than as provided in the immediately preceding sentence. Notwithstanding anything in any Equity Commitment Letter to the contrary, and prior to the Effective Time, none of the Principal Investors shall be entitled to assign, sell-down or syndicate any part of its Equity Commitment to any third party (which for the avoidance of doubt shall not include the admission of any additional limited partner to Hammer) without the prior consent of the other Principal Investor which prior consent shall not affect any of such Principal Investor’s obligations or rights under Section 12 of the applicable Equity Commitment Letter. Each Investor shall be entitled to receive, in consideration for its and/or its Affiliates’ Commitment, the number of Parent Shares as set forth against its name in column (D) of Exhibit A hereto, having the terms set forth herein; provided that in the event Tencent or any its Affiliates acquires any Shares and/or ADSs from any Founder Shareholder prior to the Closing pursuant to that certain consent letter agreement |
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| dated October 15, 2019, by and among the Principal Investors and the Founder and the Founder Shareholders, then (i) the number of such Shares and/or ADSs shall be added to the number of Rollover Shares of Tencent set out against its name in column (B) of Exhibit A hereto, and the number of Parent Shares to be issued to Tencent for its contribution of Rollover Shares pursuant to the immediately foregoing sentence shall be increased by such same number; and (ii) (A) the deemed value of such Shares and/or ADSs (based on the Per Share Merger Consideration and/or the Per ADS Merger Consideration, as applicable) shall be counted towards the total amount of cash equity financing required by the Merger, and the amount of cash equity financing to be contributed by Tencent shall be reduced by such same amount and (B) the amount of cash equity financing to be contributed by Hammer shall remain to be the same as the amount of cash subscription set out against its name in column (C) of Exhibit A hereto. |
| (b) | If the Principal Investors acting jointly determine that the Merger Consideration required to be paid by Parent in connection with the Closing under the Merger Agreement is less than the aggregate Equity Commitments under all the Equity Commitment Letters, then the amount that each Principal Investor invests in Parent will be reduced in proportion of their respective LG Percentages. If the Principal Investors jointly determine that the Merger Consideration required to be paid by Parent in connection with the Closing under the Merger Agreement is greater than the aggregate Equity Commitments of all the Equity Commitment Letters, then the amount of such excess shall first be offered to the Principal Investors (other than any Failing Investor) in proportion of their respective LG Percentages and, if less than all of such excess is accepted by the Principal Investors, then the Principal Investors may offer the remaining portion of such excess to any other Investors, or to any new investor (provided that, the prior written consent of JD shall be required if such new investor is a Restricted Transferee), and in such amounts, as may be jointly determined by the Principal Investors. For the avoidance of doubt, none of the Investors has any obligation to accept any additional commitment. Any additional commitment accepted by an Investor pursuant to this Section 1.2(b) shall be made on the same terms and conditions as such Investor’s existing Commitment (provided that to the extent an Investor is satisfying its Commitment by the contribution of Rollover Shares, and such Investor does not have sufficient Shares available to satisfy such addition commitment, such Investor may elect to satisfy such additional commitment with a cash contribution). |
1.3 Support Agreements.
| (a) | Each Rollover Investor shall comply with the obligations in respect thereof under the applicable Support Agreement; provided that no Investor shall have an independent right to enforce the Support Agreement, other than as provided in such Support Agreement, and provided further that the Principal Investors acting jointly may waive the breach by any Rollover Shareholder under the applicable Support Agreement. The Parties agree and acknowledge that (i) the number of Rollover Shares of JD as referred to in the applicable Original Support Agreement shall be the number of Rollover Shares as set forth against the name of JD in Exhibit A; (ii) the number of Rollover Shares of Founder as referred to in the applicable Original Support Agreement shall be the total number of Rollover Shares as set forth against the names of the Founder Shareholders in Exhibit A; (iii) all references to “Holdco” and “Holdco Shares” in each Original Support Agreement shall be deemed as references to “Parent” and “Parent Shares,” respectively; and (iv) each Original Support Agreement is hereby amended and supplemented by this Agreement with respect to the matters referred to in the foregoing clauses of this sentence and to the extent of any other discrepancy between the provision of such Original Support Agreement and the provisions of this Agreement. |
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| (b) | The Founder shall procure Proudview Limited and Serene View Investment Limited (collectively, the “Founder Shareholders”) to comply with their obligations hereunder and under the Support Agreement to which he is a party and the Founder and the Founder Shareholders be jointly and severally liable for any obligations and liabilities of any of them hereunder and thereunder. |
| (c) | Without prejudice to any provision in the applicable Support Agreement or this Agreement, JD undertakes to promptly give all the necessary consent that may be required to be given by JD in connection with the Transactions pursuant to the Amended and Restated Investor Rights Agreement entered into between, among others, the Company, JD and Tencent dated June 17, 2016 (as amended from time to time). |
1.4 Grant of Proxy. Each Rollover Investor hereby irrevocably and unconditionally grants a proxy to, and appoints, Parent and/or any designee of Parent, and each of them individually, as its proxies and attorneys-in-fact, with full power of substitution and resubstitution, for and in such Investor’s name, place and stead, to vote, act by written consent or execute and deliver a proxy, solely in respect of the matters described in, and in accordance with, Section 2.1(a) of its Support Agreement, and to vote or grant a written consent with respect to the Covered Shares (as defined in its Support Agreement) provided in Section 2.1(a) of its Support Agreement. This proxy and power of attorney is given in connection with, and in consideration of, the time and resources that have been and will be expended by the Principal Investors and their respective Affiliates in connection with the Merger and any other transactions contemplated by the Merger Agreement and to secure the performance of the duties and obligations of such Rollover Investor owed to the Principal Investors under its Support Agreement. Each Rollover Investor hereby (a) affirms that such irrevocable proxy is (i) coupled with an interest by reason of the time and resources that have been and will be expended by the Principal Investors and their respective Affiliates in connection with the Merger and any other transactions contemplated by the Merger Agreement and (ii) subject to the last sentence of this Section 1.4, executed and intended to be irrevocable in accordance with the provisions of the Laws of the State of New York, and (b) revokes any and all prior proxies granted by such Rollover Investor with respect to the Covered Shares (as defined in its Support Agreement) and no subsequent proxy shall be given by such Rollover Investor (and if given shall be ineffective). Each Rollover Investor shall take such further action or execute such other instruments as may be requested by Parent in accordance with the relevant provisions of the Laws of the State of New York or any other Law to effectuate the intent of this proxy. The power of attorney granted by each Rollover Investor herein is a durable power of attorney and, so long as Parent has the interest secured by such power of attorney or the obligations secured by such power of attorney remain undischarged, the power of attorney shall not be revoked by the dissolution, bankruptcy, death or incapacity of such Rollover Investor. The proxy and power of attorney granted hereunder shall automatically and without further action by the Parties terminate upon the termination of this Agreement in accordance with its terms.
1.5 Limited Guarantees. The Investors (other than JD) shall reasonably cooperate in defending any claim that the Principal Investors are or any of them is liable to make payments under the Limited Guarantees. JD shall reasonably cooperate in defending any claim that the Principal Investors are or any of them is liable to make payments under the Limited Guarantees to the extent such payment obligations arise from any breach by JD of its Support Agreement or this Agreement. Subject to Section 1.10(d) and Section 1.10(e), each Principal Investor agrees to contribute to the amount paid or payable by the other Principal Investor in respect of such other Principal Investor’s Limited Guarantee (other than any such payment made by a Principal Investor solely arising from such Principal Investor’s breach of its obligations under such Principal Investor’s Limited Guarantee, which amounts shall not be subject to this Section 1.5) so that each Principal Investor will have paid an amount equal to the product of the aggregate amount paid under all of the Limited Guarantees multiplied by a fraction of which the numerator is such Principal Investor’s Maximum Amount (as defined in such Principal Investor’s Limited Guarantee) and the denominator is the sum of all Principal Investors’ Maximum Amount (such fraction, expressed as a percentage, such Principal Investor’s “LG Percentage”).
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1.6 Shareholders Agreement; Appointment of Directors. Each Investor agrees to negotiate in good faith with the other Investors with respect to, and enter into concurrently with the Effective Time, a shareholders’ agreement in relation to the Parent (the “Shareholders Agreement”) or other definitive agreements, mutually agreeable to each such Investor, containing, customary terms including the terms set forth in Exhibit B hereto. Parent and each Investor hereby agree to take (or cause to be taken) all actions, if any, required to be taken by each, such that the board of directors of Parent has the composition contemplated by Exhibit B hereto immediately prior to the Effective Time. In the event that the Investors are unable to agree on the terms of the Shareholders Agreement, the terms set forth in Exhibit B hereto shall govern with respect to the matters set forth therein until such time as the Investors enter into the Shareholders Agreement.
1.7 Required Information. Each of the Investors, on behalf of itself and its respective Affiliates, agrees to promptly provide to Parent (consistent with the timing required by the Merger Agreement or applicable Law, as applicable) any information about such Investor (or its Affiliates) that Parent (at the direction of the Principal Investors acting jointly) reasonably determines upon the advice of outside legal counsel is required to be included in (i) the Proxy Statement, (ii) the Schedule 13E-3 or (iii) any other filing or notification with any Governmental Entity in connection with the Transactions, including the Merger, this Agreement, the Equity Commitment Letters, the Limited Guarantees, the Support Agreements or any other agreement or arrangement to which it (or any of its Affiliates) is a party relating to the Transactions. Each of the Investors shall reasonably cooperate with Parent in connection with the preparation of the foregoing documents to the extent such documents relate to such Investor (or any of its Affiliates). Each of the Investors agrees to permit the Company to publish and disclose in the Proxy Statement (including all documents filed with the SEC in accordance therewith), its and its respective Affiliates’ identity and beneficial ownership of the Shares, ADSs or other equity securities of the Company and the nature of such Party’s commitments, arrangements and understandings under this Agreement, the Equity Commitment Letters, the Limited Guarantees, the Support Agreements or any other agreement or arrangement to which it (or any of its Affiliates) is a party relating to the Transactions (including a copy thereof), to the extent required by applicable Law or the SEC (or its staff) or by mutual agreement between the Company and Parent (at the direction of the Principal Investors acting jointly). Each of the Investors hereby represents and warrants to Parent and the Principal Investors as to itself and its Affiliates, as applicable, that, solely with respect to any information supplied by such Investor in writing pursuant to this Section 1.7, none of such information contained or incorporated by reference in the Proxy Statement will at the time of the mailing of the Proxy Statement to the shareholders of the Company, at the time of the Shareholder Meeting, or at the time of any amendments thereof or supplements thereto, and none of such information supplied or to be supplied by such Investor for inclusion or incorporation by reference in the Schedule 13E-3 to be filed with the SEC concurrently with each filing of the Proxy Statement will, at the time of such filing with the SEC, or at the time of filing with the SEC any amendments thereof or supplements thereto, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. If required under applicable Law or requested by applicable Governmental Entities following the time that all of the relevant facts and circumstances of a Party’s involvement in the Transactions are provided to such Governmental Entities and such Party has had a reasonable amount of time (taking into consideration the status of the applicable Governmental Entity’s clearance of other related documents and filings relating to the Transactions, such as the Proxy Statement) to present and explain its positions with the applicable Governmental Entity, such Party agrees to join (and to cause its Affiliates to join) as a filing party to any Schedule 13E-3 filing discussed in the preceding sentence.
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1.8 Consummation of the Transactions. In the event that the Closing Conditions are satisfied or validly waived in accordance with the terms of the Merger Agreement and this Agreement, and Parent and Merger Sub are obliged to consummate the Merger in accordance with the Merger Agreement, the Principal Investors who are not Failing Investors (as defined below), acting jointly, may (i) direct Parent to enforce the obligation of any Failing Investors under its Equity Commitment Letter or Support Agreement, as applicable, and/or (ii) terminate the participation in the Transactions of any Investor that fails to fund its Commitment (as defined below) or that asserts in writing its unwillingness to fund its Commitment, in each case pursuant to its Equity Commitment Letter or Support Agreement, as applicable (a “Failing Investor”); provided, that such termination shall not affect the rights of the Closing Investors (as defined below) against such Failing Investor with respect to such breach or threatened breach, which rights shall be exercised in the manner as provided in Sections 2.4 and 2.5 hereof. In the event the Principal Investors who are not Failing Investors, acting jointly, terminate a Failing Investor’s participation in the Transactions, the amount of such Failing Investor’s Equity Commitment (if any) and/or the value of its or his Shares to be cancelled for no consideration under its Support Agreement (if any) (calculated as the product of the number of such Shares and the Per Share Merger Consideration) (such value, the “Rollover Commitment,” and together with any Equity Commitment, the “Commitment”) shall first be offered to (A) the Principal Investors in proportion of their respective LG Percentages, if neither of the Principal Investors is a Failing Investor or (B) the Principal Investor who is not a Failing Investor, if one of the Principal Investors is a Failing Investor, and if none or not all of a Failing Investor’s Commitment is accepted by the Principal Investors (other than any Failing Investor) in such proportions, then the Principal Investors who are not Failing Investors, acting jointly, may offer such Failing Investor’s Commitment, or any portion thereof, to the Rollover Investors or to one or more new investors approved by the Principal Investors who are not Failing Investors, acting jointly; provided that, the prior written consent of JD shall be required if such new investor is a Restricted Transferee. Each Investor agrees that in the event the consent or direction of the Principal Investors is required under this Agreement, if a Principal Investor is also a Failing Investor, then such Failing Investor shall be deemed not to be a Principal Investor for the purposes of such consent or direction.
1.9 Non-Consenting Investors. In the event that the Principal Investors, acting jointly, are willing to agree to, proceed with, or take any action or enter into any agreement (or, in each such case, to permit Parent to do so) with respect to amending the Merger Agreement such that (i) the amount of the Per Share Merger Consideration or the Per ADS Merger Consideration will be reduced or the form thereof will be materially modified, (ii) Parent will acquire less than all of the outstanding Shares and ADSs not already beneficially owned by the Investors and their Affiliates, or (iii) the structure of the Transactions will be materially modified, and any other Investor declines or fails to agree to, proceed with, or take any action or enter into any agreement (or, in each such case, to permit Parent to do so) with respect to such matter (the “Non-Consenting Investor”), the Principal Investors may, acting jointly, nevertheless proceed with such matter by first terminating such Non-Consenting Investor’s participation in the Transactions, and in such event such Non-Consenting Investor shall have no liability hereunder (except as specifically provided in Sections 1.10 and 1.12(d) hereof or otherwise arising from any breach of this Agreement by such Non-Consenting Investor prior to the date of such termination) or, if applicable, under its Support Agreement. In the event the Principal Investors acting jointly terminate the Non-Consenting Investor’s participation in the Transactions, the amount of such Non-Consenting Investor’s Commitment shall first be offered to the Principal Investors (other than any Failing Investor) in proportion of their respective Commitments to the aggregate Commitments of the Principal Investors (other than any Failing Investor) at the time of such termination, and if none or not all of such Non-Consenting Investor’s Commitment is accepted by such Principal Investors in such proportions, then such Principal Investors jointly, may offer such Non-Consenting Investor’s Commitment, or any portion thereof, to the other Investors or to one or more new investors approved by such Principal Investors who are not Failing Investors, acting jointly.
1.10 Termination Fee and Expense Sharing.
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| (a) | Upon consummation of the Merger, Parent shall or shall cause the Surviving Company to reimburse the Principal Investors for, or pay on behalf of the Principal Investors, as the case may be, all of their out-of-pocket costs and expenses incurred in connection with the Merger, including without limitation, the reasonable fees, expenses and disbursements of Joint Advisors (as defined below) retained by the Parties (other than fees and costs of any separate advisors and/or consultants who were retained by any Party unless and only to the extent such appointment and expenses are agreed to in advance in writing by the other Parties) and the costs of any financing provided by any Party in connection with management incentive (“Consortium Transaction Expenses”). For the purposes of this Agreement, the Parties agree that the Principal Investors shall be responsible for engaging (including the scope and engagement terms), terminating or changing all joint advisors and/or consultants to the Parties in connection with the Merger (such joint advisors and/or consultants to the Parties agreed in writing by both Principal Investors in accordance with this Section 1.10(a), the “Joint Advisors”), provided that the Principal Investors shall first consult with the other Parties prior to any such engagement, termination or change, and provided further that the Parties agree and acknowledge that Latham & Watkins LLP, Kirkland & Ellis, Maples and Calder (Hong Kong) LLP, Zhong Lun Law Firm, Bank of America Merrill Lynch and KPMG have been jointly selected by the Parties as the U.S. legal counsel, Hong Kong legal counsel, Cayman Islands legal counsel, PRC legal counsel, financial advisor and tax advisor, respectively, to represent the Parties in connection with the Merger and shall be “Joint Advisors” under this Agreement. |
| (b) | Notwithstanding anything to the contrary in the Consortium Agreement dated September 12, 2019 entered into between the Principal Investors (the “Consortium Agreement”), if the Merger Agreement is terminated prior to the Closing in accordance with its terms (and Section 1.10(c) below does not apply), the Principal Investors agree to share the Consortium Transaction Expenses incurred in connection with the Merger in proportion of their respective LG Percentages. |
| (c) | If the failure of the Merger to be consummated prior to termination of the Merger Agreement results from any breach of the Consortium Agreement, this Agreement, the Equity Commitment Letters and/or the Support Agreements, as applicable, by one or more Investors and their respective Affiliates (each a “Breaching Investor”), then the Breaching Investor(s) shall be responsible to pay the full amount of the Consortium Transaction Expenses and reimburse each Investor who is not a Breaching Investor for all of its out-of-pocket costs and expenses incurred in connection with the Merger, including the fees, expenses and disbursements of any separate advisors or consultants retained by such non-Breaching Investor, without prejudice to any claims, rights and remedies otherwise available to such non-breaching Investor; provided that if there are more than one Breaching Investor, each of the Breaching Investors shall be jointly and severally liable for the payment obligations contained in the preceding sentence. |
| (d) | If (i) the Merger Agreement is terminated pursuant to Section 9.1(h) thereof, (ii) any amount becomes payable by the Principal Investors pursuant to the Limited Guarantees and (iii) one of the Principal Investors is a Defaulting Principal Investor (as defined below), then such Defaulting Principal Investor shall pay to Parent an amount equal to the sum of Parent Termination Fee and such costs and expenses to be reimbursed by Parent pursuant to Section 9.2(d) of the Merger Agreement by wire transfer of same day funds within ten (10) Business Days following such termination of the Merger Agreement. A “Defaulting Principal Investor” is a Principal Investor whose failure to perform its obligation under its Equity Commitment Letter and/or this Agreement results in the termination of the Merger Agreement pursuant to |
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| Section 9.1(h) thereof. Notwithstanding anything to the contrary in this Agreement, to the extent that the Limited Guarantee of a Principal Investor that is not the Defaulting Principal Investor has been enforced, the Defaulting Principal Investor shall promptly pay (or reimburse, as applicable) the amount of the Guaranteed Obligations (as defined in such Limited Guarantee) of such non-Defaulting Principal Investor that is payable thereunder directly to such non-Defaulting Principal Investor. |
| (e) | If (i) the Merger Agreement is terminated pursuant to Section 9.1(c) thereof, (ii) the Parent Termination Fee becomes payable as a result of such termination pursuant to Section 9.2(b)(v) of the Merger Agreement and (iii) the last sentence of Section 1.1 has been satisfied, then Tencent shall be responsible for and pay to Parent an amount equal to the sum of Parent Termination Fee and such costs and expenses to be reimbursed by Parent pursuant to Section 9.2(d) of the Merger Agreement by wire transfer of same day funds within ten (10) Business Days following such termination of the Merger Agreement. Notwithstanding anything to the contrary in this Agreement, to the extent that the Limited Guarantee of Hammer has been enforced as a result of such termination described in this Section 1.10(e), Tencent shall promptly (and in any event within ten (10) Business Days) pay to Hammer, by wire transfer of same day funds, the amount of the Guaranteed Obligations (as defined in such Limited Guarantee) of Hammer or any portion thereof when such amount becomes due and payable by Hammer thereunder. |
| (f) | Any termination, break-up, reimbursement or other fees and amounts (including the Company Termination Fee) paid by the Company or any of its Affiliates to the Parent pursuant to the Merger Agreement or otherwise shall be first used to pay, or adequately provisioned for, all Consortium Transaction Expenses, before being promptly paid to the Principal Investors (other than any Principal Investor that is a Failing Investor at the time of termination of the Merger Agreement) or their designees in proportion of their respective LG Percentages, determined excluding the Maximum Amount of each Failing Investor. |
| (g) | For the avoidance of doubt, Section 3.1 of the Consortium Agreement shall be hereby terminated by the Principal Investors and be of no further force and effect. |
| (h) | The obligations under this Section 1.10 shall exist whether or not the Merger is consummated, and shall survive the termination of the other terms of this Agreement. |
1.11 Notice of Closing; Notices. Parent will use its commercially reasonable efforts to provide each Investor with at least three (3) Business Days prior notice of the Closing Date under the Merger Agreement; provided that the failure to provide such notice will not relieve an Investor of its obligations under this Agreement. Any notices received by Parent pursuant to Section 10.4 of the Merger Agreement shall be promptly provided to each Investor at the address set forth in such Investor’s Equity Commitment Letter and/or Support Agreement.
1.12 Representations and Warranties; Covenant.
| (a) | Each Investor hereby represents, warrants and covenants to the other Investors that: (i) it has the requisite power and authority to execute, deliver and perform this Agreement, (ii) the execution, delivery and performance of this Agreement by it have been duly authorized by all necessary action on the party of such Investor and no other proceedings or procedures are necessary to approve this Agreement, (iii) this Agreement has been duly executed and delivered by such Investor and constitutes a valid and binding agreement of such Investor enforceable in accordance with the terms hereof, subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or |
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| affecting creditors’ rights and to general equity principles (regardless of whether considered in a proceeding in equity or at law), and (iv) such Investor’s execution, delivery and performance of this Agreement will not violate: (A) if such Investor is a corporate entity, any provision of its organizational documents or (B) any order, writ, injunction, decree or statute, or any rule or regulation, applicable to such Investor. |
| (b) | Each Investor hereby represents, warrants and covenants to the other Investors that none of the information supplied in writing by such Investor specifically for inclusion or incorporation by reference in the Proxy Statement or Schedule 13E-3 will cause a breach of the representations and warranties of Parent or Merger Sub set forth in the Merger Agreement. Each Investor hereby represents, warrants and covenants to the other Investors that it has not entered into any agreement, arrangement or understanding with any other Investor, any other potential investor or group of potential investors (other than any such potential investor that may be admitted into such Investor as a limited partner without affecting any of the representations, warranties, covenants and other agreements of such Investor under this Agreement), or the Company with respect to the subject matter of this Agreement and the Merger Agreement, other than the agreements expressly contemplated by this Agreement (including exhibits) and the Merger Agreement or unless otherwise disclosed to the other Investors in writing prior to the date of this Agreement. |
| (c) | Each Investor other than the Tencent Shareholders and Hammer represents, warrants and covenants to the other Investors that neither it nor any of its Affiliates (i) is a direct or indirect shareholder of Yixin Group Limited (“Yixin”) (except in the case of JD and its Affiliates which hold an aggregate of 684,283,320 shares in the share capital of Yixin), or (ii) will during the offer period (as defined in the Takeovers Code) in respect of the mandatory general offer to be made for all the issued and other securities of Yixin upon the completion of the Merger pursuant to the Takeovers Code, directly or indirectly, acquire any share in the share capital of Yixin, in each case, except through its beneficial ownership of the Shares, ADSs or other equity securities of the Company. |
| (d) | Until this Agreement is terminated pursuant to Section 2.1, no Investor shall enter into any agreement, arrangement or understanding with any other potential investor or acquirer, group of investors or acquirors, or the Company or any of its representatives with respect to the subject matter of this Agreement and the Merger Agreement or any other similar transaction involving the Company without the prior approval of the Principal Investors acting jointly; provided that this Section 1.12(d) shall continue to apply to an Investor (i) that is a Failing Investor for a period of one (1) year following such Investor becoming a Failing Investor or (ii) that is released from this Agreement pursuant to Section 1.9 until the earlier of the Effective Time and termination of the Merger Agreement pursuant to Article IX thereof. |
| (e) | Each of Parent and Merger Sub hereby represents, warrants and covenants to each of the Investors that it has not entered, and prior to the Closing will not enter, into any agreement or arrangement of any kind with any Person that grants a Person: (i) the right to purchase a different class of security than that being purchased by the Investors in accordance with the terms of the Equity Commitment Letters and/or the Support Agreements, (ii) the right to purchase the same class of security as that being purchased by the Investors in accordance with the Equity Commitment Letters and/or the Support Agreements, but at a lower price than pursuant thereto, or (iii) any other right not provided for herein, except, in all cases, agreements or arrangements entered into by Parent or Merger Sub with the consent of the Principal Investors acting jointly. |
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1.13 Announcement. Subject to Section 7.3 of the Merger Agreement as it relates to Parent and Merger Sub, no announcements regarding the subject matter of this Agreement shall be issued by any Investor without the prior written consent of the Principal Investors acting jointly, except to the extent that any such announcements are required by law, a court of competent jurisdiction, a regulatory body or international stock exchange, and then only after (a) the form and terms of such disclosure have been provided to the Principal Investors for its review and comment, and (b) notice has been provided to the Principal Investors and such Principal Investors have had a reasonable opportunity to comment thereon, in each case to the extent legally permissible.
1.14 Confidentiality.
| (a) | Except as permitted under Section 1.14(d), 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 such Party’s Affiliates and Representatives. 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. “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 in connection with the Transactions, including the Merger Agreement. |
| (b) | Subject to Section 1.14(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 1.14 shall continue to apply for a period of twelve (12) months following termination of this Agreement pursuant to Section 2.1, unless otherwise agreed in writing. |
| (d) | Notwithstanding anything to the contrary in this Agreement, a Party may disclose Confidential Information (i) to those of its Affiliates and Representatives as such Party reasonably deems necessary to give effect to, perform its obligations under or enforce this Agreement or evaluate, negotiate and implement the Transactions, but only on a confidential basis; or (ii) if required by Law or a court of competent jurisdiction, the United States Securities and Exchange Commission or any other regulatory body or international stock exchange having jurisdiction over a Party or pursuant to whose rules and regulations such disclosure is required to be made, but only after the form and terms of such disclosure have been notified to the other Parties and the other Parties have had a reasonable opportunity to comment thereon, in each case to the extent reasonably practicable. |
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1.15 Parent Short Term Loan. If one or more Principal Investors determine that it is necessary to enter into a short term loan with Parent for the advancement of funds to facilitate Closing then, notwithstanding anything to the contrary contained herein or in any documents or agreements contemplated hereby, such Principal Investor(s) may enter into, or cause any of its Affiliates to enter into, such short term loan arrangement with Parent pursuant to which such one or more Principal Investors or their respective Affiliates shall agree to advance the necessary funds to Parent prior to Closing in the form of plain-vanilla non-interest bearing loans not convertible into, exchangeable for, or otherwise having a right to directly or indirectly acquire, any equity securities of Parent, the Company or any of their respective Subsidiaries, in order to enable Parent to satisfy all funding requirements at Closing and Parent shall, promptly following the Closing, cause the Company to repay such funds to such applicable Principal Investors or their respective Affiliates.
1.16 Tax. Each Investor shall be responsible for its own Taxes and related Tax obligations arising from 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.
| 2. | MISCELLANEOUS. |
2.1 Effectiveness. This Agreement shall become effective on the date hereof and shall terminate (except with respect to Sections 1.7, 1.10, 1.11, 1.12, 1.13, 1.14 and 2) upon the earlier of the Effective Time and the termination of the Merger Agreement pursuant to Article IX thereof; provided that any liability for failure to comply with the terms of this Agreement prior to such termination shall survive such termination.
2.2 Amendment. This Agreement may be amended or modified and the provisions hereof may be waived, only by an agreement in writing signed by both Principal Investors; provided that (a) no provision of this Agreement (excluding exhibits) may be amended in a manner that by its terms adversely affects an Investor without such Investor’s consent, and (b) no provision in this Agreement that requires the consent of each Investor may be amended without a writing signed by all of the Investors.
2.3 Severability. If any term or other provision of this Agreement is invalid, illegal or incapable of being enforced by rule of Law or public policy, all other conditions and provisions of this Agreement shall nevertheless remain in full force and effect. Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the Parties shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible in an acceptable manner.
2.4 Remedies. Except as provided herein, this Agreement will be enforceable by all available remedies at law or in equity (including, without limitation, specific performance), provided that this Agreement may only be enforced against an Investor by Parent or Merger Sub, acting at the direction of the Principal Investors (other than a Failing Investor) acting jointly. In the event that Parent determines to enforce the provisions of the Equity Commitment Letters or the Support Agreements, in each case, in accordance with this Agreement, the Investors that are prepared to fund their Commitments immediately prior to the Closing (the “Closing Investors”) shall be entitled, in their discretion, to either (i) specific performance of the terms of this Agreement and the Equity Commitment Letters or the Support Agreements, as applicable, together with any costs of enforcement incurred by the Closing Investors in seeking to enforce such remedy or (ii) payment by the Failing Investors in an amount equal to the aggregate out-of-pocket damages incurred by such Closing Investors (including without limitation amounts paid under any such Closing Investor’s Limited Guarantee). If there are multiple Failing Investors, each Failing Investor’s portion of the total
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obligations hereunder shall be the amount equal to the product of (A) the amounts due from all Failing Investors hereunder (including the value of any Rollover Commitment) and (B) a fraction of which the numerator is such Failing Investor’s Commitment, as applicable, and the denominator is the sum of all Failing Investors’ Commitments.
2.5 No Recourse. Notwithstanding anything that may be expressed or implied in this Agreement, and notwithstanding the fact that certain of the Investors may be partnerships or limited liability companies, Parent, Merger Sub and each Investor covenants, agrees and acknowledges that no recourse under this Agreement or any documents or instruments delivered in connection with this Agreement shall be had against any current or future director, officer, employee, shareholder, general or limited partner or member or manager of any Investor or of any partner, member, manager or affiliate thereof, as such, whether by the enforcement of any assessment or by any legal or equitable proceeding, or by virtue of any statute, regulation or other applicable Law, it being expressly agreed and acknowledged that no personal liability whatsoever shall attach to, be imposed on or otherwise be incurred by any current or future director, officer, employee, shareholder, general or limited partner or member or manager of any Investor or of any partner, member, manager or affiliate thereof, as such, for any obligation of any Investor under this Agreement or any documents or instruments delivered in connection with this Agreement for any claim based on, in respect of or by reason of such obligations or their creation.
2.6 Governing Law; Jurisdiction.
| (a) | This Agreement shall be interpreted, construed and governed by and in accordance with the Laws of the State of New York without regard to the conflicts of Law principles thereof that would subject such matter to the Laws of another jurisdiction. |
| (b) | Any Legal Proceedings arising out of or in any way relating to this Agreement shall be submitted to the Hong Kong International Arbitration Centre (“HKIAC”) and resolved in accordance with the Arbitration Rules of HKIAC in force at the relevant time and as may be amended by this Section 2.6 (the “Rules”). The place of arbitration shall be Hong Kong. The official language of the arbitration shall be English and the 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 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. |
| (c) | Notwithstanding the foregoing, the Parties hereby consent to and agree that in addition to any recourse to arbitration as set out in this Section 2.6, any Party may, to the extent permitted under the rules and procedures of the HKIAC, seek an interim injunction or other form of relief from the HKIAC as provided for in its Rules. Such application shall also be governed by, and construed in accordance with, the laws of the State of New York. |
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| (d) | Each of the Parties irrevocably consents to service of process in the manner provided for notices in Section 10.4 of the Merger Agreement and in the case of each Investor at the address set forth in such Investor’s Equity Commitment Letter or Support Agreement. Nothing in this Agreement will affect the right of any Party to serve process in any other manner permitted by Law. |
2.7 Exercise of Rights and Remedies.
| (a) | Except as otherwise provided herein, any and all remedies herein expressly conferred upon a Party will be deemed cumulative with and not exclusive of any other remedy conferred hereby, or by Law or equity upon such Party, and the exercise by a Party of any one remedy will not preclude the exercise of any other remedy. No failure or delay on the part of any Party in the exercise of any right hereunder will impair such right or be construed to be a waiver of, or acquiescence in, any breach of any representation, warranty or agreement herein, nor will any single or partial exercise of any such right preclude other or further exercise thereof or of any other right. |
| (b) | The Parties agree that irreparable damage would occur in the event that any of the provisions of this Agreement were not performed in accordance with their specific terms or were otherwise breached. Except as set forth in this Section 2.7, including the limitations set forth in Section 2.7(c), it is agreed that prior to any termination of this Agreement, the non-breaching Parties shall be entitled to an injunction or injunctions to prevent breaches of this Agreement by any other Party and to specifically enforce the terms and provisions of this Agreement. |
| (c) | The Parties’ right of specific enforcement is an integral part of the transactions contemplated hereby and each Party hereby waives any objections to the grant of the equitable remedy of specific performance to prevent or restrain breaches of this Agreement by any other Party (including any objection on the basis that there is an adequate remedy at Law or that an award of specific performance is not an appropriate remedy for any reason at Law or equity), and each Party shall be entitled to an injunction or injunctions and to specifically enforce the terms and provisions of this Agreement to prevent or restrain breaches or threatened breaches of, or to enforce compliance with, the covenants and obligations of such Party under this Agreement all in accordance with the terms of this Section 2.7. In the event any Party seeks an injunction or injunctions to prevent breaches of this Agreement and to enforce specifically the terms and provisions of this Agreement, such Party shall not be required to provide any bond or other security in connection with such order or injunction all in accordance with the terms of this Section 2.7. |
2.8 Other Agreements. This Agreement, together with the Merger Agreement, the Equity Commitment Letters, the Limited Guarantees, the Support Agreements and other agreements referenced herein, constitutes the entire agreement, and supersedes all prior agreements, understandings, negotiations and statements, both written and oral, among the Parties or any of their Affiliates with respect to the subject matter contained herein except for such other agreements as are referenced herein which shall continue in full force and effect in accordance with their terms having been expressly amended, clarified or supplemented by this Agreement. In the event of any conflict between the provisions of this Agreement and the provisions of such other agreements as are referenced herein, the provisions of this Agreement shall prevail.
2.9 Assignment. This Agreement may not be assigned by any Party or by operation of law or otherwise without the prior written consent of each of the other Parties, except that the Agreement may be assigned to an Affiliate of a Party, and, with the prior written approval of both Principal Investors, may be assigned by a Failing Investor to a new investor that accepts such Failing Investor’s Commitment pursuant to Section 1.8; provided that the Party making such assignment shall not be released from its obligations hereunder. Any attempted assignment in violation of this Section 2.9 shall be void.
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2.10 Counterparts. This Agreement may be executed in one or more counterparts, and by the different Parties in separate counterparts, each of which when executed shall be deemed to be an original but all of which taken together shall constitute one and the same agreement. Facsimile and e-mailed copies of signatures shall be deemed to be originals for purposes of the effectiveness of this Agreement.
[Signature pages follow]
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In witness whereof, each of the undersigned has duly executed this Agreement as of the date first written above.
| Morespark Limited | ||
| By: | /s/ Ma Huateng | |
| Name: | Ma Huateng | |
| Title: | Authorized Signatory | |
| Dongting Lake Investment Limited | ||
| By: | /s/ Ma Huateng | |
| Name: | Ma Huateng | |
| Title: | Authorized Signatory | |
| THL E Limited | ||
| By: | /s/ Ma Huateng | |
| Name: | Ma Huateng | |
| Title: | Authorized Signatory | |
[Signature Page to Interim Investors Agreement]
In witness whereof, each of the undersigned has duly executed this Agreement as of the date first written above.
| Hammer Capital Opportunities Fund L.P. | ||
| acting through its general partner, Hammer Capital Opportunities General Partner | ||
| By: | /s/ Amanda Chau | |
| Name: | Amanda Chau | |
| Title: | Authorized Signatory | |
16
In witness whereof, each of the undersigned has duly executed this Agreement as of the date first written above.
| JD.com Global Investment Limited | ||
| By: | /s/ Wang Nani | |
| Name: | Wang Nani | |
| Title: | Director | |
[Signature Page to Interim Investors Agreement]
In witness whereof, each of the undersigned has duly executed this Agreement as of the date first written above.
| Bin Li | ||
| By: | /s/ Bin Li | |
| Name: | Bin Li | |
| Proudview Limited | ||
| By: | /s/ Bin Li | |
| Name: | Bin Li | |
| Title: | Authorized Signatory | |
| Serene View Investment Limited | ||
| By: | /s/ Bin Li | |
| Name: | Bin Li | |
| Title: | Authorized Signatory | |
[Signature Page to Interim Investors Agreement]
In witness whereof, each of the undersigned has duly executed this Agreement as of the date first written above.
| Yiche Holding Limited | ||
| By: | /s/ Leiwen Yao | |
| Name: | Leiwen Yao | |
| Title: | Director | |
| Yiche Mergersub Limited | ||
| By: | /s/ Leiwen Yao | |
| Name: | Leiwen Yao | |
| Title: | Director | |
[Signature Page to Interim Investors Agreement]
Exhibit A
PARENT SHARES
| (A) Investor |
(B) Rollover Shares |
(C) Cash Subscription |
(D) Parent Shares |
|||||||||
| Morespark Limited |
2,471,577 | US$ | 698,955,040 | 49,167,373 | ||||||||
| Dongting Lake Investment Limited |
2,046,106 | — | — | |||||||||
| THL E Limited |
965,000 | — | — | |||||||||
| Hammer |
— | US$ | 174,738,760 | 10,921,173 | ||||||||
| JD.com Global Investment Limited |
10,549,714 | — | 10,549,714 | |||||||||
| Proudview Limited |
1,488,556 | — | 1,488,556 | |||||||||
| Serene View Investment Limited |
— | — | — | |||||||||