SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, D.C. 20549

 

 

SCHEDULE 13D/A

Under the Securities Exchange Act of 1934

(Amendment No. 6)

 

 

eHi Car Services Limited

(Name of Issuer)

Class A Common Shares, par value $0.001 per share

(Title of Class of Securities)

26853A100

(CUSIP Number)

Michael W. Andrew

600 Corporate Park Drive

St. Louis, MO 63105

314-512-5000

(Name, Address and Telephone Number of Persons Authorized to Receive Notices and Communications)

March 14, 2019

(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 which is the subject of this Schedule 13D, and is filing this schedule because of Rule 13d-1(e), 13d-1(f) or 13d-1(g), check the following box  ☐

(Continued on following pages)

 

 

 

CUSIP No. 26853A100

 

1.		NAMES OF REPORTING PERSONS:   Andrew C. Taylor
2.		CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (See Instructions): a.  ☐        b.  ☒
3.		SEC USE ONLY:
4.		SOURCE OF FUNDS (See Instructions):   OO
5.		CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e):  ☐
6.		CITIZENSHIP OR PLACE OF ORGANIZATION:   United States
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH				7.		SOLE VOTING POWER:   0 shares
				8.		SHARED VOTING POWER:   25,986,4711 shares
				9.		SOLE DISPOSITIVE POWER:   0 shares
				10.		SHARED DISPOSITIVE POWER:   25,986,4711 shares
11.		AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON:   25,986,4711 shares
12.		CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (See Instructions)  ☐
13.		PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11):   26.2%2
14.		TYPE OF REPORTING PERSON (See Instructions):   IN

 

 

¹ Consists of (i) 18,694,003 Class B Common Shares, 37,501 Class A Common Shares and 1,067,770 Class A Common Shares represented by ADSs held of record by Crawford, which is controlled by the Reporting Persons filing this Schedule 13D/A and which are beneficially held by the Reporting Persons, (ii) 3,030,839 Class B Common Shares held of record by ICG Holdco 1, which is a wholly-owned subsidiary of Crawford and which are beneficially held by the Reporting Persons, and (iii) 3,156,358 Class B Common Shares held of record by ICG Holdco 2, which is a wholly-owned subsidiary of Crawford and which are beneficially held by the Reporting Persons. Each Class B Common Share is convertible at any time into a Class A Common Share on a share-for-share basis. This number does not include the GS Subject Shares described in Item 4 of this Schedule 13D/A.

² Based on the quotient obtained by dividing: (a) the aggregate number of Class B Common Shares and Class A Common Shares beneficially owned by the Reporting Persons as set forth in Row 8 by (b) the sum of (i) 74,279,018 Class A Common Shares outstanding as stated in the Definitive Proxy Statement filed as Exhibit (a)-(1) to the Schedule 13E-3 filed with the Securities and Exchange Commission by the Issuer and certain other filing persons on March 11, 2019 (the “Proxy Statement”) and (ii) the number of Class B Common Shares beneficially owned by the Reporting Persons, or as to which the Reporting Persons may be deemed to beneficially own (i.e., 24,881,200). Each Class A Common Share is entitled to one vote, and each Class B Common Share is entitled to ten votes. As set forth in the Proxy Statement, there were 65,638,557 Class B Common Shares outstanding, including the 24,881,200 Class B Common Shares that may be deemed to be beneficially owned by the Reporting Persons. The percentage reported does not reflect the ten-for-one voting power of the Class B Common Shares because pursuant to Rule 13d-3(d), these shares are treated as converted into Class A Common Shares for the purposes of this Schedule 13D/A.

CUSIP No. 26853A100

 

1.		NAMES OF REPORTING PERSONS:   Jo Ann T. Kindle
2.		CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (See Instructions): a.  ☐        b.  ☒
3.		SEC USE ONLY:
4.		SOURCE OF FUNDS (See Instructions):   OO
5.		CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e):  ☐
6.		CITIZENSHIP OR PLACE OF ORGANIZATION:   United States
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH				7.		SOLE VOTING POWER:   0 shares
				8.		SHARED VOTING POWER:   25,986,4713 shares
				9.		SOLE DISPOSITIVE POWER:   0 shares
				10.		SHARED DISPOSITIVE POWER:   25,986,4713 shares
11.		AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON:   25,986,4713 shares
12.		CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (See Instructions)  ☐
13.		PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11):   26.2%4
14.		TYPE OF REPORTING PERSON (See Instructions):   IN

³ Consists of (i) 18,694,003 Class B Common Shares, 37,501 Class A Common Shares and 1,067,770 Class A Common Shares represented by ADSs held of record by Crawford, which is controlled by the Reporting Persons filing this Schedule 13D/A and which are beneficially held by the Reporting Persons, (ii) 3,030,839 Class B Common Shares held of record by ICG Holdco 1, which is a wholly-owned subsidiary of Crawford and which are beneficially held by the Reporting Persons, and (iii) 3,156,358 Class B Common Shares held of record by ICG Holdco 2, which is a wholly-owned subsidiary of Crawford and which are beneficially held by the Reporting Persons. Each Class B Common Share is convertible at any time into a Class A Common Share on a share-for-share basis. This number does not include the GS Subject Shares described in Item 4 of this Schedule 13D/A.

⁴ Based on the quotient obtained by dividing: (a) the aggregate number of Class B Common Shares and Class A Common Shares beneficially owned by the Reporting Persons as set forth in Row 8 by (b) the sum of (i) 74,279,018 Class A Common Shares outstanding as stated in the Proxy Statement and (ii) the number of Class B Common Shares beneficially owned by the Reporting Persons, or as to which the Reporting Persons may be deemed to beneficially own (i.e., 24,881,200).

Each Class A Common Share is entitled to one vote, and each Class B Common Share is entitled to ten votes. As set forth in the Proxy Statement, there were 65,638,557 Class B Common Shares outstanding, including the 24,881,200 Class B Common Shares that may be deemed to be beneficially owned by the Reporting Persons. The percentage reported does not reflect the ten-for-one voting power of the Class B Common Shares because pursuant to Rule 13d-3(d), these shares are treated as converted into Class A Common Shares for the purposes of this Schedule 13D/A.

CUSIP No. 26853A100

 

1.		NAMES OF REPORTING PERSONS:   Christine B. Taylor
2.		CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (See Instructions): a.  ☐        b.  ☒
3.		SEC USE ONLY:
4.		SOURCE OF FUNDS (See Instructions):   OO
5.		CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e):  ☐
6.		CITIZENSHIP OR PLACE OF ORGANIZATION:   United States
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH				7.		SOLE VOTING POWER:   0 shares
				8.		SHARED VOTING POWER:   25,986,4715 shares
				9.		SOLE DISPOSITIVE POWER:   0 shares
				10.		SHARED DISPOSITIVE POWER:   25,986,4715 shares
11.		AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON:   25,986,4715 shares
12.		CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (See Instructions)  ☐
13.		PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11):   26.2%6
14.		TYPE OF REPORTING PERSON (See Instructions):   IN

⁵ Consists of (i) 18,694,003 Class B Common Shares, 37,501 Class A Common Shares and 1,067,770 Class A Common Shares represented by ADSs held of record by Crawford, which is controlled by the Reporting Persons filing this Schedule 13D/A and which are beneficially held by the Reporting Persons, (ii) 3,030,839 Class B Common Shares held of record by ICG Holdco 1, which is a wholly-owned subsidiary of Crawford and which are beneficially held by the Reporting Persons, and (iii) 3,156,358 Class B Common Shares held of record by ICG Holdco 2, which is a wholly-owned subsidiary of Crawford and which are beneficially held by the Reporting Persons. Each Class B Common Share is convertible at any time into a Class A Common Share on a share-for-share basis. This number does not include the GS Subject Shares described in Item 4 of this Schedule 13D/A.

⁶ Based on the quotient obtained by dividing: (a) the aggregate number of Class B Common Shares and Class A Common Shares beneficially owned by the Reporting Persons as set forth in Row 8 by (b) the sum of (i) 74,279,018 Class A Common Shares outstanding as stated in the Proxy Statement and (ii) the number of Class B Common Shares beneficially owned by the Reporting Persons, or as to which the Reporting Persons may be deemed to beneficially own (i.e., 24,881,200). Each Class A Common Share is entitled to one vote, and each Class B Common Share is entitled to ten votes. As set forth in the Proxy Statement, there were 65,638,557 Class B Common Shares outstanding, including the 24,881,200 Class B Common Shares that may be deemed to be beneficially owned by the Reporting Persons. The percentage reported does not reflect the ten-for-one voting power of the Class B Common Shares because pursuant to Rule 13d-3(d), these shares are treated as converted into Class A Common Shares for the purposes of this Schedule 13D/A.

CUSIP No. 26853A100

 

1.		NAMES OF REPORTING PERSONS:   Carolyn Kindle Betz
2.		CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (See Instructions): a.  ☐        b.  ☒
3.		SEC USE ONLY:
4.		SOURCE OF FUNDS (See Instructions):   OO
5.		CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e):  ☐
6.		CITIZENSHIP OR PLACE OF ORGANIZATION:   United States
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH				7.		SOLE VOTING POWER:   0 shares
				8.		SHARED VOTING POWER:   25,986,4717 shares
				9.		SOLE DISPOSITIVE POWER:   0 shares
				10.		SHARED DISPOSITIVE POWER:   25,986,4717 shares
11.		AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON:   25,986,4717 shares
12.		CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (See Instructions)  ☐
13.		PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11):   26.2%8
14.		TYPE OF REPORTING PERSON (See Instructions):   IN

 

 

⁷ Consists of (i) 18,694,003 Class B Common Shares, 37,501 Class A Common Shares and 1,067,770 Class A Common Shares represented by ADSs held of record by Crawford, which is controlled by the Reporting Persons filing this Schedule 13D/A and which are beneficially held by the Reporting Persons, (ii) 3,030,839 Class B Common Shares held of record by ICG Holdco 1, which is a wholly-owned subsidiary of Crawford and which are beneficially held by the Reporting Persons, and (iii) 3,156,358 Class B Common Shares held of record by ICG Holdco 2, which is a wholly-owned subsidiary of Crawford and which are beneficially held by the Reporting Persons. Each Class B Common Share is convertible at any time into a Class A Common Share on a share-for-share basis. This number does not include the GS Subject Shares described in Item 4 of this Schedule 13D/A.

⁸ Based on the quotient obtained by dividing: (a) the aggregate number of Class B Common Shares and Class A Common Shares beneficially owned by the Reporting Persons as set forth in Row 8 by (b) the sum of (i) 74,279,018 Class A Common Shares outstanding as stated by in the Proxy Statement and (ii) the number of Class B Common Shares beneficially owned by the Reporting Persons, or as to which the Reporting Persons may be deemed to beneficially own (i.e., 24,881,200). Each Class A Common Share is entitled to one vote, and each Class B Common Share is entitled to ten votes. As set forth in the Proxy Statement, there were 65,638,557 Class B Common Shares outstanding, including the 24,881,200 Class B Common Shares that may be deemed to be beneficially owned by the Reporting Persons. The percentage reported does not reflect the ten-for-one voting power of the Class B Common Shares because pursuant to Rule 13d-3(d), these shares are treated as converted into Class A Common Shares for the purposes of this Schedule 13D/A.

CUSIP No. 26853A100

 

1.		NAMES OF REPORTING PERSONS:   Jack Taylor Family Voting Trust U/A/D 4/14/99
2.		CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (See Instructions): a.  ☐        b.  ☒
3.		SEC USE ONLY:
4.		SOURCE OF FUNDS (See Instructions):   OO
5.		CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e):  ☐
6.		CITIZENSHIP OR PLACE OF ORGANIZATION:   Missouri
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH				7.		SOLE VOTING POWER:   0 shares
				8.		SHARED VOTING POWER:   25,986,4719 shares
				9.		SOLE DISPOSITIVE POWER:   0 shares
				10.		SHARED DISPOSITIVE POWER:   25,986,4719 shares
11.		AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON:   25,986,4719 shares
12.		CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (See Instructions)  ☐
13.		PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11):   26.2%10
14.		TYPE OF REPORTING PERSON (See Instructions):   OO

 

 

⁹ Consists of (i) 18,694,003 Class B Common Shares, 37,501 Class A Common Shares and 1,067,770 Class A Common Shares represented by ADSs held of record by Crawford, which is controlled by the Reporting Persons filing this Schedule 13D/A and which are beneficially held by the Reporting Persons, (ii) 3,030,839 Class B Common Shares held of record by ICG Holdco 1, which is a wholly-owned subsidiary of Crawford and which are beneficially held by the Reporting Persons, and (iii) 3,156,358 Class B Common Shares held of record by ICG Holdco 2, which is a wholly-owned subsidiary of Crawford and which are beneficially held by the Reporting Persons. Each Class B Common Share is convertible at any time into a Class A Common Share on a share-for-share basis. This number does not include the GS Subject Shares described in Item 4 of this Schedule 13D/A.

¹⁰ Based on the quotient obtained by dividing: (a) the aggregate number of Class B Common Shares and Class A Common Shares beneficially owned by the Reporting Persons as set forth in Row 8 by (b) the sum of (i) 74,279,018 Class A Common Shares outstanding as stated in the Proxy Statement and (ii) the number of Class B Common Shares beneficially owned by the Reporting Persons, or as to which the Reporting Persons may be deemed to beneficially own (i.e., 24,881,200). Each Class A Common Share is entitled to one vote, and each Class B Common Share is entitled to ten votes. As set forth in the Proxy Statement, there were 65,638,557 Class B Common Shares outstanding, including the 24,881,200 Class B Common Shares that may be deemed to be beneficially owned by the Reporting Persons. The percentage reported does not reflect the ten-for-one voting power of the Class B Common Shares because pursuant to Rule 13d-3(d), these shares are treated as converted into Class A Common Shares for the purposes of this Schedule 13D/A.

CUSIP No. 26853A100

 

This Amendment No. 6 (this “Amendment No. 6”) amends and supplements the Schedule 13D originally filed with the Securities and Exchange Commission on December 1, 2014 by the Reporting Persons with respect to the Class A Common Shares of eHi Car Services Limited, a company organized under the laws of the Cayman Islands (the “Issuer” or the “Company”), beneficially owned by the Reporting Persons, as amended by Amendment No. 1 filed with the Securities and Exchange Commission on June 5, 2015, Amendment No. 2 filed with the Securities and Exchange Commission on December 22, 2017, Amendment No. 3 filed with the Securities and Exchange Commission on April 10, 2018, Amendment No. 4 filed with the Securities and Exchange Commission on May 7, 2018 and Amendment No. 5 filed with the Securities and Exchange Commission on August 14, 2018 (the “Schedule 13D”). Except as amended or supplemented by this Amendment No. 6, all other information in the Schedule 13D is as set forth therein. Capitalized terms used in this Amendment No. 6 and not otherwise defined shall have the meanings ascribed to them in the Schedule 13D.

ITEM 1. SECURITY AND ISSUER

This Schedule 13D/A relates to the Class A Common Shares of the Issuer. The address of the principal executive offices of the Issuer is Unit 12/F, Building No. 5, Guosheng Center, 388 Daduhe Road, Shanghai, 200062, People’s Republic of China.

CUSIP No. 26853A100

 

ITEM 2. IDENTITY AND BACKGROUND

 

(a) (b)		This Schedule 13D/A is being jointly filed by the following persons: the Jack Taylor Family Voting Trust U/A/D 4/14/99, a trust organized under the laws of the State of Missouri (the “Trust”); and Andrew C. Taylor, Jo Ann T. Kindle, Christine B. Taylor and Carolyn Kindle Betz, as voting trustees under the Jack Taylor Family Voting Trust U/A/D 4/14/99. Collectively, such group is referred to herein as the “Reporting Persons.” The shares covered by this Schedule 13D/A are held of record by The Crawford Group, Inc., a Missouri corporation (“Crawford”), which is controlled by the Reporting Persons, and wholly-owned subsidiaries of Crawford. The Reporting Persons entered into a Joint Filing Agreement dated December 1, 2014, a copy of which was filed as Exhibit 99.1 to the original Schedule 13D and which is incorporated by reference herein, pursuant to which the Reporting Persons agreed to jointly file the Schedule 13D, and amendments thereto.
		The Trust was established by Jack Taylor, the founder of Crawford. The individual Reporting Persons share voting and investment power with respect to the Trust.
		The principal address of each of the Reporting Persons is 600 Corporate Park Drive, St. Louis, Missouri 63105.
(c)		All of the individual Reporting Persons are employed by Crawford at its principal place of business, 600 Corporate Park Drive, St. Louis, Missouri 63105, as follows: Andrew C. Taylor, Executive Chairman, Jo Ann T. Kindle, Vice President, Christine B. Taylor, Senior Vice President and Assistant Secretary, and Carolyn Kindle Betz, Vice President and Assistant Secretary.
(d)-(e)		None of the Reporting Persons have, during the past five years, been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors), or was a party to a civil proceeding of a judicial or administrative body of competent jurisdiction as a result of which such person was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws.
(f)		Each of the individual Reporting Persons is a citizen of the United States.

ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION

Item 3 is hereby supplemented and amended, as applicable, with the following:

The Reporting Persons anticipate that, at the price of US$12.25 per ADS, or US$6.125 per share set forth in the Amended and Restated Merger Agreement (as defined below), approximately US$527.92 million will be required as cash contributions forming part of the total equity commitment to be made by the investors (under the Amended and Restated Interim Investors Agreement (as defined below)) for the merger, assuming no exercise of dissenters’ rights by shareholders of the Company.

Item 4 of this Amendment No. 6 is incorporated herein by reference.

ITEM 4. PURPOSE OF TRANSACTION

Item 4 of the Schedule 13D is hereby supplemented and amended, as applicable, by the following:

Amended and Restated Agreement and Plan of Merger

On February 18, 2019, Ctrip Investment Holding Ltd. (“Ctrip”), C-Travel International Limited, Ctrip.com International, Ltd., Ocean General Partners Limited, Ocean Voyage L.P., Ocean Imagination L.P., and CDH Car Rental Service Limited (together, the “Ctrip/Ocean Parties”) joined with certain members of the original Consortium to form a new group which, following completion and as a result of the consummation of the merger (the “Merger”) pursuant to the Amended and Restated Merger Agreement (as defined below), will own and control 100% of the Company (such group, not including the Exiting Investors (as defined below), the “Reconstituted Consortium”).

On February 18, 2019, the Issuer entered into an Amended and Restated Agreement and Plan of Merger (the “Amended and Restated Merger Agreement”), which provides, among other things, for the Common Shares and ADSs of the Company to be converted into the right to receive US$6.125 in cash per Class A or Class B Common Share or US$12.25 in cash per ADS (less a US$0.05 cancellation fee per ADS), in each case without interest and net of any applicable withholding taxes, other than (i) Rollover Shares (as defined in the Amended and Restated Contribution Agreement (as defined below)) to be contributed by the Amended Investor Group (as defined below), (ii) Common Shares held by the Parent, Holdco, the Issuer or their subsidiaries, and (iii) Common Shares held by shareholders who validly exercise their rights to dissent (which will be cancelled and will entitle the former holders thereof to receive the fair value thereon in accordance with such holder’s dissenters’ rights under the Cayman Islands Companies Law).

CUSIP No. 26853A100

 

As a condition to Parent’s and Merger Sub’s willingness to enter into the Amended and Restated Merger Agreement, concurrently with the execution and delivery of the Amended and Restated Merger Agreement, the following additional agreements were executed and delivered by Crawford and the other parties thereto:

 

•

A Termination Agreement (the “Termination Agreement”) by and among Redstone, Baring SPV, the Baring Funds, Crawford, Horizon, Dongfeng, Holdco, Midco, Parent, Merger Sub, MBKP and MBKP SPV, pursuant to which Redstone, Baring SPV and the Baring Funds (the “Exiting Investors”) exited the Consortium and the Interim Investors Agreement, the Contribution and Support Agreement and each equity commitment and limited guaranty executed by the Exiting Investors was terminated solely with respect to the Exiting Investors.

 

•

An amended and restated Interim Investors Agreement (the “Amended and Restated Interim Investors Agreement”), which replaced the Interim Investors Agreement in its entirety, and pursuant to which certain of the Ctrip/Ocean Parties, ICG Holdco 1 and ICG Holdco 2 were added as “Investors” under the agreement (the “Amended Investor Group”).

 

•

An amended and restated Contribution and Support Agreement (the “Amended and Restated Contribution and Support Agreement”), which replaced the Contribution and Support Agreement in its entirety, and pursuant to which certain of the Ctrip/Ocean Parties, ICG Holdco 1 and ICG Holdco 2 were added as “Rollover Shareholders” under the agreement.

 

•

An amended and restated letter agreement in favor of Parent (the “Amended and Restated Equity Commitment Letter”), which replaced the Equity Commitment Letter in its entirety.

 

•

An amended and restated limited guarantee (the “Amended and Restated Limited Guarantee”), which replaced the Limited Guarantee in its entirety.

 

•

A Global Settlement Agreement (the “Settlement Agreement”) by and among the members of the Amended Investor Group, Holdco, Midco, Parent and Merger Sub, pursuant to which certain disputes involving the Ctrip/Ocean Parties that predated the Ctrip/Ocean Parties’ joining the Reconstituted Consortium were settled.

The Amended and Restated Merger Agreement remains subject to the approval of the Company’s shareholders and various other closing conditions. If the Merger is consummated, the ADSs will no longer be traded on the New York Stock Exchange and the registration of the ADSs under Section 12 of the Securities Exchange Act of 1934, as amended, will be terminated.

GS Purchase Agreement

GS Car Rental HK Limited and GS Car Rental HK Parallel Limited (the “GS Sellers”) delivered to Crawford, among others, a First Offer Notice dated April 25, 2018 (the “GS Notice”) stating that the GS Sellers proposed to sell all of their shares in the Issuer, consisting of 9,081,665 Class B Common Shares (the “GS Subject Shares”), in a single cash sale, pursuant to the IRA, and offering Crawford the opportunity to purchase such shares, or a pro rata portion of such shares, in accordance with the terms set forth in the GS Notice. Crawford notified the GS Sellers that it was accepting the offer by delivering a First ROFO Acceptance Notice (the “GS Acceptance”) in compliance with the terms of the GS Notice and the IRA.

Following the GS Acceptance, a dispute arose between Crawford and the GS Sellers regarding their respective rights and obligations under the right of first offer provisions of the IRA.

For purposes of settling the dispute, on March 14, 2019, Holdco, the GS Sellers, Crawford and Ctrip entered into a Share Purchase Agreement (the “GS Purchase Agreement”), pursuant to which: (i) Holdco agreed to purchase all of the GS Subject Shares from the GS Sellers for $7.25 per share (the “Per Share GS Purchase Price”) immediately prior to, and conditioned upon the occurrence of, the Merger; (ii) the GS Sellers agreed to vote, or cause to be voted, the GS Subject Shares in favor of the authorization and approval of the Amended and Restated Merger Agreement and the transactions contemplated thereby, including the Merger (and against any alternative transaction); and (iii)

CUSIP No. 26853A100

 

upon such purchase, the parties agreed to mutually release any claims arising out of the dispute. The Per Share GS Purchase Price is subject to increase by the amount of the applicable premium if, prior to completion of the Merger, the merger consideration to be paid in the Merger is increased above US$7.25 per Common Share or US$14.50 per ADS, or if, during the period beginning on January 2, 2018 and ending on the date of the Merger, Holdco, Crawford or Ctrip Investment shall have acquired Common Shares or ADSs for a price greater than US$7.25 per Share or US$14.50 per ADS. If the GS Purchase Agreement is terminated before the sale of the GS Subject Shares, the GS Subject Shares may be deemed to be beneficially owned by the Reporting Persons as a result of the GS Acceptance; however, Crawford is not reporting beneficial ownership of the GS Subject Shares in this Amendment No. 6. The GS Sellers have a right to terminate the GS Purchase Agreement if the Merger does not occur on or before May 31, 2019.

General

The Reporting Persons reserve the right to change their plans and intentions in connection with any of the actions discussed in this Item 4 and may, from time to time, formulate other purposes, plans or proposals regarding the Issuer or any other actions that could involve one or more of the types of transactions or have one or more of the results described in paragraphs (a) through (j) of Item 4 of Schedule 13D. Any action taken by the Reporting Persons may be effected at any time or from time to time, subject to any applicable limitations imposed thereon by any applicable laws and the terms of the agreements referenced herein.

Consummation of the transactions contemplated by the Amended and Restated Merger Agreement and/or the GS Purchase Agreement could result in one or more of the actions specified in clauses (a) through (j) of Item 4 of Schedule 13D, including the acquisition or disposition of securities of the Issuer, a merger or other extraordinary transaction involving the Issuer, a change to the board of directors of the Issuer (as the surviving company in the Merger) to consist solely of persons to be designated by the Reconstituted Consortium, and a change in the Issuer’s memorandum and articles of association to reflect that the Issuer would become a privately held company.

Upon consummation of the transactions contemplated by the Amended and Restated Merger Agreement, the Series D Share Purchase Agreement, dated March 26, 2012, among the Issuer and certain of its shareholders, including Crawford would terminate.

The information disclosed in this Item 4 does not purport to be complete and is qualified in its entirety by reference to the Schedule 13D, as amended hereby, and the agreements referenced therein, copies of which are referenced or attached hereto, and which are incorporated herein by reference in their entirety.

ITEM 5. INTEREST IN SECURITIES OF THE ISSUER

 

(a)-(b)		Crawford is the record holder of 18,694,003 Class B Common Shares, 37,501 Class A Common Shares and 1,067,770 Class A Common Shares represented by ADSs. ICG Holdco 1, a wholly-owned subsidiary of Crawford, is the record holder of 3,030,839 Class B Common Shares. ICG Holdco 2, a wholly-owned subsidiary of Crawford, is the record holder of 3,156,358 Class B Common Shares. Together, these shares represent approximately 26.2% of the outstanding Class A Common Shares (assuming the conversion of the Class B Common Shares beneficially owned by the Reporting Persons into Class A Common Shares).11 The Class B Common Shares are convertible at any time into Class A Common Shares on a share-for-share basis. The voting and investment power over the shares covered by this Schedule 13D/A is shared by the Reporting Persons.   The Reporting Persons may be deemed to be a “group” with the other Rollover Shareholders and their respective affiliates pursuant to Section 13(d) of the Act as a result of their actions in respect of the transactions contemplated by the Amended and Restated Merger Agreement. However, the Reporting Persons expressly disclaim beneficial ownership for all purposes of the Common Shares and ADSs beneficially owned (or deemed to be beneficially owned) by the Rollover Shareholders, other than the shares held of record by Crawford and its subsidiaries which are the subject of this Schedule 13D/A filing. The Reporting Persons are only responsible for the information contained in this Schedule 13D/A and assume no responsibility for information contained in any other Schedule 13D (or any amendment thereto) filed by any other Rollover Shareholder or any of its affiliates.
(c)		None.

 

 

¹¹ Based on the quotient obtained by dividing: (a) the aggregate number of Class B Common Shares and Class A Common Shares beneficially owned by the Reporting Persons as set forth in Row 8 of the cover pages by (b) the sum of (i) 74,279,018 Class A Common Shares outstanding as stated in the Proxy Statement and (ii) the number of Class B Common Shares beneficially owned by the Reporting Persons, or as to which the Reporting Persons may be deemed to beneficially own (i.e., 24,881,200). Each Class A Common Share is entitled to one vote, and each Class B Common Share is entitled to ten votes. As set forth in the Proxy Statement, there were 65,638,557 Class B Common Shares outstanding, including the 24,881,200 Class B Common Shares that may be deemed to be beneficially owned by the Reporting Persons. The percentage reported does not reflect the ten-for-one voting power of the Class B Common Shares because pursuant to Rule 13d-3(d), these shares are treated as converted into Class A Common Shares for the purposes of this Schedule 13D/A.

CUSIP No. 26853A100

 

ITEM 6.

CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT TO SECURITIES OF THE ISSUER

Item 6 of the Schedule 13D is hereby supplemented and amended, as applicable, by the following:

Pursuant to the Termination Agreement, the Exiting Investors exited the Reconstituted Consortium and the Interim Investors Agreement, the Contribution and Support Agreement and each equity commitment and limited guaranty executed by the Exiting Investors was terminated solely with respect to the Exiting Investors.

Pursuant to the Amended and Restated Interim Investors Agreement, the parties thereto agreed to certain terms and conditions governing the management and actions of Holdco, Midco, Parent and Merger Sub, as well as the relationship among the members of the Amended Investor Group and their obligations with respect to the Merger and the other transactions contemplated by the Amended and Restated Merger Agreement.

Pursuant to the Amended and Restated Contribution and Support Agreement, Crawford agreed, among other things, to contribute its Common Shares to Holdco in exchange for equity in Holdco immediately prior to the Closing, in accordance with the terms thereof, and to vote all its Common Shares in favor of approval of the Amended and Restated Merger Agreement and the transactions contemplated thereby, and against alternative transaction, subject to the terms and conditions thereof.

Pursuant to the Amended and Restated Equity Commitment Letter, Crawford agreed, among other things, to make a direct or indirect equity investment in Parent immediately prior to the Closing, subject to the terms and conditions set forth therein.

Pursuant to the Amended and Restated Limited Guarantee, Crawford guaranteed certain obligations of Parent to the Issuer in connection with the merger and the other transactions contemplated by the Amended and Restated Merger Agreement.

Pursuant to the GS Purchase Agreement, Holdco agreed to purchase the GS Subject Shares from the GS Sellers immediately prior to, and conditioned upon the occurrence of, the Merger, and Crawford, Ctrip, Holdco and the GS Sellers agreed to mutually release any claims related to the GS Subject Shares effective upon the closing of such purchase.

The foregoing descriptions of the agreements named above do not purport to be a complete description of the terms thereof and are qualified in their entirety by reference to the full text of the agreements, which are incorporated herein as exhibits hereto.

 

ITEM 7.

MATERIAL TO BE FILED AS EXHIBITS

Item 7 of the Schedule 13D is hereby supplemented by adding the following:

 

Exhibit 99.14		Amended and Restated Interim Investors Agreement dated February 18, 2019 among Crawford, the other Investors, Holdco, Midco, Parent and Merger Sub*
Exhibit 99.15		Amended and Restated Contribution and Support Agreement dated February 18, 2019 among Crawford, the other Rollover Shareholders, Holdco, Midco and Parent*
Exhibit 99.16		Amended and Restated Equity Commitment Letter dated February 18, 2019 between Crawford and Holdco*
Exhibit 99.17		Amended and Restated Limited Guarantee dated February 18, 2019 by Crawford in favor of the Issuer*
Exhibit 99.18		Termination Agreement dated February 18, 2019 among Crawford, the other original Investors, Holdco, Midco, Parent and Merger Sub*
Exhibit 99.19		Share Purchase Agreement dated March 14, 2019 among Holdco, the GS Sellers, Crawford and Ctrip*

*Filed herewith.

CUSIP No. 26853A100

 

After reasonable inquiry and to the best of my knowledge and belief, each of the undersigned certifies that the information set forth in this statement is true, complete and correct.

Dated: March 14, 2019

 

 

Exhibit 99.14

EXECUTION VERSION

AMENDED AND RESTATED INTERIM INVESTORS AGREEMENT

This Amended and Restated Interim Investors Agreement (this “Agreement”) is made as of February 18, 2019 by and among MBK Partners Fund IV, L.P. (“MBKP”), The Crawford Group, Inc. (“Crawford Inc.” and, together with MBKP, the “Original Sponsors), Ocean Imagination L.P., a Cayman Islands exempted limited partnership (the “Ocean Sponsor”), and, together with the Original Sponsors and any New Sponsor (as defined below), the “Sponsors”), L & L Horizon, LLC, a Delaware limited liability company (“Horizon”), Ctrip Investment Holding Ltd., a Cayman Islands exempted company (“Ctrip”), CDH Car Rental Service Limited, a British Virgin Islands business company (“CDH Car” and, together with the Ocean Sponsor, “Ocean”, and the Ocean Sponsor, CDH Car and Ctrip, collectively, the “Subsequent Investors”), ICG Holdings 1, LLC, a Delaware limited liability company and a wholly-owned subsidiary of Crawford Inc. (“ICG Holdco 1”), ICG Holdings 2, LLC, a Delaware limited liability company and a wholly-owned subsidiary of Crawford Inc. (“ICG Holdco 2” and, together with ICG Holdco 1 and Crawford Inc., “Crawford”), Dongfeng Asset Management Co. Ltd., a limited liability company formed under the laws of the People’s Republic of China (“Dongfeng” and, together with Crawford, Horizon, Ctrip, CDH Car and any New Rollover Shareholder (as defined below) the “Rollover Shareholders” and Dongfeng, Horizon and the Original Sponsors, collectively, the “Original Investors”, and the Rollover Shareholders and the Sponsors, each an “Investor” and collectively, the “Investors”), Teamsport Topco Limited, a Cayman Islands exempted company (“Holdco”), Teamsport Midco Limited, a Cayman Islands exempted company and a wholly-owned subsidiary of Holdco (“Midco”), Teamsport Parent Limited, a Cayman Islands exempted company and a wholly-owned subsidiary of Midco (“Parent”), and Teamsport Bidco Limited, a Cayman Islands exempted company and a wholly-owned subsidiary of Parent (“Merger Sub”). The Investors, Holdco, Midco, Parent and Merger Sub are hereinafter collectively referred to as the “Parties”, and individually, a “Party”. Capitalized terms used but not defined herein shall have the meanings given thereto in the Merger Agreement (as defined below) unless otherwise specified herein.

RECITALS

WHEREAS, concurrently with the execution of this Agreement, Parent, Merger Sub and eHi Car Services Limited, a Cayman Islands exempted company (the “Company”), are entering into an Amended and Restated Agreement and Plan of Merger, dated as of the date hereof (as it may be further amended, supplemented or otherwise modified from time to time, the “Merger Agreement”), pursuant to which Merger Sub will be merged with and into the Company (the “Merger”), with the Company becoming the surviving entity and a wholly-owned subsidiary of Parent.

WHEREAS, on the date hereof, each of Horizon, Crawford, Dongfeng, Ctrip, CDH Car, Holdco, Midco and Parent have executed an Amended and Restated Contribution and Support Agreement (the “Contribution and Support Agreement” ), pursuant to which each Rollover Shareholder has agreed, subject to the terms and conditions set forth therein and among other obligations, (a) to the contribution of all its Shares to Holdco in exchange for newly issued ordinary shares of Holdco immediately prior to the Closing in accordance with the terms thereof, and (b) to vote all of its Securities (as defined in the Contribution and Support Agreement) in favor of the authorization and approval of the Merger Agreement, the Plan of Merger and the Transactions, including the Merger, upon the terms and conditions set forth therein.

WHEREAS, on the date hereof, each Sponsor has entered into a letter agreement in favor of Holdco (each such letter, such Sponsor’s “Equity Commitment Letter”), pursuant to which such Sponsor has agreed, subject to the terms and conditions set forth therein, to make a direct or indirect equity investment in Holdco immediately prior to the Closing in connection with the Transactions.

WHEREAS, on the date hereof, MBKP, Crawford Inc., Horizon, Dongfeng, the Ocean Sponsor and Ctrip have each executed a limited guarantee in favor of the Company with respect to certain obligations of Parent under the Merger Agreement (each, a “Limited Guarantee”).

WHEREAS, MBKP, The Baring Asia Private Equity Fund VI, L.P.1, The Baring Asia Private Equity Fund VI, L.P.2, The Baring Asia Private Equity Fund VI Co-investment L.P., BPEA Teamsport Limited, Crawford Inc., Horizon, Dongfeng, Holdco, Midco, Parent, Merger Sub and RedStone Capital Management (Cayman) Limited entered into an Interim Investors Agreement dated as of April 6, 2018 (the “Original Agreement”), which currently governs the actions of Holdco, Midco, Parent and Merger Sub and the relationship among certain of the Investors with respect to the transactions contemplated by the Original Merger Agreement (the “Original Transactions”).

WHEREAS, on the date hereof, RedStone Capital Management (Cayman) Limited, MBKP, The Baring Asia Private Equity Fund VI, L.P.1, The Baring Asia Private Equity Fund VI, L.P.2, The Baring Asia Private Equity Fund VI Co-investment L.P., BPEA Teamsport Limited, Crawford Inc., Horizon, Dongfeng, Holdco, Midco, Parent, Merger Sub and Fastforward Company Ltd have entered into a Termination Agreement, pursuant to which, among other things, the participation of each of RedStone Capital Management (Cayman) Limited, The Baring Asia Private Equity Fund VI, L.P.1, The Baring Asia Private Equity Fund VI, L.P.2, The Baring Asia Private Equity Fund VI Co-investment L.P. and BPEA Teamsport Limited in the Transactions was terminated.

WHEREAS, pursuant to Section 3.2 of the Original Agreement, the Original Parties (as defined below) wish to amend and restate the Original Agreement in its entirety, as set forth in this Agreement, and the Parties wish to agree to certain terms and conditions that will govern the actions of Holdco, Midco, Parent and Merger Sub and the relationship among the Investors with respect to the Transactions.

NOW, THEREFORE, in consideration of the foregoing recitals and of the mutual agreements and covenant set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties, intending to be legally bound, hereby agree as follows:

 

1.	AGREEMENTS AMONG THE INVESTORS.

1.1    Actions Under the Merger Agreement; Contribution and Support Agreement; Equity Commitment Letters. MBKP and Horizon acting jointly shall have the sole power, authority and discretion to cause (a) Parent and Merger Sub to take any action or refrain from

 

2

taking any action in order to comply with their obligations, satisfy their closing conditions or exercise their rights under the Merger Agreement, including (i) determining that the conditions set forth in Section 7.01 and Section 7.02 of the Merger Agreement (the “Closing Conditions”) have been satisfied or waiving compliance with any agreement or condition in the Merger Agreement, including any Closing Condition, or (ii) terminating, amending or modifying the Merger Agreement and determining to consummate the Merger, and (b) Holdco, Midco, Parent and Merger Sub, as applicable, to take any action or refrain from taking any action in order to comply with their obligations, satisfy their closing conditions or exercise their rights under the Contribution and Support Agreement and the Equity Commitment Letters, as applicable; provided that MBKP and Horizon may not cause Holdco, Midco, Parent or Merger Sub, as applicable, to amend the Merger Agreement, the Contribution and Support Agreement or any Equity Commitment Letter in a way that has an impact on any Investor that is different from the impact on the other Investors in a manner that is materially adverse to such Investor without such Investor’s written consent. Holdco, Midco, Parent and Merger Sub, as applicable, shall not, and the Investors shall not permit Holdco, Midco, Parent or Merger Sub, as applicable, to, determine that any Closing Condition has been satisfied, waive any Closing Condition, terminate, amend or modify the Merger Agreement, the Contribution and Support Agreement or any Equity Commitment Letter, or determine to close the Merger unless such action has been approved in advance in writing by each of MBKP and Horizon. Holdco, Midco, Parent and Merger Sub, as applicable, shall not take any action with respect to the Merger Agreement, the Contribution and Support Agreement or any Equity Commitment Letter, including granting or withholding of waivers or entering into amendments, unless such actions are in accordance with this Agreement. Parent and Merger Sub shall promptly provide each Investor with any notice they receive from the Company under the Merger Agreement.

1.2    Equity Commitment.

(a)    For the avoidance of doubt, Exhibit A hereto sets forth the aggregate equity commitment of each Investor (such Investor’s “Investor Equity Commitment”), which with respect to each Investor, equals (x) the number of Rollover Shares of such Investor (if any) multiplied by the Per Share Merger Consideration, plus (y) the amount of such Investor’s Equity Commitment as defined and set forth in such Investor’s Equity Commitment Letter (if any).

(b)    If and to the extent Horizon determines after the date hereof, after prior consultation with MBKP, that it would be beneficial for one or more additional sponsors to provide additional equity capital for the consummation of the Transactions, each such additional sponsor (a “New Sponsor”) shall (i) execute an adherence agreement to this Agreement in a form mutually agreed by MBKP and Horizon, (ii) execute an equity commitment letter and limited guarantee in substantially the form as the Equity Commitment Letters and Limited Guarantees in respect of the relevant portion of the equity commitment to be provided by such New Sponsor, and upon its execution of such documents, such New Sponsor shall become a “Sponsor”, an “Investor” and a “Party” for purposes of this Agreement, and Exhibit A shall be updated to reflect the Investor Equity Commitment of each Investor, after giving effect to the equity commitment of such New Sponsor.

(c) If and to the extent Horizon determines after the date hereof, after prior consultation with MBKP, that it would be beneficial for one or more additional shareholders of

 

3

the Company to contribute its Shares to Holdco in exchange for newly issued shares of Holdco, each such additional shareholder of the Company (a “New Rollover Shareholder”) shall (A) execute an adherence agreement to this Agreement in a form mutually agreed by MBKP and Horizon, (B) execute a contribution and support agreement in substantially the form as the Contribution and Support Agreement in respect of the relevant portion of the equity commitment to be provided by such New Rollover Shareholder, and upon its execution of such documents, such New Rollover Shareholder shall become a “Rollover Shareholder”, an “Investor” and a “Party” for purposes of this Agreement, and Exhibit A shall be updated to reflect the Investor Equity Commitment of each Investor, after giving effect to the equity commitment of such New Rollover Shareholder.

1.3    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 Party (or its Affiliates) that Parent 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 Authority in connection with the Transactions, including the Merger, this Agreement, the Equity Commitment Letters, the Limited Guarantees, the Contribution and Support Agreement or any other agreement or arrangement to which it 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 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 ordinary 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 Guarantee, the Contribution and Support Agreement or any other agreement or arrangement to which it (or their respective Affiliate) is a party relating to the Transactions, to the extent required by applicable Law or the SEC (or its staff) or by mutual agreement between the Company and Parent. Each of the Investors hereby represents and warrants to Parent as to itself and its Affiliates, as applicable, that, solely with respect to any information supplied by such Party in writing pursuant to this Section 1.3, 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 Shareholders’ 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 Authorities following the time that all of the relevant facts and circumstances of a Party’s involvement in the Transactions are provided to such Governmental Authorities and such Party has had a reasonable amount of time (taking into consideration the status of the applicable Governmental Authority’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 Authority, 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 previous sentence.

 

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1.4    Consummation of the Transactions.

(a)    Subject to the terms and conditions of this Agreement, each of the Parties agrees and undertakes to use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable Law to consummate and make effective as promptly as practicable the transactions contemplated by this Agreement, the Merger Agreement or any other agreement contemplated hereby or thereby.

(b)    In the event that the Closing Conditions are satisfied or waived in accordance with the terms of the Merger Agreement and this Agreement, and Parent and Merger Sub are obligated to consummate the Merger in accordance with the terms of the Merger Agreement, all Investors other than any Failing Investor (the “Closing Investors”) acting unanimously shall have the right to (i) direct Holdco, Midco and Parent, as applicable, to enforce the obligations of such Failing Investor under its Equity Commitment Letter or the Contribution and Support Agreement, as applicable, and/or (ii) terminate the participation in the Transactions of such Failing Investor; provided that such termination shall not affect the rights or remedies of the Closing Investors against such Failing Investor with respect to such breach or threatened breach. If the Closing Investors terminate a Failing Investor’s participation in the Transactions pursuant to the immediately preceding sentence, MBKP shall have the right (but not the obligation) to provide equity financing for the Transactions to replace the amount of such Failing Investor’s Investor Equity Commitment (“Replacement Equity”) (provided that MBKP’s Replacement Equity shall not exceed an amount that, together with MBKP’s Investor Equity Commitment, would result in MBKP holding more than 41.0% of the issued and outstanding equity interests or more than 31.5% of the aggregate voting power in Holdco on a fully-diluted basis as of the Closing without the prior written consent of Horizon (which consent shall be provided by Horizon in the event that Replacement Equity in excess of such amount is required to consummate the Merger and no source of alternative capital is readily available)). To the extent MBKP elects not to or cannot provide Replacement Equity in an aggregate amount equal to such Failing Investor’s Investor Equity Commitment, the Closing Investors acting unanimously may offer one or more other Closing Investors or new investors the opportunity to provide Replacement Equity in an amount equal to the shortfall. A “Failing Investor” is any Investor that (A) breaches its obligation under the Equity Commitment Letter of such Investor to fund the Equity Commitment (as defined therein) or asserts in writing such Investor’s unwillingness to fund such Equity Commitment, or (B) breaches its obligation, if any, under the Contribution and Support Agreement to contribute its Shares to Holdco or asserts in writing such Investor’s unwillingness to perform such obligation.

1.5    Termination Fee and Expenses.

(a)    If (i) the Merger Agreement is terminated pursuant to Section 8.02(a), Section 8.03(a) or Section 8.03(b) thereof, (ii) Parent is required to pay the Parent Termination Fee pursuant to Section 8.06(b) of the Merger Agreement and/or reimburse any expenses of the Company pursuant to the terms of the Merger Agreement, as applicable, and (iii) one of the Investors is a Defaulting Party, then such Defaulting Party shall pay to Parent an amount equal to

 

5

the Parent Termination Fee and such expenses to be reimbursed, as applicable, by wire transfer of same day funds within three (3) Business Days following such termination of the Merger Agreement. If there is more than one Defaulting Party, each Defaulting Party’s obligations under the immediately preceding sentence shall be reduced to its Pro Rata Portion of the Parent Termination Fee and/or such expenses, as applicable. A “Defaulting Party” is an Investor whose failure to perform its obligation under its Equity Commitment Letter (if any), the Contribution and Support Agreement (if party thereto) and/or this Agreement results in the termination of the Merger Agreement pursuant to Section 8.02(a), 8.03(a) or Section 8.03(b) thereof. A Defaulting Party’s “Pro Rata Portion” for purposes of this Section 1.5(a) is a fraction, the numerator of which is the Investor Equity Commitment of such Defaulting Party and the denominator of which is the aggregate Investor Equity Commitments of all Defaulting Parties.

(b)    If the Transactions are not consummated, and one of the Investors is a Breaching Party, then such Breaching Party shall promptly reimburse each other Investor who is not a Breaching Party (each, a “Non-Breaching Party ”) for all of such Non-Breaching Party’s out-of-pocket costs and expenses incurred in connection with the Transactions, including (i) such Non-Breaching Party’s share of the Shared Transaction Expenses and Shared DD Expenses (each as defined below), as applicable, without prejudice to any rights and remedies otherwise available to such Non-Breaching Party. If there is more than one Breaching Party, each Breaching Party’s obligations under the immediately preceding sentence shall be reduced to its Pro Rata Portion of such costs and expenses. A “Breaching Party” is an Investor, the breach by such Investor or by an Affiliate of such Investor, in each case, of the obligations of such Investor or such Affiliate of such Investor under its Equity Commitment Letter (if any), the Contribution and Support Agreement (if party thereto) and/or this Agreement results in the failure of the Transactions to be consummated.

(c)    If the Transactions are not consummated (and Section 1.5(b) does not apply), the Investors agree that (i) all Original Shared Transaction Expenses (as defined below) shall be borne by the Applicable Investors based on their respective Applicable TE Pro Rata Portion (as defined below) of such Original Shared Transaction Expenses, (ii) all Shared DD Expenses shall be borne by the Applicable Sponsors based on their respective DD Pro Rata Portion (as defined below) of such Shared DD Expenses, (iii) all Subsequent Shared Transaction Expenses (as defined below) shall be borne by the Applicable Investors based on their respective Applicable TE Pro Rata Portion of such Subsequent Shared Transaction Expenses, (iv) all Subsequent Investor Transaction Expenses (as defined below) shall be borne equally by the Applicable Investors and (v) all other fees and expenses of advisers or consultants retained solely by an Investor or Investors without the mutual agreement of each other Investor in accordance with the terms herein shall be borne solely by such Investor or Investors, as applicable.

(i)    “Applicable Investors” means (A) with respect to Original Shared Transaction Expenses, the Original Investors, any New Sponsors and any New Rollover Shareholders, (B) with respect to Subsequent Shared Transaction Expenses and any remaining amounts in respect of the Company Termination Fee contemplated by Section 1.5(e) to be allocated among the Investors, the Investors, and (C) with respect to Subsequent Investor Transaction Expenses and any remaining amounts in respect of the Company Termination Fee contemplated by Section 1.5(e) to be allocated among the Subsequent Investors, the Subsequent Investors.

 

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(ii)    “Original Shared Transaction Expenses” means, collectively, all fees and expenses incurred on or prior to the date of this Agreement in connection with the Original Transactions and the Transactions (A) by the Joint Advisers (as defined below), except to the extent incurred solely for the benefit of one Investor, and (B) otherwise for the benefit of the Original Investors as mutually agreed in writing by MBKP and Horizon.

(iii)    “Shared Transaction Expenses” means, collectively, Original Shared Transaction Expenses and Subsequent Shared Transaction Expenses.

(iv)    “Subsequent Shared Transaction Expenses” means, collectively, all fees and expenses incurred after the date of this Agreement in connection with the Transactions (A) by the Joint Advisers (as defined below), except to the extent incurred solely for the benefit of one Investor, and (B) otherwise for the benefit of the Investors as mutually agreed in writing by MBKP and Horizon.

(v)    “Subsequent Investor Transaction Expenses” means, collectively, without duplication, all fees and expenses incurred by advisers (the “Applicable Subsequent Investor Advisors”) retained by the Subsequent Investors prior to the date of this Agreement in connection with (A) the Transactions and (B) the transactions contemplated by the Ocean/Ctrip Competing Transaction (as defined below) as further described on Schedule 1 hereto.

(vi)    “TE Pro Rata Portion” means, with respect to an Applicable Investor, a fraction, the numerator of which shall be the Investor Equity Commitment of such Applicable Investor, and the denominator of which shall be the aggregate Investor Equity Commitments of all Applicable Investors, in each case, at the time of the determination thereof.

(vii)    “Applicable Sponsors” means the Sponsors, other than the Ocean Sponsor.

(viii)    “Shared DD Expenses” means, collectively, all fees and expenses incurred by the Applicable Sponsors in respect of Joint DD Advisers or otherwise for the benefit of the Applicable Sponsors as agreed in writing by the Applicable Sponsors in connection with the conducting of due diligence on the Company for purposes of the Original Transactions and the Transactions (the “Due Diligence”).

(ix)    “DD Pro Rata Portion” means, with respect to an Applicable Sponsor, a fraction, the numerator of which shall be such Sponsor’s Investor Equity Commitment, and the denominator of which shall be the aggregate Investor Equity Commitments of all Applicable Sponsors, in each case, at the time of the determination thereof.

(d)    Upon consummation of the Transactions, Holdco, Midco and Parent shall, or shall cause the Surviving Company to, reimburse the Investors for, or pay on behalf of the Investors, as the case may be, the Shared Transaction Expenses, the Shared DD Expenses and the Subsequent Investor Transaction Expenses, as applicable, which Shared Transaction Expenses, Shared DD Expenses and Subsequent Investor Transaction Expenses shall be settled in cash at the time of the Closing if reasonably practicable from the aggregate equity financing proceeds in connection with the Transactions.

 

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(e)    Any termination, break-up, reimbursement or other fees or amounts (including any Company Termination Fee) payable to Holdco, Midco, Parent or Merger Sub by the Company pursuant to the Merger Agreement shall be used to pay the Shared Transaction Expenses, and any remaining amount shall be allocated among the Investors in proportion to their respective Applicable TE Pro Rata Portions; provided that (i) the Applicable Sponsors’ aggregate share of such remaining amount shall first be used to pay the Shared DD Expenses and any remaining amount thereafter shall then be allocated among the Applicable Sponsors in accordance with their respective DD Pro Rata Portions, and (ii) the Subsequent Investors’ aggregate share of such remaining amount shall first be used to pay the Subsequent Investor Transaction Expenses and any remaining amount thereafter shall then be allocated among the Subsequent Investors’ in accordance with their respective Applicable TE Pro Rata Portions.

(f)    Notwithstanding anything to the contrary in this Agreement, to the extent that the Limited Guarantee of an Investor is enforced and neither such Party nor any of its Affiliates (other than Parent, Holdco, Midco or Merger Sub) is a Defaulting Party, the Defaulting Party (or Defaulting Parties, as applicable) shall promptly pay (or reimburse, as applicable) the amount of the Obligations (as defined in such Limited Guarantee) (or its applicable portion of the Obligations in the case of more than one Defaulting Party) that is payable thereunder directly to such Investor (i.e., the non-Defaulting Party), in lieu of payment (or reimbursement, as applicable) to Merger Sub as otherwise required under such Limited Guarantee and by this Agreement.

(g)    Each Investor shall be responsible for its own Taxes and related Tax obligations arising from the Original Transactions and the Transactions (including Tax filings, payments and other obligations). The Investors shall cooperate with the Surviving Company in fulfilling the Surviving Company’s Tax withholding, reporting, registration or similar obligations, if any, in connection with the Transactions.

(h)    Notwithstanding anything herein to the contrary, each Investor acknowledges, and agrees to, the covenants and agreements set forth on Schedule 2.

1.6    Appointment of Advisers.

(a)    The Parties acknowledge and agree that the advisers listed on Schedule 3 hereto (the “Joint Advisers”) have been retained in connection with the Original Transactions and the Transactions and the fees and expenses of the Joint Advisers (other than any fees or expenses related to the Due Diligence) shall be treated as Original Shared Transaction Expenses, Subsequent Shared Transaction Expenses or Shared Transaction Expenses, as applicable, and reimbursable in accordance with Section 1.5. If the Investors wish to jointly retain any additional adviser or consultant (other than the Joint Advisers) in connection with the Transactions the fees and expenses of which are to be treated as Shared Transaction Expenses, such retention shall be subject to each Investor’s prior written consent, and each Investor shall confirm in writing prior to such retention that the fees and expenses incurred by such adviser or consultant (other than any fees or expenses related to the Due Diligence) will be treated as Subsequent Shared Transaction Expenses and reimbursable in accordance with Section 1.5.

 

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(b)    The Applicable Sponsors acknowledge and agree that the advisers listed on Schedule 4 hereto (the “Joint DD Advisers”) have been retained in connection with the Due Diligence and the fees and expenses of the Joint DD Advisers as they relate to the Due Diligence shall be treated as Shared DD Expenses and reimbursable pursuant to Section 1.5. If the Applicable Sponsors wish to jointly retain any additional adviser or consultant (other than the Joint DD Advisers) in connection with the Due Diligence, such retention shall be subject to each Applicable Sponsor’s prior written consent, and each Applicable Sponsor shall confirm in writing prior to such retention that the fees and expenses incurred by such adviser or consultant as they relate to the Due Diligence will be treated as Shared DD Expenses and reimbursable pursuant to Section 1.5.

(c)    Other than the Joint Advisers, Joint DD Advisers and Applicable Subsequent Investor Advisors, as applicable, if a Party requires separate representation in connection with specific issues arising out of the Transactions, such Party may retain other advisers or consultants to advise it; provided that such Party shall (i) provide prior notice to other Parties of such retention and (ii) subject to Sections 1.5(b), (d) and (e), be solely responsible for the fees and expenses of such separate advisers or consultants, unless each Party or each Applicable Sponsor, as applicable, agrees in writing that the fees and expenses incurred by such separate advisers or consultants will be treated as Subsequent Shared Transaction Expenses or Shared DD Expenses, as applicable, and reimbursable pursuant to Section 1.5.

 

2.	REPRESENTATIONS AND WARRANTIES.

2.1    Representations. Each Party, severally and not jointly, hereby represents and warrants to the other Parties that: (a) if such Party is a corporate entity, it has the requisite power and authority to execute, deliver and perform this Agreement (including in respect of any obligations of such Party to cause or procure its Affiliates to take any actions or omit to take any actions pursuant hereto), (b) if such Party is a corporate entity, the execution, delivery and performance of this Agreement by it have been duly authorized by all necessary action on the part of such Party, (c) this Agreement has been duly executed and delivered by such Party and constitutes a valid and binding agreement of such Party enforceable in accordance with the terms hereof, and (d) such Party’s execution, delivery and performance of this Agreement will not violate: (i) if such Party is a corporate entity, any provision of its organizational documents; (ii) any material agreement to which such Party is a party or by which such Party is bound; or (iii) any order, writ, injunction, decree or statute, or any rule or regulation, applicable to such Party.

 

3.	EXCLUSIVITY

3.1    During the period commencing on the date hereof and ending on the date this Agreement is terminated pursuant to Section 4.1 (the “Exclusivity Period”), each Party agrees that it shall (and shall cause its Affiliates to):

(a)    work exclusively with MBKP and Horizon to implement and consummate the Transactions, including the Merger;

(b)    not, and shall not permit its Affiliates or any of its or their respective representatives to, directly or indirectly, (i) propose a Competing Transaction, or seek, solicit,

 

9

initiate, induce, facilitate or encourage (including by way of furnishing any non-public information concerning the Company) inquiries or proposals concerning, or participate in any discussions, negotiations, communications or other activities with any person (other than the other Parties) concerning, or enter into or agree to, a Competing Transaction, (ii) provide any information to any third party with a view to the third party or any other person pursuing or considering to pursue a Competing Transaction, (iii) finance or offer to finance any Competing Transaction, including by offering any equity or debt finance, or contribution of Shares, ADSs or other securities in the Company or provision of a voting agreement, in support of any Competing Transaction, (iv) enter into any written or oral agreement, arrangement or understanding (whether legally binding or not) regarding, or do, anything which is inconsistent with the provisions of this Agreement or the Transactions, including the Merger, (v) Transfer (as defined in the Contribution and Support Agreement) any interest in any Shares or other securities in the Company, in each case, except as expressly contemplated by the Contribution and Support Agreement, (vi) enter into any contract, option or other arrangement or understanding with respect to a Transfer (as defined in the Contribution and Support Agreement) or limitation on voting rights of any Shares (including Shares represented by ADSs) or other securities in the Company, or any right, title or interest thereto or therein, (vii) deposit any Shares, ADSs or other securities in the Company into a voting trust or grant any proxies or enter into a voting agreement, power of attorney or voting trust with respect to any Shares (including Shares represented by ADSs) or other securities in the Company, or (viii) seek, solicit, initiate, encourage, facilitate, induce or enter into any negotiation, discussion, agreement or understanding (whether or not in writing and whether or not legally binding) with any other person regarding the matters described in Section 3.1(b)(i) to Section 3.1(b)(vii);

(c)    immediately cease and terminate, and cause to be ceased and terminated, any discussions, negotiations, communications or other activities with any persons that may be ongoing with respect to any Competing Transaction; and

(d)    promptly notify MBKP and Horizon if it or, to its knowledge, any of its Affiliates or any of its or their respective representatives receives any approach or communication with respect to any Competing Transaction, including the other persons involved and the nature and content of the approach or communication, and provide MBKP and Horizon with copies of any written communication with respect thereto.

3.2    Without limiting the generality of Section 3.1, each Subsequent Investor shall, and shall cause its Affiliates and its and their respective representatives to, (i) immediately cease and terminate, and cause to be ceased and terminated, all discussions, negotiations, agreements, communications and other activities among the Subsequent Investors, their respective Affiliates and their and their Affiliates’ respective representatives, or otherwise with the Company, the Special Committee or any other person, relating to the proposal regarding a Competing Transaction submitted to the Company Board by Ctrip and an Affiliate of Ocean on or about June 29, 2018 (the “Ocean/Ctrip Competing Proposal”) and (ii) promptly, and in any event no later than two (2) Business Days after the date hereof, take any and all actions as may be necessary to publicly withdraw, and make any and all filings with the SEC as may be required under applicable Law in connection with the withdrawal of, the Ocean/Ctrip Competing Proposal.

 

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4.	MISCELLAENOUS.

4.1    Effectiveness; Termination. This Agreement shall become effective on the date hereof and shall terminate (except with respect to Section 1.5 and Section 4) upon the earlier of (x) the Effective Time and (y) the termination of the Merger Agreement pursuant to Article VIII thereof; provided that any liability for failure to comply with the terms of this Agreement shall survive such termination.

4.2    Amendment. This Agreement may be amended or modified and the provisions hereof may be waived, only by an agreement in writing signed by each Investor.

4.3    Severability. If any term or other provision of this Agreement is invalid, illegal or incapable of being enforced by any rule of Law or public policy, all other conditions and provisions of this Agreement shall nevertheless remain in full force and effect so long as the economic or legal substance of the Transactions is not affected in any manner adverse to any Party. 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 a mutually acceptable manner in order that the Transactions be consummated as originally contemplated to the fullest extent possible.

4.4    Remedies. 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.

4.5    Governing Law. This Agreement shall be governed by, and construed in accordance with, the Laws of Hong Kong, without giving effect to any choice of law or conflict of law rules or provisions that would cause the application of the Laws of any jurisdiction other than Hong Kong.

4.6    Dispute Resolution.

(a)    Any disputes, actions and proceedings against any Party or arising out of or in any way relating to this Agreement shall be submitted to the Hong Kong International Arbitration Centre (the “HKIAC”) and resolved in accordance with the Arbitration Rules of the HKIAC in force at the relevant time (the “Rules”) and as may be amended by this Section 4.6(a). The place of arbitration shall be Hong Kong. The official language of the arbitration shall be English and the arbitration tribunal shall consist of three arbitrators (each, an “Arbitrator”). The claimant(s), irrespective of number, shall nominate jointly one Arbitrator; the respondent(s), irrespective of number, shall nominate jointly one Arbitrator; and a third Arbitrator will be nominated jointly by the first two Arbitrators and shall serve as chairman of the arbitration tribunal. In the event the claimant(s) or respondent(s) or the first two Arbitrators shall fail to nominate or agree on the joint nomination of an Arbitrator or the third Arbitrator within the time

 

11

limits specified by the Rules, such Arbitrator shall be appointed promptly by the HKIAC. The arbitration tribunal shall have no authority to award punitive or other punitive-type damages. The award of the arbitration tribunal shall be final and binding upon the disputing parties. Any party to an award may apply to any court of competent jurisdiction for enforcement of such award and, for purposes of the enforcement of such award, the Parties irrevocably and unconditionally submit to the jurisdiction of any court of competent jurisdiction and waive any defenses to such enforcement based on lack of personal jurisdiction or inconvenient forum.

(b)    Notwithstanding the foregoing, the Parties hereby consent to and agree that in addition to any recourse to arbitration as set out in this Section 4.6, any Party may, to the extent permitted under the Laws of the jurisdiction where application is made, seek an interim injunction from a court or other authority with competent jurisdiction and, notwithstanding that this Agreement is governed by the Laws of Hong Kong, a court or authority hearing an application for injunctive relief may apply the procedural Law of the jurisdiction where the court or other authority is located in determining whether to grant the interim injunction. For the avoidance of doubt, this Section 4.6(b) is only applicable to the seeking of interim injunctions and does not restrict the application of Section 4.6(a) in any way.

4.7    Specific Performance. Each Party acknowledges and agrees that the other Parties would be irreparably injured by a breach of this Agreement by it and that money damages alone are an inadequate remedy for actual or threatened breach of this Agreement. Accordingly, each Party shall be entitled to specific performance or injunctive or other equitable relief (without posting a bond or other security) to enforce or prevent any violations of any provision of this Agreement, in addition to all other rights and remedies available at law or in equity to such Party, including the right to claim money damages for breach of any provision of this Agreement.

4.8    Other Agreements. This Agreement, together with the Equity Commitment Letters, the Limited Guarantees and the Contribution and Support Agreement and the other agreements referenced herein, constitutes the entire agreement, and supersedes all prior agreements, understandings, negotiations and statements, both written and oral, among the parties hereto or any of their Affiliates with respect to the subject matter contained herein except for such agreements as are referenced herein which shall continue in full force and effect in accordance with their terms except as being expressly amended, clarified and supplemented herein. In the event of any conflict between the provisions of this Agreement and the provisions of the other agreements as are referenced herein, the provisions of this Agreement shall prevail.

4.9    Assignment. Neither this Agreement nor any rights, obligations or any performance arising under or relating to this Agreement may be assigned or delegated by any Party voluntarily or involuntarily, whether by operation of law or otherwise, without the prior written consent of each of the other Parties, except that this Agreement may be assigned by a Party to its Affiliate; provided that the Party making such assignment shall not be released from its obligations hereunder. Any attempted assignment or delegation in violation of this Section 4.9 shall be void.

4.10    Interpretation. The Section headings contained in this Agreement are inserted for convenience only and will not affect in any way the meaning or interpretation of this Agreement.

 

12

The Parties have participated jointly in the negotiation and drafting of this Agreement. If an ambiguity or question of intent or interpretation arises, this Agreement will be construed as if drafted jointly by the parties and no presumption or burden of proof will arise favoring or disfavoring any Party because of the authorship of any provision of this Agreement. The words such as “herein,” “hereof,” and “hereunder” refer to this Agreement as a whole and not merely to a subdivision in which such words appear unless the context requires otherwise. The word “including,” or any variation thereof means “including, without limitation” and shall not be construed to limit any general statement that it follows to the specific or similar items or matters immediately following it. The word “extent” in the phrase “to the extent” means the degree to which a subject or other thing extends and such phrase shall not mean simply “if.” References to “day” shall mean a calendar day unless otherwise indicated as a “Business Day.”

4.11    Notice. All notices and other communications hereunder shall be in writing in the English language and shall be deemed duly given (a) on the date of delivery if delivered personally, or if by facsimile or e-mail, upon written confirmation of receipt by facsimile or e-mail, or (b) on the first Business Day following the date of dispatch if delivered utilizing a next-day service by a recognized international next-day courier. All notices hereunder shall be delivered to the addresses set forth below (or at such other address for a party as shall be specified in a notice given in accordance with this Section 4.11):

 

(a)

If to MBKP:

MBK Partners IV, L.P.

c/o MBK Partners Management Consulting (Shanghai) Co., Ltd.

Unit 3904, K.Wah Center

1010 Huai Hai M. Road

Shanghai, China

Attention:    Hongfei Yu

                    Lei Han

Facsimile:   +86 21 3401 2999

E-mail:        hongfei.yu@mbkpartnerslp.com

                     lei.han@mbkpartnerslp.com

With a copy (which shall not constitute notice) to:

Weil, Gotshal & Manges LLP

29/F Alexandra House

18 Chater Road

Central, Hong Kong

Attention:   Tim Gardner

                   William Welty

Facsimile:   +852-3015-9354

E-mail:        tim.gardner@weil.com

                    william.welty@weil.com

 

13

(b)

If to Horizon:

L & L Horizon, LLC

Unit 12/F, Building No.5, Guosheng Center

388 Daduhe Road

Shanghai, 200062, China

Attention:        Mr. Ray RuiPing Zhang

Facsimile:        +86 21 5489 1121

E-mail:             xjhsh168@qq.com

With a copy (which shall not constitute notice) to:

Pillar Legal, P.C.

Suite 1419-1420, Far East Building

1101 Pudong South Road, Pudong District

Shanghai 200120, China

Attention:         Greg Pilarowski

E-mail:             greg@pillarlegalpc.com

 

(c)

If to Crawford:

The Crawford Group, Inc.

600 Corporate Park Drive

St. Louis, MO 63105

U.S.A.

Attention:        Pamela M. Nicholson, Chief Executive Officer

Facsimile:        +1 314 512 4070

E-mail:              Pamela.M.Nicholson@ehi.com

With a copy (which shall not constitute notice) to:

The Crawford Group, Inc.

c/o Enterprise Holdings, Inc.

600 Corporate Park Drive

St. Louis, MO 63105

U.S.A.

Attention:        Michael W. Andrew, Senior Vice President and General Counsel

Facsimile:        +1 314 512 5823

E-mail:            Mike.Andrew@ehi.com

 

(d)

If to Dongfeng:

Dongfeng Asset Management Co. Ltd.

Special No.1 DongFeng Road

WuHan Economic&Technical Development Zone

WuHan, HuBei Province, PRC, 430056

Attention:        Zhang Xiao

                         Wang You

E-mail:            zhxiao@dfmc.com.cn

                         wangy@dfmc.com.cn

 

14

(e)

If to Ocean:

Ocean Imagination L.P.

Room 303, 3rd Floor, St. George’s Building

2 Ice House Street

Central, Hong Kong

Attention:            Tianyi Jiang

E-mail:                 tony.jiang@oceanlp.com

With a copy (which shall not constitute notice) to:

Skadden, Arps, Slate, Meagher & Flom

42/F, Edinburgh Tower, The Landmark

15 Queen’s Road Central, Hong Kong

Attention:            Z. Julie Gao

                             Haiping Li

E-mail:                 Julie.Gao@skadden.com

                             Haiping.Li@skadden.com

 

(f)

If to Ctrip:

Ctrip.com International, Ltd.

Building 16, 968 Jinzhong Road

Shanghai, People’s Republic of China

Attention:            Jay Shen

E-mail:                 jie_shen@Ctrip.com

With a copy (which shall not constitute notice) to:

Skadden, Arps, Slate, Meagher & Flom

42/F, Edinburgh Tower, The Landmark

15 Queen’s Road Central, Hong Kong

Attention:            Z. Julie Gao

                             Haiping Li

E-mail:                 Julie.Gao@skadden.com

                             Haiping.Li@skadden.com

 

(g)

If to Holdco, Midco, Parent or Merger Sub:

c/o MBK Partners Management Consulting (Shanghai) Co., Ltd.

Unit 3904, K.Wah Center

1010 Huai Hai M. Road

Shanghai, China

Attention: Hongfei Yu

                  Lei Han

Facsimile: +86 21 3401 2999

E-mail: hongfei.yu@mbkpartnerslp.com

             lei.han@mbkpartnerslp.com

 

15

With a copy (which shall not constitute notice) to:

Weil, Gotshal & Manges LLP

29/F Alexandra House

18 Chater Road

Central, Hong Kong

Attention:       Tim Gardner

                         William Welty

Facsimile:       +852 3015 9354

E-mail:            tim.gardner@weil.com

                         william.welty@weil.com

4.12    Confidentiality.

(a)    Except as permitted under Section 4.13, no Party shall, and each Party shall direct its Affiliates and officers, directors, employees, accountants, consultants, financial and legal advisors, agents and other authorized representatives (such Party’s “Representatives”) not to, disclose any Confidential Information (as defined below) received by it (the “Recipient”) from any other Party (the “Discloser”) to any Third Party, other than to (i) such Party’s Affiliates and Representatives and (ii) subject to Section 1.3, potential New Sponsors and potential New Rollover Shareholders. No Party shall, and each Party shall direct its Affiliates and Representatives not to, use any Confidential Information for any purpose other than for the purposes of giving effect to and performing its obligations under this Agreement or evaluating, negotiating and implementing the Transactions.

(b)    Subject to Section 4.12(c), the Recipient shall, and shall direct its Affiliates and Representatives that receive Confidential Information to, return or destroy (in the Recipient’s sole discretion), upon written request of the Discloser, any Confidential Information which falls within clause (i) of the definition of Confidential Information; provided that with respect to any electronic data that constitutes Confidential Information, the foregoing obligation shall not apply to any electronic data stored on the back-up tapes of the Recipient’s hardware. Notwithstanding the foregoing, the Investors shall be permitted to retain copies of the Confidential Information in order to comply with legal, regulatory or internal policy requirements.

(c)    Each Party acknowledges that, in relation to Confidential Information received from the other Parties, the obligations contained in this Section 4.12 shall continue to apply for a period of 12 months following termination of this Agreement pursuant to Section 4.1, unless otherwise agreed in writing.

(d)    “Confidential Information” includes (i) all written, oral or other information obtained in confidence by one Party from any other Party in connection with this

 

16

Agreement or the Transactions, unless such information (A) is already known to such Party or to others not known by such Party to be bound by a duty of confidentiality, (B) is or becomes publicly available other than through a breach of this Agreement by such Party or its Representatives or (C) is independently developed by such Party or its Representatives without the use of Confidential Information and (ii) the existence or terms of, and any negotiations or discussions relating to, this Agreement and any definitive documentation, including the Merger Agreement.

4.13    Permitted Disclosures. A Party may disclose Confidential Information (a) 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 (b) 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.

4.14    Original Agreement. Each of MBKP, Crawford Inc., Horizon, Dongfeng, Holdco, Midco, Parent and Merger Sub (the “Original Parties”) agrees and confirms that the Original Agreement is hereby amended and restated in its entirety, and is in force and effect only as so amended and restated

4.15    Counterparts. This Agreement may be executed in one or more counterparts and when so executed such counterparts shall constitute a single Agreement. Execution by facsimile or scanned to e-mail format signatures shall be legal, valid and binding.

[Signature pages follow]

 

17

IN WITNESS WHEREOF, each of the undersigned has duly executed this Agreement as of the date first written above

 

 

[Signature Page to A&R Interim Investors Agreement]

 

[Signature Page to A&R Interim Investors Agreement]

 

[Signature Page to Interim Investors Agreement]

 

[Signature Page to Interim Investors Agreement]

 

[Signature Page to Interim Investors Agreement]

 

[Signature Page to Interim Investors Agreement]

 

[Signature Page to Interim Investors Agreement]

 

[Signature Page to Interim Investors Agreement]

 

[Signature Page to Interim Investors Agreement]

 

[Signature Page to Interim Investors Agreement]

Exhibit 99.15

EXECUTION VERSION

AMENDED AND RESTATED CONTRIBUTION AND SUPPORT AGREEMENT

This AMENDED AND RESTATED CONTRIBUTION AND SUPPORT AGREEMENT (this “Agreement”) is entered into as of February 18, 2019 by and among (1) Teamsport Topco Limited, a Cayman Islands exempted company (“Holdco”), (2) Teamsport Midco Limited, a Cayman Islands exempted company and a wholly-owned subsidiary of Holdco (“Midco”), (3) Teamsport Parent Limited, a Cayman Islands exempted company and a wholly-owned subsidiary of Midco (“Parent”), and (4) the shareholders of eHi Car Services Limited, a Cayman Islands exempted company (the “Company”), listed on Schedule A hereto (each, a “Rollover Shareholder” and collectively, the “Rollover Shareholders”). Capitalized terms used but not defined herein shall have the meanings ascribed to such terms in the Merger Agreement (as defined below).

WHEREAS, Parent, Teamsport Bidco Limited, a Cayman Islands exempted company and a wholly-owned subsidiary of Parent (“Merger Sub”), and the Company entered into an Agreement and Plan of Merger, dated as of April 6, 2018 (the “Original Merger Agreement”);

WHEREAS, in connection with the execution of the Original Merger Agreement, certain Rollover Shareholders entered into a Contribution and Support Agreement, dated as of April 6, 2018 (the “Original Agreement”);

WHEREAS, pursuant to Section 6.5 of the Original Agreement, the Original Parties (as defined below) wish to amend and restate the Original Agreement in its entirety, as set forth in this Agreement;

WHEREAS, Parent, Merger Sub and the Company will, concurrently with the execution of this Agreement, enter into an Amended and Restated Agreement and Plan of Merger, dated as of the date hereof (as it may be further amended, supplemented or otherwise modified from time to time, the “Merger Agreement”), pursuant to which Merger Sub will be merged with and into the Company, with the Company continuing as the surviving company and a wholly-owned subsidiary of Parent (the “Merger”), upon the terms and subject to the conditions set forth in the Merger Agreement;

WHEREAS, as of the date hereof, each Rollover Shareholder is the beneficial owner (as defined under Rule 13d-3 of the Exchange Act) of such Class A Common Shares, par value US$0.001 per share, of the Company, including Class A Common Shares represented by ADSs (“Class A Shares”) and/or Class B Common Shares, par value US$0.001 per share, of the Company (“Class B Shares” and, together with Class A Shares, the “Shares”) as set forth in the column titled “Shares” opposite such Rollover Shareholder’s name on Schedule A hereto (such Shares of such Rollover Shareholder, together with any other ordinary shares of the Company acquired (whether beneficially or of record) by such Rollover Shareholder after the date hereof and prior to the earlier of the Effective Time and the termination of all of such Rollover Shareholder’s obligations under this Agreement, including any ordinary shares of the Company acquired by means of purchase, dividend or distribution, or issued upon the exercise of any Company Options or warrants or the conversion of any convertible securities or otherwise, collectively such Rollover Shareholder’s “Securities”);

WHEREAS, in connection with the consummation of the Merger, each Rollover Shareholder agrees to (a) contribute his or its respective Shares as set forth opposite such Rollover Shareholder’s name under the column titled “Rollover Shares” on Schedule A hereto (such Rollover Shareholder’s “Rollover Shares”) to Holdco in exchange for newly issued ordinary shares of Holdco, par value US$0.01 per share (“Holdco Shares”), and (b) vote his or its Securities at the Shareholders’ Meeting in favor of the Merger, in each case upon the terms and conditions set forth herein;

WHEREAS, in connection with the consummation of the Merger, Holdco agrees to contribute the Rollover Shares to Midco in exchange for newly issued ordinary shares of Midco (“Midco Shares”);

WHEREAS, in connection with the consummation of the Merger, Midco agrees to contribute the Rollover Shares to Parent in exchange for newly issued ordinary shares of Parent (“Parent Shares”);

WHEREAS, Crawford has exercised its right of first offer, pursuant to Section 3.7 of that certain Third Amended and Restated Investors’ Rights Agreement, dated as of December 11, 2013, by and among the Company, Crawford, GS Car Rental HK Limited (“GS Limited”), GS Car Rental HK Parallel Limited (“GS Parallel” and, together with GS Limited, the “GS Shareholders”) and the other parties thereto, to indirectly acquire all or its pro rata portion of the Class B Shares owned by the GS Shareholders (the “GS ROFO Purchase”) through the purchase of capital stock of the GS Shareholders or one or more affiliates of the GS Shareholders (each, a “GS Holdco”), but, as of the date hereof there is a dispute between the parties regarding their respective rights and obligations in respect of the GS ROFO Purchase and a purchase agreement with respect to the GS ROFO Purchase has not been executed;

WHEREAS, in order to induce Parent and Merger Sub to enter into the Merger Agreement and consummate the transactions contemplated thereby, including the Merger, the Rollover Shareholders are entering into this Agreement; and

WHEREAS, the Rollover Shareholders acknowledge that Parent and Merger Sub are entering into the Merger Agreement in reliance on the representations, warranties, covenants and other agreements of the Rollover Shareholders set forth in this Agreement.

NOW, THEREFORE, in consideration of the foregoing, the mutual covenants and agreements set forth herein, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto hereby agree as follows:

ARTICLE I

VOTING

Section 1.1    Voting. From and after the date hereof until the earlier of (x) the Effective Time and the (y) termination of the Merger Agreement pursuant to and in compliance with the terms therein (such earlier time, the “Expiration Time”), each Rollover Shareholder hereby irrevocably and unconditionally agrees that at the Shareholders’ Meeting or other annual or special meeting of the shareholders of the Company, however called, at which any of the matters described in paragraphs (a) – (f) hereof is to be considered (and any adjournment or

 

2

postponement thereof), such Rollover Shareholder shall (i) appear at such meeting or otherwise cause his or its representative(s) to appear at such meeting or otherwise cause his or its Securities to be counted as present thereat for purposes of determining whether a quorum is present, and (ii) vote or cause to be voted (including by proxy, if applicable) all of such Rollover Shareholder’s Securities:

(a)    for the authorization and approval of the Merger Agreement, the Plan of Merger and the Transactions, including the Merger;

(b)    against any Competing Transaction or any other transaction, proposal, agreement or action made in opposition to the authorization and approval of the Merger Agreement, the Plan of Merger and the Transactions, including the Merger, or in competition or inconsistent with the Transactions, including the Merger;

(c)    against any other action, agreement or transaction that is intended, that could reasonably be expected, or the effect of which could reasonably be expected, to materially impede, interfere with, delay, postpone, discourage or adversely affect the Transactions, including the Merger, or this Agreement or the performance by such Rollover Shareholder of his or its obligations under this Agreement;

(d)    against any action, proposal, transaction or agreement that would reasonably be expected to result in a breach in any respect of any covenant, representation or warranty or any other obligation or agreement of the Company contained in the Merger Agreement, or of such Rollover Shareholder contained in this Agreement or otherwise reasonably requested by Parent in order to consummate the Transactions, including the Merger;

(e)    in favor of any adjournment or postponement of the Shareholders’ Meeting or any other annual or special meeting of the shareholders of the Company, however called, at which any of the matters described in paragraphs (a) through (f) of this Section 1.1 is to be considered (and any adjournment or postponement thereof) as may be reasonably requested by Parent; and

(f)    in favor of any other matter necessary to effect the Transactions, including the Merger.

Section 1.2    [Intentionally Omitted.]

Section 1.3    Restrictions on Transfers. Except as provided for in Article II or pursuant to the Merger Agreement, each Rollover Shareholder hereby agrees that, from the date hereof until the Expiration Time, such Rollover Shareholder shall not, directly or indirectly, (a) offer for sale, sell (constructively or otherwise), transfer, assign, tender in any tender or exchange offer, pledge, grant, encumber, hypothecate or similarly dispose of (by merger, testamentary disposition, operation of Law or otherwise) (collectively, “Transfer”), either voluntarily or involuntarily, or enter into any Contract, option or other arrangement or understanding with respect to the Transfer of any Securities or any interest therein, including, without limitation, any swap transaction, option, warrant, forward purchase or sale transaction, futures transaction, cap transaction, floor transaction, collar transaction or any other similar transaction (including any option with respect to any such transaction) or combination of any such transactions, in each case

 

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involving any Securities, (b) deposit any Securities into a voting trust or enter into a voting agreement or arrangement or grant any proxy or power of attorney with respect thereto that is inconsistent with this Agreement, (c) convert or exchange, or take any action which would result in the conversion or exchange, of any Securities, (d) take any action that would make any representation or warranty of such Rollover Shareholder set forth in this Agreement untrue or incorrect or have the effect of preventing, disabling, or delaying such Rollover Shareholder from performing any of his or its obligations under this Agreement or that is intended, or would reasonably be expected, to impede, frustrate, interfere with, delay, postpone, adversely affect or prevent the consummation of the Transactions or the transactions contemplated by this Agreement or the performance by the Company of its obligations under the Merger Agreement or by any Rollover Shareholder from performing any of his or its obligations under this Agreement, or (e) agree (whether or not in writing) to take any of the actions referred to in the foregoing clauses (a), (b) (c) or (d); provided that the foregoing shall not prevent the conversion of Company Options into the right to receive the Per Share Merger Consideration in accordance with the terms of, and to the extent provided in, the Merger Agreement. Any purported Transfer in violation of this Section 1.3 shall be null and void.

ARTICLE II

CONTRIBUTION

Section 2.1    Contribution of Rollover Shares by Rollover Shareholders to Holdco. Subject to the terms and conditions set forth in this Agreement, immediately prior to the Closing and (save as described in Section 5 below) without further action by the Rollover Shareholders, all of the right, title and interest of each Rollover Shareholder in and to his or its Rollover Shares shall be contributed, assigned, transferred and delivered to Holdco, free and clear of all Liens (other than any Liens created or expressly permitted by Holdco or arising by reason of the Merger Agreement or this Agreement).

Section 2.2    Issuance of Holdco Shares. In consideration for the contribution, assignment, transfer and delivery of each Rollover Shareholder’s Rollover Shares to Holdco pursuant to Section 2.1 of this Agreement, Holdco shall issue Holdco Shares in the name of such Rollover Shareholder (or, if designated by such Rollover Shareholder in writing, in the name of an Affiliate of such Rollover Shareholder) of the class and in the amount set forth opposite such Rollover Shareholder’s name under the column titled “Holdco Shares” on Schedule A hereto. Each Rollover Shareholder hereby acknowledges and agrees that (a) the value of the Holdco Shares issued to such Rollover Shareholder is equal to (x) the total number of Rollover Shares contributed by such Rollover Shareholder multiplied by (y) the Per Share Merger Consideration (or Per ADS Merger Consideration, if applicable) under the Merger Agreement, (b) delivery of such Holdco Shares shall constitute complete satisfaction of all obligations towards or sums due to such Rollover Shareholder by Parent with respect to the applicable Rollover Shares and (c) on receipt of such Holdco Shares, such Rollover Shareholder shall have no right to the Per Share Merger Consideration (or the Per ADS Merger Consideration, if applicable) with respect to the Rollover Shares contributed to Holdco by such Rollover Shareholder.

Section 2.3    Contribution of Rollover Shares by Holdco to Midco. Immediately following the receipt by Holdco of the Rollover Shares from the Rollover Shareholders pursuant to Section 2.2 of this Agreement and immediately prior to the Closing, Holdco shall contribute the Rollover Shares to Midco in exchange for Midco Shares and Midco shall accept such contribution of the Rollover Shares by Holdco.

 

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Section 2.4    Contribution of Rollover Shares by Midco to Parent. Immediately following the receipt by Midco of the Rollover Shares from Holdco pursuant to Section 2.3 of this Agreement and immediately prior to the Closing, Midco shall contribute the Rollover Shares to Parent in exchange for Parent Shares and Parent shall accept such contribution of the Rollover Shares by Midco.

Section 2.5    Contribution Closing. Subject to the satisfaction in full (or waiver, if permissible) of all of the conditions set forth in Article VII of the Merger Agreement (other than conditions that by their nature are to be satisfied at the Closing), the closing of the contribution and exchange contemplated hereby (the “Contribution Closing”) shall take place immediately prior to the Closing.

Section 2.6    Deposit of Rollover Shares. No later than five (5) Business Days prior to the Contribution Closing, each Rollover Shareholder and any agent of such Rollover Shareholder holding certificates evidencing any Rollover Shares shall deliver or cause to be delivered to Holdco, for disposition in accordance with the terms of this Article II, (a) duly executed instruments of transfer of the Rollover Shares to Holdco or as Holdco may direct in writing, in form reasonably acceptable to Holdco, and (b) certificates, if any, representing his or its Rollover Shares (the “Rollover Share Documents”). The Rollover Share Documents shall be held by Holdco or any agent authorized by Holdco until the Contribution Closing.

Section 2.7    Effect of the Merger on Rollover Shares. Parent agrees that it shall not have the right to receive the Per Share Merger Consideration (or the Per ADS Merger Consideration, if applicable) in connection with the Merger with respect to any Rollover Shares held by it as of immediately prior to the Effective Time, and, at the Effective Time, each Rollover Share issued and outstanding immediately prior to the Effective Time shall continue to exist without interruption and shall thereafter be and represent one validly issued, fully paid and non-assessable ordinary share, par value US$0.01 per share, of the Surviving Company, in each case in accordance with the terms of the Merger Agreement.

ARTICLE III

REPRESENTATIONS, WARRANTIES AND COVENANTS

OF THE ROLLOVER SHAREHOLDERS

Section 3.1    Representations and Warranties. Each Rollover Shareholder, severally and not jointly, represents and warrants to Parent, Midco and Holdco as of the date hereof and as of the Contribution Closing:

(a)    such Rollover Shareholder has the full legal right, power, capacity and authority to execute and deliver this Agreement, to perform such Rollover Shareholder’s obligations hereunder and to consummate the transactions contemplated hereby;

(b)    this Agreement has been duly executed and delivered by such Rollover Shareholder and the execution, delivery and performance of this Agreement by such Rollover Shareholder and the consummation of the transactions contemplated hereby have been duly

 

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authorized by all necessary action on the part of such Rollover Shareholder and no other actions or proceedings on the part of such Rollover Shareholder are necessary to authorize this Agreement or to consummate the transactions contemplated hereby;

(c)    assuming due authorization, execution and delivery by Parent, Midco and Holdco, this Agreement constitutes a legal, valid and binding agreement of such Rollover Shareholder, enforceable against such Rollover Shareholder in accordance with its terms, except as enforcement may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar Laws affecting creditors’ rights generally and by general principles of equity (regardless of whether considered in a proceeding in equity or at law);

(d)    (i) such Rollover Shareholder (A) is and, immediately prior to the Contribution Closing, will be the beneficial owner of, and has and will have good and valid title to, his or its Securities, free and clear of Liens other than as created by this Agreement, and (B) has and will have sole or shared (together with Affiliates controlled by such Rollover Shareholder) voting power, power of disposition, and power to demand dissenter’s rights, in each case with respect to all of his or its Securities, with no limitations, qualifications, or restrictions on such rights, subject to applicable United States federal securities Laws, Laws of the Cayman Islands and the terms of this Agreement, (ii) his or its Securities are not subject to any voting trust agreement or other Contract to which such Rollover Shareholder is a party restricting or otherwise relating to the voting or Transfer of such Securities other than this Agreement, (iii) such Rollover Shareholder has not Transferred any interest in any of his or its Securities and (iv) as of the date hereof, such Rollover Shareholder does not own, beneficially or of record, any shares or other securities of the Company, or any direct or indirect interest in any such securities (including by way of derivative securities);

(e)    except for the applicable requirements of the Exchange Act and any other United States federal securities Law, (i) no filing with, and no permit, authorization, consent or approval of, any Governmental Authority is necessary on the part of such Rollover Shareholder for the execution, delivery and performance of this Agreement by such Rollover Shareholder or the consummation by such Rollover Shareholder of the transactions contemplated hereby, and (ii) neither the execution, delivery or performance of this Agreement by such Rollover Shareholder, nor the consummation by such Rollover Shareholder of the transactions contemplated hereby, nor compliance by such Rollover Shareholder with any of the provisions hereof shall (A) conflict with or violate any provision of the organizational documents of any such Rollover Shareholder which is an entity, (B) result in any breach or violation of, or constitute a default (or an event which, with notice or lapse of time or both, would become a default) under, or give to others any rights of termination, amendment, acceleration or cancellation of, or result in the creation of a Lien on property or assets of such Rollover Shareholder pursuant to any Contract to which such Rollover Shareholder is a party or by which such Rollover Shareholder or any property or asset of such Rollover Shareholder is bound or affected, or (C) violate any order, writ, injunction, decree, statute, rule or regulation applicable to such Rollover Shareholder or any of such Rollover Shareholder’s properties or assets;

(f)    on the date hereof, there is no Action pending against such Rollover Shareholder or, to the knowledge of such Rollover Shareholder, any other person or, to the knowledge of such Rollover Shareholder, threatened against such Rollover Shareholder or any other person that restricts or prohibits (or, if successful, would restrict or prohibit) the performance by such Rollover Shareholder of his or its obligations under this Agreement;

 

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(g)    such Rollover Shareholder has been afforded the opportunity to ask such questions as it has deemed necessary of, and to receive answers from, representatives of Parent, Midco and Holdco concerning the terms and conditions of the transactions contemplated hereby and the merits and risks of owning Holdco Shares, and such Rollover Shareholder acknowledges that it has been advised to discuss with its own counsel the meaning and legal consequences of such Rollover Shareholder’s representations and warranties in this Agreement and the transactions contemplated hereby; and

(h)    such Rollover Shareholder (i) understands and acknowledges that Parent and Merger Sub are entering into the Merger Agreement in reliance upon such Rollover Shareholder’s execution, delivery and performance of this Agreement, and (ii) acknowledges that it is entering into this Agreement in order to induce Parent and Merger Sub to enter into the Merger Agreement and consummate the Transactions, including the Merger.

Section 3.2    Covenants. Each Rollover Shareholder hereby:

(a)    agrees, prior to the Expiration Time, not to knowingly take any action that would make any representation or warranty of such Rollover Shareholder contained herein untrue or incorrect or have or could have the effect of preventing, impeding or interfering with or adversely affecting the performance by such Rollover Shareholder of his or its obligations under this Agreement;

(b)    irrevocably waives, and agrees not to exercise or assert, any rights of appraisal or rights of dissent from the Merger that such Rollover Shareholder may have with respect to such Rollover Shareholder’s Securities (including any rights under Section 238 of the CICL or the submission of any notice pursuant thereto) prior to the Expiration Time;

(c)    agrees to permit the Company and Parent to publish and disclose in the Proxy Statement (including all documents filed with the SEC in accordance therewith) and any other disclosure documents in connection with the Merger Agreement and any filings with or notices to any Governmental Authority in connection with the Transactions, such Rollover Shareholder’s identity and beneficial ownership of the Shares, Securities or other equity securities of the Company and the nature of such Rollover Shareholder’s commitments, arrangements and understandings under this Agreement;

(d)    agrees and covenants, severally and not jointly, that such Rollover Shareholder shall promptly (and in any event within forty-eight (48) hours) notify Parent of any new Shares, Securities and/or other securities of the Company with respect to which beneficial ownership (within the meaning of Rule 13d-3 of the Exchange Act) is acquired by such Rollover Shareholder, including, without limitation, by purchase, as a result of a stock dividend, stock split, recapitalization, combination, reclassification, exchange or change of such shares, or upon exercise or conversion of any securities of the Company after the date hereof; and

(e)    agrees further that, upon request of Parent, such Rollover Shareholder shall execute and deliver any additional documents, consents or instruments and take such further actions as may reasonably be deemed by Parent to be necessary or desirable to carry out the provisions of this Agreement.

 

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Section 3.3    GS ROFO Purchase. In the event the dispute regarding the GS ROFO Purchase is resolved and the GS ROFO Purchase is consummated, Crawford shall promptly, and in any event within three (3) Business Days, cause each GS Holdco acquired by Crawford to (a) duly execute an adherence agreement to the Interim Investors Agreement in a form mutually agreed by MBKP, Horizon and Crawford and (b) duly execute an adherence agreement to this Agreement in a form mutually agreed by MBKP, Horizon and Crawford in respect of the Class B Shares owned by such GS Holdco, and upon execution of such documents, such GS Holdco shall become a “Rollover Shareholder” and such Class B Shares owned by such GS Holdco shall be deemed to be such GS Holdco’s “Rollover Shares” and “Securities,” for all purposes of this Agreement, and Schedule A hereto shall be updated to reflect the foregoing.

ARTICLE IV

REPRESENTATIONS AND WARRANTIES OF PARENT, MIDCO AND HOLDCO

Each of Parent, Midco and Holdco represents and warrants to each Rollover Shareholder that as of the date hereof and as of the Contribution Closing:

(a)    each of Parent, Midco and Holdco is duly organized, validly existing and in good standing under the Laws of the Cayman Islands and has all requisite power and authority to execute and deliver this Agreement, to perform its obligations hereunder and to consummate the transactions contemplated hereby. This Agreement has been duly and validly executed and delivered by Parent, Midco and Holdco and the execution, delivery and performance of this Agreement by Parent, Midco and Holdco and the consummation of the transactions contemplated hereby have been duly authorized by all necessary corporate action on the part of Parent, Midco and Holdco and no other corporate actions or proceedings on the part of Parent, Midco and Holdco are necessary to authorize this Agreement or to consummate the transactions contemplated hereby. Assuming due authorization, execution and delivery by the Rollover Shareholders, this Agreement constitutes a legal, valid and binding obligation of Parent, Midco and Holdco, enforceable against Parent, Midco and Holdco in accordance with its terms, except as enforcement may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar Laws affecting creditors’ rights generally and by general principles of equity (regardless of whether considered in a proceeding in equity or at law);

(b)    except for the applicable requirements of the Exchange Act and Laws of the Cayman Islands, (i) no filing with, and no permit, authorization, consent or approval of, any Governmental Authority is necessary on the part of Parent, Midco or Holdco for the execution, delivery and performance of this Agreement by Parent, Midco and Holdco or the consummation by Parent, Midco and Holdco of the transactions contemplated hereby, and (ii) neither the execution, delivery or performance of this Agreement by Parent and Holdco, nor the consummation by Parent, Midco and Holdco of the transactions contemplated hereby, nor compliance by Parent, Midco and Holdco with any of the provisions hereof shall (A) conflict with or violate any provision of the organizational documents of Parent, Midco or Holdco, (B) result in any breach or violation of, or constitute a default (or an event which, with notice or lapse of time or both, would become a default) under, or give to others any rights of termination,

 

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amendment, acceleration or cancellation of, or result in the creation of a Lien on such property or asset of Parent, Midco or Holdco pursuant to, any Contract to which Parent, Midco or Holdco is a party or by which Parent, Midco or Holdco or any of their property or asset is bound or affected, or (C) violate any order, writ, injunction, decree, statute, rule or regulation applicable to Parent, Midco or Holdco any of their properties or assets;

(c)    except as contemplated by the Merger Agreement and the Equity Commitment Letters or otherwise agreed to by the parties hereto, at and immediately after the Closing, there shall be no (i) options, warrants, or other rights to acquire share capital of Holdco, Midco or Parent, (ii) no outstanding securities exchangeable for or convertible into share capital of Holdco, Midco or Parent and (iii) no outstanding rights to acquire or obligations to issue any such options, warrants, rights or securities;

(d)    (i) Midco is wholly owned by Holdco, (ii) Parent is wholly owned by Midco and (iii) Merger Sub is wholly owned by Parent; and

(e)    at the Contribution Closing, the Holdco Shares to be issued under this Agreement shall have been duly and validly authorized and when issued and delivered in accordance with the terms hereof, will be validly issued, fully paid and nonassessable, free and clear of all Liens, other than restrictions arising under applicable securities Laws or the organizational documents of Holdco.

ARTICLE V

TERMINATION

As to any Rollover Shareholder, this Agreement, and the obligations of such Rollover Shareholder, Parent, Midco and Holdco hereunder, shall terminate automatically and immediately and be of no further force or effect upon the earlier to occur of (a) the valid termination of the Merger Agreement in accordance with its terms, and (b) the Company or any of its Affiliates asserting a claim that would make such Rollover Shareholder’s Limited Guarantee become terminable in accordance with the terms thereof; provided, that this Article V and Article VI shall survive any termination of this Agreement. Nothing in this Article V shall relieve or otherwise limit any party’s liability for any breach of this Agreement prior to the termination of this Agreement. If for any reason the Merger fails to occur but the Contribution Closing contemplated by Article II has already taken place, then Holdco, Midco and Parent shall promptly take all such actions as are necessary to restore each Rollover Shareholder to the position it was in with respect to ownership of the Rollover Shares prior to the Contribution Closing.

ARTICLE VI

MISCELLANEOUS

Section 6.1    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) by delivery in person, by facsimile or by international overnight courier to the respective parties at the address set forth below (or at such other address for a party as shall be specified in a notice given in accordance with this Section 6.1):

if to a Rollover Shareholder, to the address set forth next to such Rollover Shareholder’s name on Schedule A hereto;

 

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if to Parent, Midco and/or Holdco:

c/o MBK Partners Management Consulting (Shanghai) Co., Ltd.

Unit 3904, K.Wah Center

1010 Huai Hai M. Road

Shanghai, China

Attention: Hongfei Yu

                 Lei Han

Facsimile: +86 21 3401 2999

E-mail: hongfei.yu@mbkpartnerslp.com

             lei.han@mbkpartnerslp.com

with a copy to (which alone shall not constitute notice):

Weil, Gotshal & Manges LLP

29/F, Alexandra House

18 Chater Road, Central

Hong Kong

Attention: Tim Gardner

                 William Welty

Facsimile: +852 3015 9354

Email: tim.gardner@weil.com

            william.welty@weil.com

Section 6.2    Severability. If any term or other provision of this Agreement is invalid, illegal or incapable of being enforced by any rule of Law, or public policy, all other conditions and provisions of this Agreement shall nevertheless remain in full force and effect so long as the economic or legal substance of the Transactions is not affected in any manner adverse to any party. Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the Transactions be consummated as originally contemplated to the fullest extent possible.

Section 6.3    Entire Agreement. This Agreement, the Interim Investors Agreement, the Equity Commitment Letters, the Limited Guarantees and the Merger Agreement constitute the entire agreement among the parties with respect to the subject matter hereof and supersede all prior agreements and undertakings, both written and oral, among the parties, or any of them, with respect to the subject matter hereof.

Section 6.4    Specific Performance. Each party acknowledges and agrees that monetary damages would not be an adequate remedy in the event that any covenant or agreement in this Agreement is not performed in accordance with its terms, and therefore agrees that in the event of any breach by a party hereto of any of his or its respective covenants or agreements set forth

 

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in this Agreement, the non-breaching parties shall each be entitled to specific performance of the terms hereof, including an injunction or injunctions to prevent breaches of this Agreement by any party, in addition to any other remedy at law or equity. Each party waives (i) any defenses in any action for an injunction or other appropriate form of specific performance or equitable relief, including the defense that a remedy at law would be adequate and (ii) any requirement under any Law to post a bond or other security as a prerequisite to obtaining an injunction or other appropriate form of specific performance or equitable relief. All rights, powers, and remedies provided under this Agreement or otherwise available in respect hereof at law or in equity shall be cumulative and not alternative, and the exercise or beginning of the exercise of any thereof by a party shall not preclude the simultaneous or later exercise of any other such right, power or remedy by a party.

Section 6.5    Amendments; Waivers. At any time prior to the Expiration Time, any provision of this Agreement may be amended or waived if, and only if, such amendment or waiver is in writing and signed, in the case of an amendment, by the Rollover Shareholders, Holdco, Midco and Parent, or in the case of a waiver, by the party against whom the waiver is to be effective. Notwithstanding the foregoing, no failure or delay by a party hereto in exercising any right hereunder shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise of any other right hereunder.

Section 6.6    Governing Law. This Agreement shall be governed by, and construed in accordance with, the Laws of the State of New York, without giving effect to any choice of Law or conflict of Law rules or provisions that would cause the application of the Laws of any jurisdiction other than the State of New York.

Section 6.7    Dispute Resolution.

(a)    Subject to Section 6.4, Section 6.6, the last sentence of this Section 6.7(a) and Section 6.7(b), any disputes, actions and proceedings against any party or arising out of or in any way relating to this Agreement shall be submitted to the Hong Kong International Arbitration Centre (“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 6.7 (the “Rules”). 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.

 

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(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 6.7, any party may, to the extent permitted under the Laws of the jurisdiction where application is made, seek an interim injunction from a court or other authority with competent jurisdiction and, notwithstanding that this Agreement is governed by the Laws of 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 6.7(b) is only applicable to the seeking of interim injunctions and does not restrict the application of Section 6.7(a) in any way.

Section 6.8    No Third Party Beneficiaries; No Recourse.

(a)    There are no third party beneficiaries of this Agreement and nothing in this Agreement, express or implied, is intended to confer on any person other than the parties hereto (and their respective successors, heirs and permitted assigns), any rights, remedies, obligations or liabilities, except as specifically set forth in this Agreement.

(b)    Notwithstanding anything that may be expressed or implied in this Agreement or any document or instrument delivered in connection herewith, and not withstanding the fact a Rollover Shareholder may be a limited partnership or limited liability company, as applicable, Holdco covenants, acknowledges and agrees that, as to each Rollover Shareholder, no person other than such Rollover Shareholder (and its successors and permitted assigns under this Agreement pursuant to the terms hereof) has any obligations hereunder and that no recourse shall be had hereunder, 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, be imposed on or otherwise be incurred by such Rollover Shareholder’s Non-Recourse Parties (as defined in such Rollover Shareholder’s Limited Guarantee), through Holdco, Midco, 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 Holdco against any such Non-Recourse Party, by the enforcement of any assessment or by any legal or equitable proceeding, by virtue of any statute, regulation or applicable Law, or otherwise.

Section 6.9    Assignment; Binding Effect. Neither this Agreement nor any of the rights, interests or obligations hereunder shall be assigned by any of the parties hereto (whether by operation of Law or otherwise) without the prior written consent of the other parties, except that Parent may assign this Agreement (in whole but not in part) in connection with a permitted assignment of the Merger Agreement by Parent, as applicable. Subject to the preceding sentence, this Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns.

Section 6.10    No Presumption Against Drafting Party. Each of the parties to this Agreement acknowledges that it has been represented by independent counsel in connection with this Agreement and the transactions contemplated by this Agreement. Accordingly, any rule of Law or any legal decision that would require interpretation of any claimed ambiguities in this Agreement against the drafting party has no application and is expressly waived.

 

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Section 6.11    Further Assurances. Each Rollover Shareholder hereby covenants that, from time to time, he or it will do, execute, acknowledge and deliver, or cause to be done, executed, acknowledged and delivered, such further acts, conveyances, transfers, assignments, powers of attorney and assurances necessary to convey, transfer to and vest in Holdco, and to put Holdco in possession of, all of the applicable Rollover Shares in accordance with the terms of this Agreement.

Section 6.12    Counterparts. This Agreement may be executed in two or more consecutive counterparts (including by facsimile or email pdf format), each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument, and shall become effective when one or more counterparts have been signed by each of the parties and delivered (by telecopy, email pdf format or otherwise) to the other parties.

Section 6.13    Confidentiality. This Agreement shall be treated as confidential and may not be used, circulated, quoted or otherwise referred to in any document, except with the prior written consent of the parties hereto; provided, however, that each party hereto may, without such written consent, disclose the existence and content of this Agreement to its officers, directors, employees, partners, members, investors, financing sources, advisors (including financial and legal advisors) and any representatives of the foregoing and 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 each Rollover Shareholder may disclose the existence and content of this Agreement to such Rollover Shareholder’s Non-Recourse Parties.

Section 6.14    Original Agreement. Each of L & L Horizon, LLC, The Crawford Group, Inc., Dongfeng Asset Management Co. Ltd., Holdco, Midco and Parent (the “Original Parties”) agrees and confirms that the Original Agreement is hereby amended and restated in its entirety, and is in force and effect only as so amended and restated.

Section 6.15    Interpretation. When a reference is made in this Agreement to a Section or Article such reference shall be to a Section or Article of this Agreement unless otherwise indicated. The headings contained in this Agreement are for convenience of reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement. All words used in this Agreement will be construed to be of such gender or number as the circumstances require. The word “including” and words of similar import when used in this Agreement will mean “including, without limitation,” unless otherwise specified. The words “hereof,” “herein” and “hereunder” and words of similar import when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement. 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 term. 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, modified or supplemented, including (in the case of agreements or instruments) by waiver or consent and (in the case of statutes) by succession of comparable successor statutes and references to all attachments thereto and instruments incorporated therein. References to a person are also to its permitted successors and assigns. References to clauses without a cross-

 

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reference to a Section or subsection are references to clauses within the same Section or, if more specific, subsection. References from or through any date shall mean, unless otherwise specified, from and including or through and including, respectively. The symbol “US$” refers to United States Dollars. The word “extent” in the phrase “to the extent” means the degree to which a subject or other thing extends and such phrase shall not mean simply “if.” References to “day” shall mean a calendar day unless otherwise indicated as a “Business Day.”

[Remainder of Page Left Blank Intentionally]

 

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IN WITNESS WHEREOF, the parties hereto have duly executed and delivered this Agreement as of the date and year first written above.

 

 

[Signature Page to A&R Contribution and Support Agreement]

 

[Signature Page to A&R Contribution and Support Agreement]

 

[Signature Page to A&R Contribution and Support Agreement]

 

[Signature Page to A&R Contribution and Support Agreement]

 

[Signature Page to A&R Contribution and Support Agreement]

 

[Signature Page to Contribution and Support Agreement]

 

[Signature Page to Contribution and Support Agreement]

 

[Signature Page to Contribution and Support Agreement]

 

[Signature Page to Contribution and Support Agreement]

 

[Signature Page to Contribution and Support Agreement]

SCHEDULE A

 

Name		Notice Address		Shares		Rollover Shares		Holdco Shares
L & L Horizon, LLC		L & L Horizon, LLC Unit 12/F, Building No.5, Guosheng Center 388 Daduhe Road Shanghai, 200062, China Attention: Mr. Ray RuiPing Zhang Facsimile: +86 21 5489 1121 E-mail: xjhsh168@qq.com   With a copy (which shall not constitute notice) to:   Pillar Legal, P.C. Suite 1419-1420, Far East Building 1101 Pudong South Road, Pudong District Shanghai 200120, China Attention: Greg Pilarowski E-mail: greg@pillarlegalpc.com		Class A common shares: 0   Class B common shares: 7,142,432   ADSs (each representing two Class A common shares): 0		7,142,432 Shares		Class A-1 ordinary shares: 0   Class B ordinary shares: 7,142,432
The Crawford Group, Inc.		The Crawford Group, Inc. 600 Corporate Park Drive St. Louis, MO 63105 U.S.A. Attention: Pamela M. Nicholson,   Chief Executive Officer Facsimile: +1 314-512-4070 E-mail: Pamela.M.Nicholson@ehi.com   With a copy (which shall not constitute notice) to:   The Crawford Group, Inc. c/o Enterprise Holdings, Inc. 600 Corporate Park Drive St. Louis, MO 63105		Class A common shares: 37,501   Class B common shares: 18,694,003   ADSs (each representing two Class A common shares): 533,885		19,799,274 Shares		Class A-1 ordinary shares: 18,122,286   Class B ordinary shares: 1,676,988

		U.S.A. Attention: Michael W. Andrew, Senior   Vice President and General Counsel Facsimile: +1 314-512-5823 E-mail: Mike.Andrew@ehi.com
ICG Holdings 1, LLC		The Crawford Group, Inc. 600 Corporate Park Drive St. Louis, MO 63105 U.S.A. Attention: Pamela M. Nicholson,  Chief Executive Officer Facsimile: +1 314-512-4070 E-mail: Pamela.M.Nicholson@ehi.com   With a copy (which shall not constitute notice) to:   The Crawford Group, Inc. c/o Enterprise Holdings, Inc. 600 Corporate Park Drive St. Louis, MO 63105 U.S.A. Attention: Michael W. Andrew, Senior  Vice President and General Counsel Facsimile: +1 314-512-5823 E-mail: Mike.Andrew@ehi.com		Class A common shares: 0   Class B common shares: 3,030,839   ADSs (each representing two Class A common shares): 0		3,030,839 Shares		Class A-1 ordinary shares: 2,898,209   Class B ordinary shares: 132,630
ICG Holdings 2, LLC		The Crawford Group, Inc. 600 Corporate Park Drive St. Louis, MO 63105 U.S.A. Attention: Pamela M. Nicholson,  Chief Executive Officer Facsimile: +1 314-512-4070 E-mail: Pamela.M.Nicholson@ehi.com		Class A common shares: 0   Class B common shares: 3,156,358   ADSs (each representing two Class A common shares): 0		3,156,358 Shares		Class A-1 ordinary shares: 3,018,236   Class B ordinary shares: 138,122

		With a copy (which shall not constitute notice) to:   The Crawford Group, Inc. c/o Enterprise Holdings, Inc. 600 Corporate Park Drive St. Louis, MO 63105 U.S.A. Attention: Michael W. Andrew, Senior                  Vice President and General Counsel Facsimile: +1 314-512-5823 E-mail: Mike.Andrew@ehi.com
Dongfeng Asset Management Co. Ltd.		Dongfeng Asset Management Co. Ltd. Special No.1 DongFeng Road, WuHan Economic & Technical Development Zone WuHan, HuBei Province, PRC, 430056 Attention: Zhang Xiao  Wang You E-mail: zhxiao@dfmc.com.cn wangy@dfmc.com.cn		Class A common shares: 5,000,000   Class B common shares: 0   ADSs (each representing two Class A common shares): 0		5,000,000 Shares		Class A-1 ordinary shares: 5,000,000   Class B ordinary shares: 0
Ctrip Investment Holding Ltd.		Ctrip.com International, Ltd. Building 16, 968 Jinzhong Road, Shanghai People’s Republic of China Attention: Jay Shen Email: jie_shen@Ctrip.com   With a copy (which shall not constitute notice) to:   Skadden, Arps, Slate, Meagher & Flom 42/F, Edinburgh Tower, The Landmark 15 Queen’s Road Central, Hong Kong Attention: Z. Julie Gao  Haiping Li Email: Julie.Gao@skadden.com		Class A common shares: 4,300,000   Class B common shares: 15,168,193   ADSs (each representing two Class A common shares): 0		19,468,193		Class A-1 ordinary shares: 17,772,124   Class B ordinary shares: 1,696,069
		Haiping.Li@skadden.com

CDH Car Rental Service Limited		Ocean Imagination L.P. Room 303, 3rd Floor, St. George’s Building, 2 Ice House Street, Central, Hong Kong Attention: Tianyi Jiang E-mail: tony.jiang@oceanlp.com   With a copy (which shall not constitute notice) to:   Skadden, Arps, Slate, Meagher & Flom 42/F, Edinburgh Tower, The Landmark 15 Queen’s Road Central, Hong Kong Attention: Z. Julie Gao  Haiping Li Email: Julie.Gao@skadden.com             Haiping.Li@skadden.com		Class A common shares: 100,000   Class B common shares: 8,599,211   ADSs (each representing two Class A common shares): 219,382		9,137,975		Class A-1 ordinary shares: 8,738,097   Class B ordinary shares: 399,878

Exhibit 99.16

EXECUTION VERSION

AMENDED AND RESTATED EQUITY COMMITMENT LETTER

February 18, 2019

Teamsport Topco Limited

c/o MBK Partners Management Consulting (Shanghai) Co., Ltd.

Unit 3904, K.Wah Center

1010 Huai Hai M. Road

Shanghai, China

Facsimile:		+86 21 3401 2999
E-mail:		hongfei.yu@mbkpartnerslp.com
		lei.han@mbkpartnerslp.com
Attention:		Hongfei Yu
		Lei Han

Ladies and Gentlemen:

This letter agreement sets forth the commitment of The Crawford Group, Inc., a corporation organized and existing under the Laws of the State of Missouri (the “Sponsor”), subject to the terms and conditions contained herein, to purchase, directly or indirectly, certain equity interests of Teamsport Topco Limited, an exempted company with limited liability incorporated under the Laws of the Cayman Islands (“Holdco”) and amends and restates in its entirety that certain equity commitment letter by and between the Sponsor and Holdco dated April 6, 2018 (the “Original Equity Commitment Letter”). It is contemplated that, pursuant to that certain Amended and Restated Agreement and Plan of Merger, dated as of February 18, 2019 (as amended, restated, supplemented or otherwise modified from time to time, the “Merger Agreement”), among eHi Car Services Limited (the “Company”), Teamsport Parent Limited (“Parent”), a direct wholly-owned Subsidiary of Teamsport Midco Limited, a direct wholly-owned Subsidiary of Holdco (“Midco”), and Teamsport Bidco Limited, a direct wholly-owned Subsidiary of Parent (“Merger Sub”), 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, each of MBK Partners Fund IV, L.P. and Ocean Imagination L.P. (each, an “Other Sponsor” and, collectively, the “Other Sponsors”) is entering into a letter agreement substantially identical to this letter agreement (each, an “Other Sponsor Equity Commitment Letter” and, collectively, the “Other Sponsor Equity Commitment Letters”) committing to invest in Holdco. Capitalized terms used in this letter agreement and not otherwise defined herein have the meanings ascribed to such terms in the Merger Agreement.

1.    Equity Commitment.

a.    The Sponsor shall, at or immediately prior to the Effective Time, subject to the terms and conditions set forth herein, purchase, or cause the purchase of, equity interests of Holdco and pay, or cause to be paid, to Holdco in immediately available funds an aggregate cash purchase price equal to US$135,593,633.50 (such amount, subject to adjustment pursuant to Section 1(b), the “Equity Commitment”), which will be (i) contributed by Holdco to Midco, (ii)

contributed by Midco to Parent, and (iii) used by Parent solely for the purpose of funding, to the extent necessary to fund, such portion of the aggregate Merger Consideration required to be paid by Parent to consummate the Merger pursuant to and in accordance with the Merger Agreement, together with related fees and expenses; provided, that the Sponsor shall not, under any circumstances, be obligated to contribute more than the Equity Commitment to Holdco and the aggregate liability of the Sponsor hereunder shall not exceed the amount of the Equity Commitment.

b.    The Sponsor may effect the funding of the Equity Commitment directly or indirectly through one or more direct or indirect Subsidiaries of the Sponsor or any other investment fund advised or managed by an Affiliate of the Sponsor or any other investment fund that is a limited partner of the Sponsor or of an Affiliate of the Sponsor or other Affiliates of the Sponsor. The Sponsor will not be under any obligation under any circumstances to contribute or cause to be contributed more than the amount of the Equity Commitment to Holdco, Midco, Parent, Merger Sub or any other person pursuant to the terms of this letter agreement. In the event Holdco, Midco and/or Parent does not require an amount equal to the sum of the Equity Commitment plus the amount of the equity commitments of the Other Sponsors under the Other Sponsor Equity Commitment Letters in order to consummate the Merger, the amount of the Equity Commitment to be funded under this letter agreement and the amount of the equity commitments of the Other Sponsors to be funded under the Other Sponsor Equity Commitment Letters shall be reduced by Holdco on a pro rata basis, to the level sufficient, in combination with the other financing arrangements contemplated by the Merger Agreement (including the Debt Financing and/or Alternative Financing (if applicable)), for Parent and Merger Sub to consummate the Transactions; provided, however, that in the event that the parties’ dispute with respect to their rights and obligations in respect of the GS ROFO Purchase (as defined in the Contribution and Support Agreement) is resolved and the GS ROFO Purchase is consummated and each GS Holdco (as defined in the Contribution and Support Agreement) acquired by Crawford executes an adherence agreement to the Contribution and Support Agreement as contemplated by Section 3.3 of the Contribution and Support Agreement, the amount of the Equity Commitment to be funded under this letter agreement shall be reduced by an amount equal to (i) the number of Class B Shares owned by such GS Holdcos that are to be contributed to Holdco in connection with the Transactions pursuant to the Contribution and Support Agreement and such adherence agreement thereto, multiplied by (ii) the Per Share Merger Consideration.

2.    Conditions. The Equity Commitment shall be subject to (a) the satisfaction in full (or waiver, if permissible), at or prior to the Closing of each of the conditions set forth in Section 7.01 and Section 7.02 of the Merger Agreement (other than any conditions that by their nature are to be satisfied at the Closing but subject to the prior or substantially concurrent satisfaction of such conditions), (b) the substantially contemporaneous consummation of the Closing, and (c) the substantially contemporaneous closing of the contributions contemplated by the Other Sponsor Equity Commitment Letters which shall not be modified, amended or altered in any manner adverse to the Sponsor without the Sponsor’s prior written consent; provided, that the satisfaction or failure of the condition set forth in clause (c) shall not limit or impair the ability of Holdco or the Company to seek enforcement of the obligations of the Sponsor under and in accordance with this letter agreement if (i) Holdco or the Company, as applicable, is also seeking enforcement of each Other Sponsor’s obligations under its Other Sponsor Equity

Commitment Letter, and/or (ii) each Other Sponsor has satisfied or is prepared to (or will) satisfy its obligations under its Other Sponsor Equity Commitment Letter, and/or (iii) additional equity contributions will be funded to Holdco substantially contemporaneously with the funding of the Equity Commitment, on terms and conditions substantially similar to those set forth in this letter agreement and in an amount sufficient to replace any equity commitments of the Other Sponsors under the Other Sponsor Equity Commitment Letters that will not be funded to Holdco at such time.

3.    Limited Guarantee. Concurrently with the execution and delivery of this letter agreement, the Sponsor is executing and delivering to the Company an amended and restated limited guarantee (the “Limited Guarantee”) guaranteeing the Guaranteed Percentage (as defined in the Limited Guarantee) of the Obligations (as defined in the Limited Guarantee). Other than with respect to the Retained Claims (as such term is defined under the Limited Guarantee) and subject to Section 4, the Company’s remedies against the Sponsor under the Limited Guarantee (as set forth in and in accordance with the terms of the Limited Guarantee) shall be, and are intended to be, the sole and exclusive direct or indirect remedies (whether at Law or in equity, whether sounding in contract, tort, statute or otherwise) available to the Company and its Affiliates against the Sponsor and the Non-Recourse Parties (as defined in the Limited Guarantee) in respect of any claims, liabilities or obligations arising out of or relating to this letter agreement, the Merger Agreement and the Transactions, including in the event Parent or Merger Sub breaches its obligations under the Merger Agreement, whether or not Parent’s or Merger Sub’s breach is caused by the Sponsor’s breach of its obligations under this letter agreement.

4.    Enforceability; Third-Party Beneficiary. This letter agreement may only be enforced (a) by Holdco or (b) by the Company in connection with it obtaining specific performance of Parent’s, Merger Sub’s or the Sponsor’s obligation to cause the funding of the Equity Commitment solely in accordance with, and to the extent expressly permitted by, Section 9.08 of the Merger Agreement, subject to the satisfaction of the conditions set forth in Section 9.08(b) of the Merger Agreement, and subject further to Section 7 and Section 8, as though the Company were a party hereto (and the Company is a third-party beneficiary of this letter agreement only to such extent, and shall have the enforcement rights solely as provided in this clause (b)). None of Holdco’s, Midco’s, Parent’s, Merger Sub’s or the Company’s creditors shall have the right to enforce this letter agreement or to cause Holdco, Midco, Parent, Merger Sub or the Company to enforce this letter agreement against the Sponsor. Parent is a third-party beneficiary of the first sentence of Section 6. Nothing in this letter agreement, express or implied, is intended to confer upon any person other than Holdco, the Sponsor and, to the extent provided in this Section 4, the Company and Parent, any rights or remedies under or by reason of this letter agreement. In no event shall this letter agreement or the Equity Commitment to be funded hereunder be enforced by any person unless (i) such person is also seeking enforcement of each Other Sponsor’s obligations under its Other Sponsor Equity Commitment Letter and/or (ii) each Other Sponsor has satisfied or is prepared to (or will) satisfy its obligations under its Other Sponsor Equity Commitment Letter.

5.    Original Agreement. Each of the Sponsor and Holdco agrees and confirms that the Original Equity Commitment Letter is hereby amended and restated in its entirety, and is in force and effect only as so amended and restated.

6.    No Modification; Entire Agreement. This letter agreement may not be amended or otherwise modified without the prior written consent of Holdco, Parent and the Sponsor. Together with the Merger Agreement, each Other Sponsor Equity Commitment Letter, the Limited Guarantee, each Other Guarantee (as defined in the Limited Guarantee), the Non- Disclosure Agreement dated as of February 22, 2018 and the Interim Investors Agreement, this letter agreement constitutes the sole agreement, and supersedes all prior agreements, understandings and statements, written or oral, between, the Sponsor or any of its Affiliates, on the one hand, and Holdco or any of its Affiliates, on the other hand, with respect to the transactions contemplated hereby. Each of the parties hereto acknowledges that each party and its respective counsel have reviewed this letter agreement 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 letter agreement.

7.    Governing Law. 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.

8.    Dispute Resolution.

a.    Any disputes, actions and proceedings against any party hereto or 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 (the “Rules”) and as may be amended by this Section 8(a). The place of arbitration shall be Hong Kong. The official language of the arbitration shall be English and the arbitration tribunal shall consist of three arbitrators (each, an “Arbitrator”). The claimant(s), irrespective of number, shall nominate jointly one Arbitrator; the respondent(s), irrespective of number, shall nominate jointly one Arbitrator; and a third Arbitrator will be nominated jointly by the first two Arbitrators and shall serve as chairman of the arbitration tribunal. In the event the claimant(s) or respondent(s) or the first two Arbitrators shall fail to nominate or agree on the joint nomination of an Arbitrator or the third Arbitrator within the time limits specified by the Rules, such Arbitrator shall be appointed promptly by the HKIAC. The arbitration tribunal shall have no authority to award punitive or other punitive-type damages. The award of the arbitration tribunal shall be final and binding upon the disputing parties. Any party to an award may apply to any court of competent jurisdiction for enforcement of such award and, for purposes of the enforcement of such award, the parties irrevocably and unconditionally submit to the jurisdiction of any court of competent jurisdiction and waive any defenses to such enforcement based on lack of personal jurisdiction or inconvenient forum.

b.    Notwithstanding the foregoing, the parties hereto hereby consent to and agree that in addition to any recourse to arbitration as set out in this Section 8, 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 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 8(b) is only applicable to the seeking of interim injunctions and does not restrict the application of Section 8(a) in any way.

9.    Counterparts. This letter agreement may be executed in any number of counterparts (including by e-mail of PDF or scanned versions or by facsimile), each such counterpart being deemed to be an original instrument, and all such counterparts shall together constitute the same agreement.

10.    Confidentiality. This letter agreement shall be treated as confidential and is being provided to Holdco solely in connection with the Merger. This letter agreement may not be used, circulated, quoted or otherwise referred to in any document, except with the prior written consent of the Sponsor and Holdco; provided, however, that each of the Sponsor and Holdco may, without such written consent, disclose the existence and content of this letter agreement to the Company, to their respective officers, directors, employees, partners, members, investors, financing sources, advisors (including financial and legal advisors) and any representatives of the foregoing (collectively, “Representatives”), to the Other Sponsors and their respective Representatives and 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 the Sponsor may disclose the existence and content of this letter agreement to any Non-Recourse Party.

11.    Termination. This letter agreement and the obligation of the Sponsor to fund the Equity Commitment will terminate automatically and immediately upon the earliest to occur of (a) the valid termination of the Merger Agreement in accordance with its terms, (b) the Closing, at which time such obligation will be discharged but subject to the performance of such obligation, and (c) the Company or any of its Affiliates asserting a claim that would make the Limited Guarantee become terminable in accordance with the terms thereof.

12.    No Recourse. Notwithstanding anything that may be expressed or implied in this letter agreement or any document or instrument delivered in connection herewith, by its acceptance of the benefits of this letter agreement, Holdco covenants, acknowledges and agrees that no person other than the Sponsor (and its successors and permitted assigns under this letter agreement pursuant to the terms hereof) has any obligations hereunder and that no recourse shall be had hereunder, 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, be imposed on or otherwise be incurred by any Non-Recourse Party, through Holdco, Midco, 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 Holdco against any Non-Recourse Party, by the enforcement of any assessment or by any legal or equitable proceeding, by virtue of any statute, regulation or applicable Law, or otherwise.

13.    Representations and Warranties. The Sponsor hereby represents and warrants to Holdco that (a) the Sponsor has all corporate power and authority to execute, deliver and perform this letter agreement, (b) the execution, delivery and performance of this letter agreement by the Sponsor has been duly and validly authorized and approved by all necessary corporate action by it, (c) this letter agreement has been duly and validly executed and delivered

by the 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) constitutes a valid and legally binding obligation of the Sponsor, enforceable against it in accordance with the terms of this letter agreement (subject to (i) the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other similar laws affecting creditors’ rights generally and (ii) general equitable principles (whether considered in a proceeding in equity or at Law)), (d) no action, consent, permit, authorization by, and no notice to or filing with, any governmental entity is required in connection with the execution, delivery or performance of this letter agreement by the Sponsor, (e) the execution, delivery and performance of this letter agreement by the Sponsor do not (x) violate the organizational documents of the Sponsor, (y) violate any applicable Law binding on the Sponsor or the assets of the Sponsor or (z) constitute a material breach of any material agreement binding on the Sponsor, (f) the Equity Commitment is less than the maximum amount that the Sponsor is permitted to invest in any one portfolio investment pursuant to the terms of its constituent documents or otherwise, and (g) the Sponsor has uncalled capital commitments or otherwise has available funds in excess of the sum of the Equity Commitment and all of its other unfunded contractually binding equity commitments that are currently outstanding.

14.     No Assignment. The Sponsor’s obligation to fund the Equity Commitment may not be assigned or delegated (whether by operation of Law, merger, consolidation or otherwise), except that the Sponsor may assign or delegate all or a portion of its obligations to fund the Equity Commitment to any of the Sponsor’s Affiliates or any other investment fund or investment vehicle advised or managed by the Sponsor or such Affiliate; provided, that any such assignment or delegation shall not relieve the Sponsor of its obligations under this letter agreement to the extent not performed by such Affiliate or investment fund or investment vehicle. Holdco may not assign its rights to any of its Affiliates or other entity owned directly or indirectly by the beneficial owners of Holdco, without the prior written consent of the Sponsor and the Company (which shall be given or withheld solely in the discretion of the Sponsor and the Company). Any purported transfer, assignment or delegation in violation of this Section 14 shall be null and void and of no force and effect.

15.     Interpretation. Headings are used for reference purposes only and do not affect the meaning or interpretation of this letter agreement. When a reference is made in this letter agreement to a Section, such reference shall be to a Section of this letter agreement unless otherwise indicated. The word “including” and words of similar import when used in this letter agreement will mean “including, without limitation,” unless otherwise specified.

[Remainder of page intentionally left blank]

Sincerely,
The Crawford Group, Inc.
By:		/s/ Rick A. Short
Name:		Rick A. Short
Title:		Vice President

 

Agreed to and accepted:
Teamsport Topco Limited
By:
Name:
Title:

 

[SIGNATURE PAGE TO EQUITY COMMITMENT LETTER]

Sincerely,
The Crawford Group, Inc.
By:
Name:
Title:

 

Agreed to and accepted:
Teamsport Topco Limited
By:		/s/ Kenichiro Kagasa
Name:		Kenichiro Kagasa
Title:		Director

 

[SIGNATURE PAGE TO EQUITY COMMITMENT LETTER]

Exhibit 99.17

EXECUTION VERSION

AMENDED AND RESTATED LIMITED GUARANTEE

LIMITED GUARANTEE, dated as of February 18, 2019 (this “Limited Guarantee”), by The Crawford Group, Inc. (the “Guarantor”), in favor of eHi Car Services Limited, an exempted company with limited liability incorporated under the Laws of the Cayman Islands (the “Guaranteed Party”), which amends and restates in its entirety that certain Limited Guarantee, dated as of April 6, 2018 (the “Original Limited Guarantee”), by the Guarantor in favor of the Guaranteed Party.

 

1.

GUARANTEE.

(a)    To induce the Guaranteed Party to enter into that certain Amended and Restated Agreement and Plan of Merger, dated as of February 18, 2019 (as amended, restated, supplemented or otherwise modified from time to time, the “Merger Agreement”), among the Guaranteed Party, Teamsport Parent Limited (“Parent”) and Teamsport Bidco Limited (“Merger Sub”), pursuant to which Merger Sub will merge with and into the Guaranteed Party (the “Merger”), with the Guaranteed Party continuing as the surviving company in the Merger and a wholly-owned Subsidiary of Parent, the Guarantor, intending to be legally bound, hereby absolutely, irrevocably and unconditionally guarantees to the Guaranteed Party, on the terms and conditions set forth herein, the due and punctual payment when due of 31.47% (the “Guaranteed Percentage”) of the payment obligations of Parent with respect to (i) the Parent Termination Fee pursuant to Section 8.06(b) of the Merger Agreement and (ii) any amounts payable pursuant to Section 8.06(d) of the Merger Agreement, in each case of clauses (i) and (ii), if and to the extent those obligations become payable under the Merger Agreement, subject to the terms and limitations of Section 8.06(f) of the Merger Agreement (the “Obligations”); provided that in no event shall the Guarantor’s aggregate liability under this Limited Guarantee exceed US$8,851,026.56 less the amount equal to the product of (A) any amount actually paid by or on behalf of Parent to the Guaranteed Party in respect of the Obligations multiplied by (B) the Guaranteed Percentage (the “Cap”), it being understood that this Limited Guarantee may not be enforced against the Guarantor without giving effect to the Cap (and to the provisions of Section 8 and Section 9). The Guaranteed Party hereby agrees that in no event shall the Guarantor be required to pay to any person under, in respect of, or in connection with, this Limited Guarantee, an amount in excess of the Cap or the Guaranteed Percentage of the Obligations, and that the Guarantor shall not have any obligation or liability to the Guaranteed Party relating to, arising out of or in connection with, this Limited Guarantee or the Merger Agreement other than as expressly set forth herein. The Guaranteed Party further acknowledges that in the event that Parent has satisfied a portion but not all of the Obligations, payment of the Guaranteed Percentage of the unsatisfied Obligations by the Guarantor (or by any other person, including Parent or Merger Sub, on behalf of the Guarantor) shall constitute satisfaction in full of the Guarantor’s obligation to the Guaranteed Party with respect thereto. This Limited Guarantee may be enforced for the payment of money only. All payments hereunder shall be made in lawful money of the United States, or other currencies if otherwise agreed by the parties hereto, in immediately available funds. Concurrently with the delivery of this Limited Guarantee, each party set forth on Schedule A (each, an “Other Guarantor”) is also entering into a limited guarantee or an amended and restated limited guarantee, as applicable, substantially identical to this Limited Guarantee (each, an “Other Guarantee”) with the Guaranteed Party. This Limited

 

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Guarantee shall become effective upon the substantially simultaneous signing of the Other Guarantees. Each capitalized term used and not defined herein shall have the meaning ascribed to it in the Merger Agreement, except as otherwise provided herein.

(b)    All payments made by the Guarantor pursuant to this Limited Guarantee shall be free and clear of any deduction, offset, defense, claim or counterclaim of any kind. If Parent fails to pay or cause to be paid the Obligations as and when due pursuant to Section 8.06(b) or Section 8.06(d) of the Merger Agreement, as applicable, and subject to the other relevant terms and limitations of the Merger Agreement, then the Guarantor’s liabilities to the Guaranteed Party hereunder in respect of the Obligations shall, upon the Guaranteed Party’s demand, become immediately due and payable and the Guaranteed Party may at any time and from time to time, at the Guaranteed Party’s option, and so long as Parent remains in breach of the Obligations, take any and all actions available hereunder or under applicable Law to collect the Obligations from the Guarantor, subject to the Cap.

(c)    The Guarantor agrees to pay on demand all reasonable and documented out-of-pocket expenses (including reasonable fees and expenses of counsel) incurred by the Guaranteed Party in connection with the enforcement of its rights hereunder in the event that (i) the Guarantor asserts in any arbitration, litigation or other proceeding that this Limited Guarantee is illegal, invalid or unenforceable in accordance with its terms and the Guaranteed Party prevails in such arbitration, litigation or other proceeding or (ii) the Guarantor fails or refuses to make any payment to the Guaranteed Party hereunder when due and payable and it is determined judicially or by arbitration that the Guarantor is required to make such payment hereunder.

(d)    In furtherance of the foregoing, the Guarantor acknowledges that the Guaranteed Party may, in its sole discretion, bring and prosecute a separate action or actions against the Guarantor for the full amount of the Guarantor’s Guaranteed Percentage of the Obligations (subject to the Cap), regardless of whether an action is brought against Parent, Merger Sub or any Other Guarantor or whether Parent, Merger Sub or any Other Guarantor is joined in any such action or actions.

 

2.

NATURE OF GUARANTEE.

The Guaranteed Party shall not be obligated to file any claim relating to the Obligations in the event that Parent or Merger Sub becomes subject to a bankruptcy, reorganization or similar proceeding, and the failure of the Guaranteed Party to so file shall not affect the Guarantor’s obligations hereunder. Subject to the terms hereof, the Guarantor’s liability hereunder is absolute, unconditional, irrevocable and continuing irrespective of any modification, amendment or waiver of or any consent to departure from the Merger Agreement that may be agreed to by Parent or Merger Sub (except where this Limited Guarantee is terminated in accordance with Section 8). In the event that any payment to the Guaranteed Party in respect of the Obligations is rescinded or must otherwise be returned for any reason whatsoever, the Guarantor shall remain liable hereunder with respect to its Guaranteed Percentage of the Obligations (subject to the Cap) as if such payment had not been made by the Guarantor. This Limited Guarantee is an unconditional guarantee of payment and not of collection. This Limited Guarantee is a primary obligation of the Guarantor and is not merely the creation of a surety relationship, and the Guaranteed Party shall not be required to proceed against Parent or Merger Sub first before proceeding against the Guarantor hereunder.

 

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3.

CHANGES IN OBLIGATIONS, CERTAIN WAIVERS.

(a)    The Guarantor agrees that the Guaranteed Party may at any time and from time to time, without notice to or further consent of the Guarantor, extend the time of payment of any of the Obligations, and may also make any agreement with Parent and/or Merger Sub for the extension, renewal, payment, compromise, discharge or release thereof, in whole or in part, or for any modification of the terms thereof or of any agreement between the Guaranteed Party and Parent or Merger Sub without in any way impairing or affecting the Guarantor’s obligations under this Limited Guarantee. The Guarantor agrees that its obligations hereunder shall not be released or discharged (except in the case where this Limited Guarantee is terminated in accordance with Section 8), in whole or in part, or otherwise affected by (i) the failure or delay on the part of the Guaranteed Party to assert any claim or demand or to enforce any right or remedy against Parent, Merger Sub or any Other Guarantor, (ii) any change in the time, place or manner of payment of the Obligations or any rescission, waiver, compromise, consolidation or other amendment or modification of any of the terms or provisions of the Merger Agreement made in accordance with the terms thereof or any agreement evidencing, securing or otherwise executed in connection with the Obligations (in each case, except in the event of any amendment to the circumstances under which the Obligations are payable), (iii) any legal or equitable discharge or release (other than a discharge or release as a result of payment in full of the Guaranteed Percentage of the Obligations in accordance with their terms, a discharge or release of Parent and/or Merger Sub with respect to the Obligations under the Merger Agreement, or as a result of defenses to the payment of the Obligations that would be available to Parent and/or Merger Sub under the Merger Agreement) of any person now or hereafter liable with respect to any of the Obligations or otherwise interested in the Transactions, (iv) any change in the corporate existence, structure or ownership of Parent, Merger Sub or any other person now or hereafter liable with respect to any of the Obligations or otherwise interested in the Transactions, (v) any insolvency, bankruptcy, reorganization or other similar proceeding affecting Parent, Merger Sub or any other person now or hereafter liable with respect to any of the Obligations or otherwise interested in the Transactions, (vi) the existence of any claim, set-off or other right which the Guarantor may have at any time against Parent or Merger Sub or the Guaranteed Party, whether in connection with the Obligations or otherwise, or (vii) the adequacy of any other means the Guaranteed Party may have of obtaining payment of the Obligations.

(b)    To the fullest extent permitted by Law, the Guarantor hereby expressly waives any and all rights or defenses arising by reason of any Law that would otherwise require any election of remedies by the Guaranteed Party. The Guarantor waives promptness, diligence, notice of the acceptance of this Limited Guarantee and of the Obligations, presentment, demand for payment, notice of non-performance, default, dishonor and protest, notice of any of the Obligations incurred and all other notices of any kind (other than notices to Parent and/or Merger Sub pursuant to the Merger Agreement or as expressly required pursuant to this Limited Guarantee), all defenses that may be available by virtue of any valuation, stay, moratorium Law or other similar Law now or hereafter in effect, any right to require the marshalling of assets of Parent or Merger Sub or any other person interested in the Transactions (including any Other Guarantor), and all suretyship defenses generally (other than defenses to the payment of the Obligations that are available to Parent and/or Merger Sub under the Merger Agreement or a breach by the Guaranteed Party of this Limited Guarantee). The Guarantor acknowledges that it will receive substantial direct and indirect benefits from the Transactions and that the waivers set forth in this Limited Guarantee are knowingly made in contemplation of such benefits.

(c)    The Guaranteed Party hereby covenants and agrees that it shall not institute, directly or indirectly, and shall cause its Subsidiaries and its Affiliates not to institute, directly or

 

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indirectly, any proceeding or bring any other claim (whether in tort, contract or otherwise) arising under, or in connection with, the Merger Agreement, the Transactions, the Amended and Restated Equity Commitment Letter between the Guarantor and Teamsport Topco Limited (the “Equity Commitment Letter” and, together with each other equity commitment letter and amended and restated equity commitment letter, as applicable, between each Other Guarantor and Teamsport Topco Limited, collectively, the “Equity Commitment Letters”), or the Contribution and Support Agreement, against the Guarantor or any Non-Recourse Party (as defined below), except for claims against the Guarantor under this Limited Guarantee (subject to the limitations set forth herein) and against each Other Guarantor under its Other Guarantee (subject to the limitations set forth therein). The Guarantor hereby covenants and agrees that it shall not institute, directly or indirectly, and shall cause its Subsidiaries and its Affiliates not to institute, directly or indirectly, any proceeding asserting or assert as a defense in any proceeding, subject to clause (ii) of the last sentence of clause (d) hereof, that this Limited Guarantee is illegal, invalid or unenforceable in accordance with its terms.

(d)    The Guarantor hereby unconditionally and irrevocably waives and agrees not to exercise any rights that it may now have or hereafter acquire against Parent or Merger Sub that arise from the existence, payment, performance, or enforcement of the Guarantor’s obligations under or in respect of this Limited Guarantee (subject to the Cap) or any other agreement in connection therewith, including any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of the Guaranteed Party against Parent, Merger Sub or any Other Guarantor, whether or not such claim, remedy or right arises in equity or under contract, statute or common Law, including the right to take or receive from Parent, Merger Sub or any Other Guarantor, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim, remedy or right, unless and until all of the Guaranteed Percentage of the Obligations and all other amounts payable under this Limited Guarantee shall have been paid in full in immediately available funds. If any amount shall be paid to the Guarantor in violation of the immediately preceding sentence at any time prior to the payment in full in immediately available funds of the Guaranteed Percentage of the Obligations and all other amounts payable under this Limited Guarantee (subject to the Cap), such amount shall be received and held in trust for the benefit of the Guaranteed Party, shall be segregated from other property and funds of the Guarantor and shall forthwith be paid or delivered to the Guaranteed Party in the same form as so received (with any necessary endorsement or assignment) to be credited and applied to the Obligations and all other amounts payable under this Limited Guarantee, whether matured or unmatured, or to be held as collateral for the Guaranteed Percentage of the Obligations or other amounts payable under this Limited Guarantee thereafter arising. Notwithstanding anything to the contrary contained in this Limited Guarantee (but subject to Section 3(a)), the Guaranteed Party hereby agrees that: (i) to the extent Parent and Merger Sub are relieved of any of their obligations with respect to the Parent Termination Fee, the Guarantor shall be similarly relieved of its Guaranteed Percentage of such obligations under this Limited Guarantee, and (ii) the Guarantor shall have all defenses to the payment of its obligations under this Limited Guarantee (which in any event shall be subject to the Cap) that would be available to Parent and/or Merger Sub under the Merger Agreement with respect to the Obligations.

 

4.

NO WAIVER; CUMULATIVE RIGHTS.

No failure on the part of the Guaranteed Party to exercise, and no delay in exercising, any right, remedy or power hereunder shall operate as a waiver thereof; nor shall any single or partial

 

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exercise by the Guaranteed Party of any right, remedy or power hereunder preclude any other or future exercise of any right, remedy or power hereunder. Each and every right, remedy and power hereby granted to the Guaranteed Party or allowed it by Law shall be cumulative and not exclusive of any other, and may be exercised by the Guaranteed Party at any time or from time to time. The Guaranteed Party shall not have any obligation to proceed at any time or in any manner against, or exhaust any or all of the Guaranteed Party’s rights against, Parent or any other person (including any Other Guarantor) liable for any of the Obligations prior to proceeding against the Guarantor hereunder, and the failure by the Guaranteed Party to pursue rights or remedies against Parent or Merger Sub (or any Other Guarantor) 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.

 

5.

REPRESENTATIONS AND WARRANTIES.

The Guarantor hereby represents and warrants that:

(a)    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 Law, regulation, rule, decree, order, judgment or contractual restriction binding on the Guarantor or its assets or properties;

(b)    except as is not, individually or in the aggregate, reasonably likely to impair or delay the Guarantor’s performance of its obligations hereunder 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;

(c)    assuming due execution and delivery of this Limited Guarantee and the Merger Agreement by the Guaranteed Party, this Limited Guarantee constitutes a legal, valid and binding obligation of the Guarantor enforceable against the Guarantor in accordance with its terms, subject to (i) the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other similar Laws affecting creditors’ rights generally, and (ii) general equitable principles (whether considered in a proceeding in equity or at Law); and

(d)    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 6) for so long as this Limited Guarantee shall remain in effect in accordance with Section 8.

 

6.

NO ASSIGNMENT.

Neither the Guarantor nor the Guaranteed Party may assign or delegate (whether by operation of Law, merger, consolidation or otherwise) its rights, interests or obligations hereunder to any other person, in whole or in part, without the prior written consent of the other party hereto , except that the Guarantor may assign or delegate all or part of its rights, interests and obligations hereunder, without the prior written consent of the Guaranteed Party, to (a) any Other Guarantor or (b) any of the Guarantor’s Affiliates, or any other investment fund or investment vehicle advised or managed by the Guarantor or such Affiliate, to the extent that such person has been allocated, in accordance with the Equity Commitment Letter, all or a portion of

 

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the Guarantor’s investment commitment to Holdco; provided that any such assignment or delegation shall not relieve the Guarantor of its obligations hereunder to the extent not performed by such Other Guarantor, Affiliate, fund or investment vehicle. Any assignment or delegation in violation of this Section 6 shall be null and void and of no force and effect.

 

7.

NOTICES.

All notices, requests, claims, demands and other communications hereunder shall be given by the means specified in the Merger Agreement (and shall be deemed given as specified therein), as follows:

if to the Guarantor:

The Crawford Group, Inc.

600 Corporate Park Drive

St. Louis, MO 63105

U.S.A.

Attention: Pamela M. Nicholson, Chief Executive Officer

Facsimile: +1 314 512 4070

Email: Pamela.M.Nicholson@ehi.com

with a copy to:

The Crawford Group, Inc.

c/o Enterprise Holdings, Inc.

600 Corporate Park Drive

St. Louis, MO 63105

U.S.A.

Attention: Michael W. Andrew, Senior Vice President and General Counsel

Facsimile: +1 314-512-5823

Email: Mike.Andrew@ehi.com

If to the Guaranteed Party, as provided in the Merger Agreement.

 

8.

CONTINUING GUARANTEE.

(a)    Subject to the last sentence of Section 3(d), this Limited Guarantee may not be revoked or terminated and shall remain in full force and effect and shall be binding on the Guarantor, its successors and assigns until the earliest to occur of (i) all of the Obligations (subject to the Cap) payable under this Limited Guarantee having been paid in full by the Guarantor, (ii) the Effective Time, (iii) the termination of the Merger Agreement in accordance with its terms by mutual consent of Parent and the Guaranteed Party or under circumstances in which Parent and Merger Sub would not be obligated to pay the Parent Termination Fee under Section 8.06(b) of the Merger Agreement and (iv) ninety (90) days after any termination of the Merger Agreement in accordance with its terms under circumstances in which Parent and Merger Sub would be obligated to pay the Parent Termination Fee under Section 8.06(b) of the Merger Agreement if the Guaranteed Party has not presented a bona fide written claim for payment of any Obligation to the Guarantor by such 90^th day; provided that if the Guaranteed Party has presented such claim to the Guarantor by such date, this Limited Guarantee shall terminate upon the date such claim is finally satisfied or otherwise resolved by agreement of the parties hereto or pursuant to Section 10. The Guarantor shall have no further obligations under this Limited Guarantee following termination in accordance with this Section 8.

 

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(b)    Notwithstanding the foregoing, in the event that the Guaranteed Party or any of its Affiliates asserts in any litigation or other proceeding relating to this Limited Guarantee (i) that the provisions of Section 1 limiting the Guarantor’s maximum aggregate liability to the Cap or that the provisions of Sections 8, 9, 10, 13, 14 or the last sentence of Section 3(d) are illegal, invalid or unenforceable in whole or in part, (ii) that the Guarantor is liable in excess of or to a greater extent than the Guaranteed Percentage of the Obligations or the Cap, or (iii) any theory of liability against the Guarantor or any Non-Recourse Parties (as defined below) with respect to the Merger Agreement, the Equity Commitment Letter, the Contribution and Support Agreement or the Transactions or the liability of the Guarantor under this Limited Guarantee (as limited by the provisions hereof, including Section 1), other than the Retained Claims (as defined below), then (x) the obligations of the Guarantor under this Limited Guarantee shall terminate ab initio and shall thereupon 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 Parties shall have any liability whatsoever (whether at Law or in equity, whether sounding in contract, tort, statute or otherwise) to the Guaranteed Party or any of its Affiliates with respect to the Merger Agreement, the Equity Commitment Letter, the Contribution and Support Agreement, the Transactions, this Limited Guarantee or any other agreement or instrument delivered in connection with this Limited Guarantee or the Merger Agreement (including the Equity Commitment Letters and the Contribution and Support Agreement).

 

9.

NO RECOURSE.

Notwithstanding anything to the contrary 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 agrees and acknowledges that (a) no person other than the Guarantor has any obligations hereunder, (b) the Guaranteed Party has no right of recovery under this Limited Guarantee or 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, Affiliates (other than any assignee under Section 6), members, managers, or general or limited partners of any of the Guarantor, Parent, Merger Sub or any Other Guarantor, or any former, current or future equity holder, controlling person, director, officer, employee, general or limited partner, member, manager, Affiliate (other than any assignee under Section 6), 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 (or limited partnership or limited liability company) veil, by or through theories of agency, alter ego, unfairness, undercapitalization or single business enterprise, by or through a claim by or on behalf of Parent and/or Merger Sub against any Non-Recourse Party (including any claim to enforce the Equity Commitment Letter or the Contribution and Support Agreement), by the enforcement of any assessment or by any legal or equitable proceeding, by virtue of any statute, regulation or applicable Law, or otherwise, and (c) the only rights of recovery and claims that the Guaranteed Party has in respect of the Merger Agreement or the Transactions are its rights to recover from, and assert claims against, (i) Parent and Merger Sub under and to the extent expressly provided in the Merger Agreement, (ii) the Guarantor (but not

 

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any Non-Recourse Party) under and to the extent expressly provided in this Limited Guarantee (subject to the Cap and the other limitations described herein), (iii) the Other Guarantors pursuant to and subject to the limitations set forth in the Other Guarantees and (iv) the Guarantor and the Other Guarantors and their respective successors and assigns under the Equity Commitment Letters pursuant to and in accordance with the terms thereof (claims under (i), (ii), (iii) and (iv) collectively, the “Retained Claims”). The Guaranteed Party acknowledges the separate corporate existence of Parent and Merger Sub and 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 unless and until the Closing occurs. Other than as expressly provided under Section 9.08 of the Merger Agreement and Section 4 of the Equity Commitment Letter, recourse against the Guarantor under and pursuant to the terms of this Limited Guarantee and against the Other Guarantors pursuant to the terms of the Other Guarantees shall be the sole and exclusive remedy of the Guaranteed Party and all of its Affiliates against the Guarantor and the Non-Recourse Parties in respect of any liabilities or obligations arising under, or in connection with, this Limited Guarantee, the Other Guarantees, the Merger Agreement, the Equity Commitment Letters, the Contribution and Support Agreement or the Transactions, including by piercing of the corporate (or limited partnership or limited liability company) veil, or by a claim by or on behalf of Parent or Merger Sub. The Guaranteed Party hereby covenants and agrees that, other than with respect to the Retained Claims, it shall not, and it shall cause its Affiliates not to, institute any proceeding or bring any claim in any way under, in connection with or in any manner related to the Transactions (whether at Law or in equity, whether sounding in contract, tort, statute or otherwise) against any Non-Recourse Party. No person other than the Guarantor, the Guaranteed Party and the Non-Recourse Parties shall have any rights or remedies under, in connection with or in any manner related to this Limited Guarantee or the transactions contemplated hereby. 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 or the Other Guarantors or their respective successors and assigns under the Merger Agreement, the Equity Commitment Letters, this Limited Guarantee or the Other Guarantees shall be Non-Recourse Parties.

 

10.

GOVERNING LAW; DISPUTE RESOLUTION.

(a)    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 conflicts of law principles thereof that would subject such matter to the Laws of another jurisdiction other than the State of New York.

(b)    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 (the “HKIAC”) and resolved in accordance with the Arbitration Rules of HKIAC in force at the relevant time (the “Rules”) and as may be amended by this Section 10(b). 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

 

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tribunal. In the event the claimant(s) or respondent(s) or the first two Arbitrators shall fail to nominate or agree on the joint nomination of an Arbitrator or the third Arbitrator within the time limits specified by the Rules, such Arbitrator shall be appointed promptly by the HKIAC. The arbitration tribunal shall have no authority to award punitive or other punitive-type damages. The award of the arbitration tribunal shall be final and binding upon the disputing parties. Any party to an award may apply to any court of competent jurisdiction for enforcement of such award and, for purposes of the enforcement of such award, the parties irrevocably and unconditionally submit to the jurisdiction of any court of competent jurisdiction and waive any defenses to such enforcement based on lack of personal jurisdiction or inconvenient forum.

(c)    Notwithstanding the foregoing, the parties hereto consent to and agree that in addition to any recourse to arbitration as set out in Section 10(b), any party may, to the extent permitted under the Laws of the jurisdiction where application is made, seek an interim injunction from a court or other authority with competent jurisdiction and, notwithstanding that this Agreement is governed by the Laws of 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 10(c) is only applicable to the seeking of interim injunctions and does not restrict the application of Section 10(b) in any way.

 

11.

COUNTERPARTS.

This Limited Guarantee may be executed in any number of counterparts (including by e-mail of PDF or scanned versions or facsimile), each such counterpart when executed being deemed to be an original instrument, and all such counterparts shall together constitute one and the same agreement.

 

12.

NO THIRD PARTY BENEFICIARIES.

Except as provided in Section 9, 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 Limited Guarantee, and this Limited Guarantee is not intended to, and does not, confer upon any person other than the parties hereto any rights or remedies hereunder, including, the right to rely upon the representations and warranties set forth herein.

 

13.

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 with the written consent of the Guarantor; provided that the parties may, without such written consent, disclose the existence and content of 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 other Transactions as permitted by or provided in the Merger Agreement and the Guarantor may disclose this Limited Guarantee 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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14.

SPECIFIC PERFORMANCE.

The parties hereto agree that irreparable damages would occur in the event any provision of this Limited Guarantee were not performed in accordance with the terms hereof by the parties and that money damages or other legal remedies would not be an adequate remedy for such damages. Accordingly, the parties hereto acknowledge and hereby agree that in the event of any breach by the Guarantor, the Guaranteed Party shall be entitled to specific performance of the terms hereof, including an injunction or injunctions to prevent breaches of this Limited Guarantee, in addition to any other remedy at Law or equity. The Guarantor (i) waives any defenses in any action for an injunction or other appropriate form of specific performance or equitable relief, including the defense that a remedy at Law would be adequate and (ii) waives any requirement under any Law to post a bond or other security as a prerequisite to obtaining an injunction or other appropriate form of specific performance or equitable relief.

 

15.

MISCELLANEOUS.

(a)    Each of the Guarantor and the Guaranteed Party agrees and confirms that the Original Limited Guarantee is hereby amended and restated in its entirety, and is in force and effect only as so amended and restated.

(b)    This Limited Guarantee, together with the Merger Agreement (including any schedules, exhibits and annexes thereto and any other documents and instruments referred to thereunder, including the Equity Commitment Letters, the Contribution and Support Agreement and the Other Guarantees) contains the entire agreement between the parties relative to the subject matter hereof and supersedes all prior agreements and undertakings between the parties with respect to the subject matter hereof. No modification or waiver of any provision hereof shall be enforceable unless approved by the Guaranteed Party and the Guarantor in writing.

(c)    Any term or provision hereof that is prohibited 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 without giving effect to the limitation of the amount payable hereunder to the Cap and the provisions of Sections 8 and 9 and this Section 15(c).

(d)    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. When a reference is made in this Limited Guarantee to a Section, such reference shall be to a Section of this Limited Guarantee unless otherwise indicated. The word “including” and words of similar import when used in this Limited Guarantee will mean “including, without limitation,” unless otherwise specified.

(e)    Each of the parties hereto acknowledges that each party and its respective 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.

[Remainder of page intentionally left blank]

 

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IN WITNESS WHEREOF, the Guarantor has executed and delivered this Limited Guarantee as of the date first written above by its director or officer thereunto duly authorized.

 

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 thereunto duly authorized.

 

SCHEDULE A

Other Guarantors

MBK Partners Fund IV, L.P.

L & L Horizon, LLC

Dongfeng Asset Management Co. Ltd.

Ctrip Investment Holding Ltd.

Ocean Imagination L.P.

Exhibit 99.18

EXECUTION VERSION

TERMINATION AGREEMENT

This TERMINATION AGREEMENT (this “Agreement”), is dated as of February 18, 2019 and is entered into by and among MBK Partners Fund IV, L.P. (“MBKP”), The Baring Asia Private Equity Fund VI, L.P.1 (“Baring LP1”), The Baring Asia Private Equity Fund VI, L.P.2 (“Baring LP2”), The Baring Asia Private Equity Fund VI Co-investment, L.P. (“Baring Co-invest” and, together with Baring LP1 and Baring LP2, the “Baring Sponsors”), The Crawford Group, Inc., a Missouri corporation (“Crawford”), L & L Horizon, LLC, a Delaware limited liability company (“Horizon”), BPEA Teamsport Limited (“BPEA Teamsport” and, together with the Baring Sponsors, “Baring”), Dongfeng Asset Management Co. Ltd. (“Dongfeng”), RedStone Capital Management (Cayman) Limited, a Cayman Islands exempted company (“Redstone” and, together with Baring, the “Exiting Parties”), Teamsport Topco Limited, a Cayman Islands exempted company (“Holdco”), Teamsport Midco Limited, a Cayman Islands exempted company and a wholly-owned subsidiary of Holdco (“Midco”), Teamsport Parent Limited, a Cayman Islands exempted company and a wholly-owned subsidiary of Midco (“Parent”), Teamsport Bidco Limited, a Cayman Islands exempted company and a wholly-owned subsidiary of Parent (“Merger Sub” and, together with MBKP, Horizon, Crawford, Dongfeng, Holdco, Midco and Parent, the “Continuing Parties” and, the Continuing Parties and the Exiting Parties, each an “IIA Party” and, collectively, the “IIA Parties), and Fastforward Company Ltd, a Cayman Islands exempted company and an indirect, wholly-owned subsidiary of MBKP (“Fastforward”). The IIA Parties and Fastforward are hereinafter collectively referred to as the “Parties”, and individually, a “Party”. Capitalized terms used but not defined herein shall have the meanings given thereto in the Merger Agreement (as defined below) or the Interim Investors Agreement (as defined below), as applicable.

RECITALS

WHEREAS, Parent, Merger Sub and eHi Car Services Limited, a Cayman Islands exempted company (the “Company”), entered into an Agreement and Plan of Merger, dated as of April 6, 2018 (as may be amended, restated, supplemented or otherwise modified from time to time, the “Merger Agreement”), pursuant to which Merger Sub will be merged with and into the Company (the “Merger”), with the Company becoming the surviving entity and a wholly-owned subsidiary of Parent;

WHEREAS, the IIA Parties entered into an Interim Investors Agreement, dated as of April 6, 2018 (as may be amended, restated, supplemented or otherwise modified from time to time, the “Interim Investors Agreement”), which governs the actions of Holdco, Midco, Parent and Merger Sub and the relationship among the IIA Parties with respect to the transactions contemplated by the Merger Agreement, including the Merger (collectively, the “Transactions”);

WHEREAS, (a) each Baring Sponsor entered into a letter agreement (collectively, the “Baring Equity Commitment Letters”) and (b) Redstone entered into a letter agreement (the “Redstone Equity Commitment Letter” and, together with the Baring Equity Commitment Letters, the “Terminated Equity Commitment Letters”), each dated as of April 6, 2018, in favor of Holdco, pursuant to which each of Redstone and the Baring Sponsors agreed, subject to the terms and conditions set forth therein, to make a direct or indirect equity investment in Holdco immediately prior to the Closing in connection with the Transactions;

WHEREAS, (a) each Baring Sponsor executed a limited guarantee (collectively, the “Baring Limited Guarantees”) and (b) Redstone executed a limited guarantee (the “Redstone Limited Guarantee” and, together with the Baring Limited Guarantees, the “Terminated Limited Guarantees”), each dated as of April 6, 2018, in favor of the Company with respect to certain obligations of Parent under the Merger Agreement;

WHEREAS, each of Crawford, BPEA Teamsport, Horizon, Dongfeng, Holdco, Midco and Parent entered into a Contribution and Support Agreement, dated as of April 6, 2018 (as may be amended, restated, supplemented or otherwise modified from time to time, the “Contribution and Support Agreement”), pursuant to which, among other things, BPEA Teamsport agreed to contribute certain Rollover Shares to Holdco in connection with the consummation of the Transactions;

WHEREAS, each Exiting Party desires to withdraw from its participation in the Transactions, and, pursuant to Section 3.2 of the Interim Investors Agreement and Section 6.5 of the Contribution and Support Agreement, the IIA Parties desire to terminate the Interim Investors Agreement and the Contribution and Support Agreement solely with respect to each applicable Exiting Party, in each case effective as of the date hereof;

WHEREAS, pursuant to Section 1.1 of the Interim Investors Agreement, Section 6 of each Terminated Equity Commitment Letter and Section 15(a) of each Terminated Limited Guarantee, the IIA Parties desire to terminate the Terminated Equity Commitment Letters and Terminated Guarantees, in each case, effective as of the date hereof; and

WHEREAS, BPEA Teamsport owns one (1) share, par value US$0.01 per share, of Holdco, which represents 100% of the issued and outstanding shares of Holdco (the “Holdco Share”) and, in consideration of the transactions contemplated by this Agreement, desires to transfer, assign, sell and convey to Fastforward all right, title and interest in and to the Holdco Share.

NOW, THEREFORE, in consideration of the foregoing, the mutual covenants and agreements set forth herein, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows:

1.    Termination of Agreements.

(a)     Each of the IIA Parties agrees and confirms that the Interim Investors Agreement (including any amendments, modifications or agreements with respect thereto) is hereby irrevocably terminated solely with respect to each Exiting Party and, solely as it relates to each Exiting Party, is of no further force or effect, including any provision of the Interim Investors Agreement that by its terms would otherwise have survived the termination or expiration of the Interim Investors Agreement as it relates to such Exiting Party. From and after the date hereof, none of the Exiting Parties shall have any further rights, obligations or liabilities under the Interim Investors Agreement (including any amendments, modifications or agreements with respect thereto).

(b)     Each of the IIA Parties agrees and confirms that the Contribution and Support Agreement is hereby irrevocably terminated solely with respect to BPEA Teamsport and, solely as it relates to BPEA Teamsport, is of no further force or effect, including any provision of the Contribution and Support Agreement that by its terms would otherwise have survived the termination or expiration of the Contribution and Support Agreement as it relates to BPEA Teamsport. From and after the date hereof, BPEA Teamsport shall have no further rights, obligations or liabilities under the Contribution and Support Agreement.

 

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(c)    Each of the IIA Parties agrees and confirms that each Terminated Equity Commitment Letter and each Terminated Limited Guarantee is hereby irrevocably terminated and is of no further force and effect, including any provision of such Terminated Equity Commitment Letter or Terminated Limited Guarantee that by its terms would otherwise have survived the termination or expiration of such Terminated Equity Commitment Letter or Terminated Limited Guarantee. From and after the date hereof, neither the Baring Sponsors nor Redstone shall have any further obligations or liabilities under their respective Terminated Equity Commitment Letters and Terminated Limited Guarantees.

2.    Allocation of Costs.

(a)    The IIA Parties hereby acknowledge and agree that, notwithstanding anything in the Interim Investors Agreement to the contrary, (i) Baring shall bear, and timely pay, (A) the fees and expenses incurred by the IIA Parties in connection with the Transactions set forth on Schedule I attached hereto and (B) the fees and expenses incurred by Baring in connection with the Transactions, including any fees and expenses in connection with the Transactions that, as of the date hereof, have previously been paid by Baring (the fees and expenses contemplated by clauses (A) and (B), the “Baring Fees”), and (ii) MBKP shall bear, and timely pay, the fees and expenses incurred by the IIA Parties set forth on Schedule II.

(b)    The IIA Parties hereby acknowledge and agree that, except for the Baring Fees, in no event shall Baring bear, or have any obligation to pay, any Shared Transaction Expenses or Shared DD Expenses, any and all of which shall be borne by the other parties to the Interim Investors Agreement.

3.    Releases and Waivers; Director Indemnification; Non-Disparagement.

(a)    Subject to Section 3(b), each Continuing Party, on such Continuing Party’s own behalf and, on behalf of its Affiliates and its and their respective successors, assigns, directors, officers, employees, partners, shareholders, members, and any other Person claiming by, through or under any of the foregoing, does hereby unconditionally and irrevocably release, waive and forever discharge, each Exiting Party, and each of its Affiliates and its and their respective past and present directors, officers, managers, employees, agents, predecessors, successors, assigns, shareholders, members and partners (the “Released Exiting Parties”), and each Exiting Party, on such Exiting Party’s own behalf and, on behalf of its Affiliates and its and their respective successors, assigns, directors, officers, employees, partners, shareholders, members, and any other Person claiming by, through or under any of the foregoing, does hereby unconditionally and irrevocably release, waive and forever discharge, each Continuing Party, and each of its Affiliates and its and their respective past and present directors, officers, managers, employees, agents, predecessors, successors, assigns, shareholders, members and partners (the “Released Continuing Parties”), in each case, from any and all claims, demands, damages, judgments, causes of action and liabilities of any nature whatsoever, whether or not known, suspected or claimed, arising directly or indirectly out of or related to events, facts, conditions or circumstances existing or arising on or prior to the date hereof with respect to the Interim Investors Agreement, the Contribution and Support Agreement, the Terminated Equity Commitment Letters, the Terminated Limited Guarantees, the Merger Agreement or the Transactions (all of the foregoing, collectively, the “Released Claims”).

 

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(b)    Notwithstanding anything in Section 3(a) to the contrary, the “Released Claims” expressly exclude, and the provisions of Section 3(a) shall in no event release, waive or otherwise diminish, the obligations, liabilities and rights of any Party under this Agreement or under any other Contract entered into on or after the date of this Agreement to which a Released Exiting Party or a Released Continuing Party, as applicable, is a party (whether in connection with the Transactions or otherwise).

(c)    The provisions of the organizational documents of Holdco, Midco, Parent and Merger Sub with respect to indemnification, advancement and exculpation of their respective directors and officers as in effect on the date hereof shall not be amended, repealed or otherwise modified for a period of six (6) years from the date hereof in any manner that would adversely affect the rights thereunder of their respective current or former directors or officers.

(d)    During the period commencing on the date hereof and ending on the date that is one (1) year after the date of this Agreement, (i) each Exiting Party shall not, and shall cause its Affiliates not to, make any public statement that disparages, or would be reasonably likely to harm the reputation of, any Released Continuing Party, and (ii) each Continuing Party shall not, and shall cause its Affiliates not to, make any public statement that disparages, or would be reasonably likely to harm the reputation of, any Released Exiting Party; provided, however, that any statement of fact otherwise prohibited by this Section 3(c) may nevertheless be made without violating this Section 3(c) if such statement is required by applicable Law (including any such statement made in response to any inquiry under oath or in response to any inquiry by a Governmental Authority) as reasonable determined by such person based on the advice of outside counsel and, to the extent practicable, upon reasonable prior notice to the Parties of the nature of the statement and the basis pursuant to which it is required to be made.

4.    Transfer of Holdco Share.

(a)    In consideration of the transactions contemplated by this Agreement, BPEA Teamsport hereby agrees to, on the date hereof, (a) transfer, assign, sell and covey to Fastforward all right, title and interest in and to the Holdco Share, free and clear of all Liens, and (b) (i) deliver to Fastforward an instrument of transfer in the form attached hereto as Exhibit A, duly executed by BPEA Teamsport, evidencing the transfer of the Holdco Share to Fastforward, free and clear of all Liens, (ii) procure the resignation of each director and officer, if any, of each of Holdco, Midco, Parent and Merger Sub and (iii) use reasonable efforts to assist Fastforward in appointing directors designated by Fastforward to replace such resigning directors of Holdco, Midco, Parent and Merger Sub.

5.    Representations and Warranties of the Parties. Except for the representations and warranties in Section 5(e), which are made solely by BPEA Teamsport to Fastforward, each Party hereby represents and warrants to the other Parties that:

(a)    Such Party is duly incorporated or formed, validly existing and in good standing under the Laws of the jurisdiction of its incorporation or formation.

(b)    Such Party has all necessary power and authority to execute and deliver this Agreement and to perform its obligations hereunder. The execution, delivery and performance of this Agreement by such Party have been duly and validly authorized by all necessary action, and no other action on the part of such Party is necessary to authorize the

 

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execution, delivery and performance of this Agreement. This Agreement has been duly and validly executed and delivered by such Party and, assuming due authorization, execution and delivery by the other Parties, constitutes a legal, valid and binding obligation of such Party, enforceable against such Party in accordance with its terms, subject to the Bankruptcy and Equity Exception.

(c)    The execution, delivery and performance of this Agreement by such Party do not and will not conflict with or contravene any Law or contractual restriction binding on such Party or its assets or properties.

(d)    The execution, delivery and performance of this Agreement by such Party do not and will not require any consent, approval, authorization or permit of, or filing with or notification to, any Governmental Authority, except for the filings and/or notices pursuant to Section 13 of the Exchange Act and the rules and regulations thereunder.

(e)    (i) BPEA Teamsport holds of record, owns beneficially and has good and valid title to, and the legal right and power to sell and transfer, the Holdco Share, free and clear of any and all Liens, other than any applicable transfer restrictions arising under applicable securities Laws, (ii) BPEA Teamsport is not a party to any voting trust, proxy or other Contract with respect to the voting of the Holdco Share, (iii) BPEA Teamsport is not a party to any option, warrant, purchase right or other Contract that would require BPEA Teamsport to sell, transfer or otherwise dispose of the Holdco Share (other than to Fastforward pursuant to the terms of this Agreement) and (iv) the Holdco Share represents all of the issued and outstanding equity securities of Holdco.

6.    Confidentiality. This Agreement shall be treated as confidential and may not be used, circulated, quoted or otherwise referred to in any document, except with the prior written consent of the Parties; provided, however, that each Party may, without such written consent, disclose the existence and content of this Agreement to its officers, directors, employees, partners, members, investors, limited partners of affiliated funds, financing sources, advisors (including financial and legal advisors) and any representatives of the foregoing and 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, the Transactions or this Agreement, and each Party may disclose the existence and content of this Agreement to such Party’s Released Exiting Parties or Released Continuing Parties, as applicable.

7.    Governing Law. This Agreement shall be governed by and construed 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. Any disputes, actions and proceedings against any Party or arising out of or in any way relating to this Termination Agreement shall be submitted to the Hong Kong International Arbitration Centre (the “HKIAC”) and resolved in accordance with the Arbitration Rules of HKIAC in force at the relevant time (the “Rules”) as may be amended by this paragraph. The place of arbitration shall be Hong Kong. The official language of the arbitration shall be English and the arbitration tribunal shall consist of three arbitrators (each, an “Arbitrator”). The claimant(s), irrespective of number, shall nominate jointly one Arbitrator; the respondent(s), irrespective of number, shall nominate jointly one Arbitrator; and a third Arbitrator will be nominated jointly by the first two Arbitrators and shall serve as chairman of the arbitration tribunal. In the event the claimant(s) or respondent(s) or the first two Arbitrators shall fail to nominate or agree on the joint nomination of an Arbitrator or the third Arbitrator within the

 

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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 who is a 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 on lack of personal jurisdiction or inconvenient forum.

8.    Amendments; Waivers. Any provision of this Agreement may be amended or waived if, and only if, such amendment or waiver is in writing and signed, in the case of an amendment, by MBKP, Horizon, Crawford, Baring and Redstone, or in the case of a waiver, by the Party against whom the waiver is to be effective. Notwithstanding the foregoing, no failure or delay by a Party in exercising any right hereunder shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise of any other right hereunder.

9.    Specific Performance. Each Party acknowledges and agrees that monetary damages would not be an adequate remedy in the event that any covenant or agreement in this Agreement is not performed in accordance with its terms, and therefore agrees that in the event of any breach by a Party of any of its respective covenants or agreements set forth in this Agreement, the non-breaching Parties shall each be entitled to specific performance of the terms hereof, including an injunction or injunctions to prevent breaches of this Agreement by any Party, in addition to any other remedy at law or equity. Each Party waives (a) any defenses in any action for an injunction or other appropriate form of specific performance or equitable relief, including the defense that a remedy at law would be adequate and (b) any requirement under any Law to post a bond or other security as a prerequisite to obtaining an injunction or other appropriate form of specific performance or equitable relief. All rights, powers, and remedies provided under this Agreement or otherwise available in respect hereof at law or in equity shall be cumulative and not alternative, and the exercise or beginning of the exercise of any thereof by a party shall not preclude the simultaneous or later exercise of any other such right, power or remedy by a Party.

10.    Parties in Interest. Nothing in this Agreement, express or implied, is intended to confer on any person other than the Parties (and their respective successors, heirs and permitted assigns), any rights, remedies, obligations or liabilities, except that the Released Exiting Parties and the Released Continuing Parties shall be express third-party beneficiaries, and shall be entitled to enforce the provisions, of Section 3.

11.    Counterparts; Entire Agreement. This Agreement may be signed and delivered by facsimile or portable document format via electronic mail and in one or more counterparts, each of which shall be deemed an original but all of which shall be deemed to constitute a single instrument. This Agreement sets forth the entire agreement and understanding among the Parties with respect to the subject matter hereof and supersedes all prior agreements, discussions or documents relating thereto.

12.    Successors; Assignment. This Agreement shall inure to the benefit of, and be binding upon, the Parties and their respective successors and permitted assigns. This Agreement shall not be assigned without the mutual prior written consent of the Parties. Any purported assignment in violation of this Section 12 is void.

 

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13.    Severability. If any provision of this Termination Agreement is invalid, illegal or incapable of being enforced by any rule of Law or public policy, such invalidity shall not be deemed to affect any other provision hereof or the validity of the remainder of this Termination Agreement, and such invalid provision shall be deemed excluded herefrom to the minimum extent necessary to cure such violation.

14.    Further Assurances. Each Party shall do and perform, or cause to be done and performed, all such further reasonable acts and things, and shall execute and deliver all such other agreements, certificates, instruments and documents, as any other Party may reasonably request in order to carry out the intent and accomplish the purposes of this Agreement.

15.    Interpretation. When a reference is made in this Agreement to a Section such reference shall be to a Section of this Agreement unless otherwise indicated. The headings contained in this Agreement are for convenience of reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement. All words used in this Agreement will be construed to be of such gender or number as the circumstances require. The word “including” and words of similar import when used in this Agreement will mean “including, without limitation,” unless otherwise specified. The words “hereof,” “herein” and “hereunder” and words of similar import when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement. 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 term. 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, modified or supplemented, including (in the case of agreements or instruments) by waiver or consent and (in the case of statutes) by succession of comparable successor statutes and references to all attachments thereto and instruments incorporated therein. References to a person are also to its permitted successors and assigns. References to clauses without a cross-reference to a Section or subsection are references to clauses within the same Section or, if more specific, subsection. The word “extent” in the phrase “to the extent” means the degree to which a subject or other thing extends and such phrase shall not mean simply “if.” References to “day” shall mean a calendar day unless otherwise indicated as a “Business Day.”

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IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the date and year first written above.

 

 

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Exhibit 99.19

EXECUTION COPY

SHARE PURCHASE AGREEMENT

SHARE PURCHASE AGREEMENT dated as of March 14, 2019 (this “Agreement”) by and among GS Car Rental HK Limited, a company organized under the laws of Hong Kong (with tax residency in Luxembourg) (“GS Rental”), GS Car Rental HK Parallel Limited, a company organized under the laws of Hong Kong (with tax residency in Luxembourg) (“GS Rental Parallel”, and together with GS Rental, “Sellers”), and Teamsport Topco Limited, a Cayman Islands exempted company (the “Purchaser”), and, The Crawford Group, Inc., a Missouri corporation (“Crawford”), and Ctrip Investment Holding Ltd. (“Ctrip”). Capitalized terms used but not defined herein shall have the meanings ascribed to such terms in the Merger Agreement (as defined below).

WHEREAS, (a) GS Rental is, and as of the Closing Date, will continue to be, the direct record owner of 7,915,951 Class B Common Shares, par value US$0.001 per share (“Class B Shares”) (subject to adjustment for stock splits, recapitalizations and stock dividends occurring after the date hereof) (the “GS Rental Shares”), of eHi Car Services Limited, a Cayman Islands exempted company (the “Company”), and (b) GS Rental Parallel is, and as of the Closing Date will continue to be, the direct record owner of 1,165,714 Class B Shares (subject to adjustment for stock splits, recapitalizations and stock dividends occurring after the date hereof) (the “GS Rental Parallel Shares” and, together with the GS Rental Shares, the “Purchased Shares”);

WHEREAS, on April 25, 2018, Sellers delivered to each of Crawford and Ctrip a First Offer Notice (the “First Offer Notice”) stating that Sellers proposed to sell all of the Purchased Shares in a single cash sale and, pursuant to Section 3.7 of the Third Amended and Restated Investors’ Rights Agreement dated as of December 11, 2013 (the “Rights Agreement”), offering each of Crawford and Ctrip the opportunity to purchase the Purchased Shares (or a pro rata portion thereof) in accordance with the terms of such notice;

WHEREAS, by notice dated April 27, 2018, Ctrip notified Sellers that it was accepting the offer set forth in the First Offer Notice by delivering a written notice (the “Ctrip ROFO Acceptance”) in compliance with the terms of the First Offer Notice and the Rights Agreement

WHEREAS, by notice dated May 3, 2018, Crawford notified Sellers that it was accepting the offer set forth in the First Offer Notice by delivering a written notice (the “Crawford ROFO Acceptance,” and, together with the Ctrip ROFO Acceptance, the “ROFO Acceptances”) in compliance with the terms of the First Offer Notice and the Rights Agreement;

WHEREAS, thereafter certain disputes arose among Sellers, Crawford, the Company and Ctrip regarding, among other things, the rights and obligations of Crawford and Ctrip to purchase, and of Sellers to sell, the Class B Shares subject to the ROFO Acceptances, including the terms of a proposed sale of Class B Shares (the “ROFO Disputes”);

WHEREAS, Teamsport Parent Limited, a Cayman Islands exempted company and an indirect, wholly-owned subsidiary of the Purchaser (“Parent”), Teamsport Bidco Limited, a Cayman Islands exempted company and a wholly-owned subsidiary of Parent (“Merger Sub”), and the Company have entered into an Amended and Restated Agreement and Plan of Merger, dated as of February 18, 2019 (as it may be further amended, supplemented or otherwise modified

from time to time, the “Merger Agreement”), pursuant to which Merger Sub will be merged with and into the Company (the “Merger”), with the Company continuing as the surviving company and a wholly-owned subsidiary of Parent, upon the terms and subject to the conditions set forth in the Merger Agreement;

WHEREAS, on February 18, 2019, concurrently with the execution of the Merger Agreement, the Purchaser entered into a Global Settlement Agreement with Crawford, Ctrip and the other parties named therein, pursuant to which, among other things, Ctrip and its affiliates waived any and all right of first refusal, right of first offer or other claims they may have had with respect to the Purchased Shares; and

WHEREAS, to resolve the dispute regarding the ROFO Acceptances described above, the parties have agreed that the Purchaser will purchase from the Sellers, and the Sellers will sell to the Purchaser, all of the Sellers’ right, title and interest in and pertaining to the Purchased Shares in accordance with the terms of and subject to the conditions set forth in this Agreement.

NOW, THEREFORE, in consideration of the premises and mutual benefits representations, warranties, conditions, covenants and agreements contained herein, the parties hereto hereby agree as set forth below.

ARTICLE 1

PURCHASE AND SALE OF THE PURCHASED SHARES

Section 1.1    Purchase and Sale of Purchased Shares. Subject to the terms and conditions of this Agreement, at the Closing (as defined below), the Sellers shall sell, convey, assign and deliver to the Purchaser, and the Purchaser shall purchase from the Sellers, the Purchased Shares and any and all of the Sellers’ right, interest and title therein (including all dividends, distributions and other benefits incident to the ownership thereof), free and clear of all Claims (as defined below), for a purchase price per Purchased Share of US$7.25 (subject to adjustment for stock splits, recapitalizations and stock dividends occurring after the date hereof) (the “Per Share Price”), which shall result in (a) an aggregate purchase price of US$57,390,644.75 payable to GS Rental in respect of the GS Rental Shares (the “GS Rental Purchase Price”) and (b) an aggregate purchase price of US$8,451,426.50 payable to GS Rental Parallel in respect of the GS Rental Parallel Shares (the “GS Rental Parallel Purchase Price”); and a total aggregate purchase price of US$65,842,071.25 (the “Aggregate Purchase Price”).

Section 1.2    The Closing.

(a)    The closing (the “Closing”) of the sale of the Purchased Shares by the Sellers to the Purchaser shall occur immediately prior to the closing of the Merger (the “Merger Closing”) pursuant to Section 1.02 of the Merger Agreement (the date on which the Closing occurs, the “Closing Date”).

(b)    At the Closing:

(i)    the Sellers shall deliver, or cause to be delivered, to the Purchaser:

(1)    duly executed instruments of transfer of the Purchased Shares to the Purchaser or as the Purchaser may direct in writing, in form and substance reasonably acceptable to the Purchaser;

 

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(2)    certificates, if any, representing the Purchased Shares (or if such certificates have been lost, stolen or destroyed, an affidavit and indemnity in a form acceptable to the Company); and

(3)    a certificate duly executed by an authorized signatory of each Seller, dated as of the Closing Date, certifying that the conditions set forth in Section 5.2 have been satisfied (the instruments, certificates and documents contemplated by the foregoing sub-clauses (1) through (3), collectively, the “Purchased Share Documents”); and

(ii)    the Purchaser shall deliver, or cause to be delivered, to the Sellers:

(1)    (x) a wire transfer of immediately available funds into an account, to be designated by GS Rental no later than five (5) Business Days prior to the Closing, in an amount equal to the GS Rental Purchase Price and (y) a wire transfer of immediately available funds into an account, to be designated by GS Rental Parallel no later than five (5) Business Days prior to the Closing, in an amount equal to the GS Rental Parallel Purchase Price; and

(2)    a certificate duly executed by an authorized signatory of the Purchaser, dated as of the Closing Date, certifying that (x) the conditions set forth in Section 5.1 have been satisfied and (y) the Merger Closing will occur immediately following the Closing.

ARTICLE 2

SELLERS’ REPRESENTATIONS AND WARRANTIES

The Sellers, jointly and severally, represent and warrant to the Purchaser as of the date hereof and as of the Closing Date as set forth below.

Section 2.1    Title to Shares. Each Seller has valid title to the Purchased Shares to be sold by it pursuant to this Agreement, free and clear of all Claims. Each Seller is the record and beneficial owner of the Purchased Shares to be sold by it pursuant to this Agreement and, except for the rights of Crawford and Ctrip, if any, in relation to the ROFO Disputes, owns such Purchased Shares free from all taxes, liens, claims, encumbrances, charges, security interests, pledges, escrows, lock-up arrangements and other encumbrances of any kind, including, but not limited to, any proxy, power of attorney, voting trust agreement, interest, option, right of first offer, negotiation or refusal or transfer restriction in favor of any person and any adverse claim as to title, possession or use (except for restrictions or limitations on transfer imposed by applicable federal or state securities laws) (“Claims”). Subject to the releases granted pursuant to Sections 6.6 and 6.7, delivery to the Purchaser of the Purchased Shares will at the Closing (a) pass good and marketable title to the Purchased Shares to the Purchaser, free and clear of all Claims, and (b) convey, free and clear of all Claims, any and all rights and benefits incident to the ownership of the Purchased Shares.

 

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Section 2.2    Purchaser Information. The Purchaser, the other members of the Parent Group and its and their respective affiliates may receive or may have received, may have access to, and may be in possession of, material, non-public, confidential information concerning the Purchased Shares, the Company, and the Company’s and/or its affiliates’ financial condition, results of operations, businesses, properties, active or pending litigation, assets, liabilities, management, projections, appraisals, plans and prospects (“Purchaser Information”) that has not been disclosed to the Sellers. Each Seller understands, based on its experience, the disadvantage to which the Sellers are subject due to the disparity of information between the Sellers and the Purchaser. Notwithstanding such disparity, each Seller has deemed it appropriate to enter into this Agreement and to consummate the transactions contemplated hereby, and each Seller acknowledges that Purchaser Information may be indicative of a value of the Purchased Shares that is substantially different from the Aggregate Purchase Price to be paid by the Purchaser to the Sellers under this Agreement. Each Seller, on behalf of itself and its affiliates, principals, shareholders, members, partners, employees, agents and representatives, expressly and irrevocably waives and releases (a) the Purchaser, its affiliates and its and their respective principals, shareholders, members, partners, employees, agents and representatives, and (b) each other member of the Parent Group, its affiliates and its and their respective principals, shareholders, members, partners, employees, agents and representatives (the persons and entities contemplated by clauses (a) and (b), collectively, the “Purchaser Related Parties”) from any and all claims and liabilities arising from the Purchaser’s failure to disclose, or any Seller’s failure to obtain and review, the Purchaser Information, and each Seller agrees to make no claim against any Purchaser Related Party in respect of the transactions contemplated hereby relating to the Purchaser’s failure to disclose, or any Seller’s failure to obtain and review, such Purchaser Information. Nothing in this Section 2.2 affects the obligations of the Sellers under Section 6.3.

ARTICLE 3

PURCHASER WARRANTIES

Purchaser represents and warrants to the Sellers as of the Closing Date as set forth below.

Section 3.1    Purchase for Own Account. With the exception of the transactions contemplated by the Schedule 13E-3, (a) Purchaser is purchasing the Purchased Shares for Purchaser’s own account, for investment purposes only and not with a view to, or for sale in connection with, a distribution of the Purchased Shares within the meaning of the Securities Act (as defined below), and (b) Purchaser has no present intention of selling or otherwise disposing of all or any of the Purchased Shares. Purchaser was not formed for the sole purpose of acquiring the Purchased Shares.

Section 3.2    Accredited Investor. Purchaser is an “accredited investor” as defined in Rule 501(a) of Regulation D promulgated under the Securities Act.

Section 3.3    Access to Information. Purchaser has had access to all information regarding the Company and its present and prospective business, assets, liabilities and financial condition that Purchaser reasonably considers important in making the decision to acquire the Purchased Shares, and Purchaser has had ample opportunity to ask questions of the Company’s representatives concerning such matters.

 

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Section 3.4    No Registration of Securities. Purchaser understands and acknowledges that, in reliance upon the representations and warranties made by Purchaser herein, the offer and sale of the Purchased Shares are not being registered with the SEC under the Securities Act, but instead are being made under an exemption or exemptions from the registration requirements of the Securities Act or other applicable securities laws (including non-United States securities laws), which impose certain restrictions on Purchaser’s ability to transfer the Purchased Shares. Purchaser understands that Purchaser may not transfer the Purchased Shares unless such shares are registered under the Securities Act or qualified under other applicable securities laws (including non-United States securities laws) or unless, in the opinion of counsel to the Company, exemptions from such registration and qualification requirements are available.

Section 3.5    Due Diligence. Purchaser has made and conducted its own investigation, analysis and diligence with respect to the purchase of the Purchased Shares (without reliance on the Company) as it has deemed necessary in order to make its purchase decision, and it has made its own assessment and has satisfied itself concerning the relevant financial, tax, legal, and other considerations relevant to its purchase of the Purchased Shares. Purchaser further acknowledges that it has received all the information it considers necessary or appropriate for deciding whether to enter into this Agreement.

ARTICLE 4

MUTUAL REPRESENTATIONS AND WARRANTIES

Each party hereto represents and warrants to the other parties hereto as of the date hereof and as of the Closing Date as set forth below.

Section 4.1    Valid Existence. Such party is an entity duly organized or formed, validly existing and in good standing (to the extent applicable) under the laws of the jurisdiction of its organization or formation.

Section 4.2    Authority. Such party has all requisite power and authority to execute, deliver and perform all of its obligations under this Agreement. This Agreement has been duly and validly authorized, executed and delivered on behalf of such party, and this Agreement (assuming the due execution and delivery thereof by the other parties hereto) constitutes the legal, valid and binding obligation of such party enforceable against such party in accordance with its terms, except as such enforceability may be limited by general principles of equity or to applicable bankruptcy, insolvency, reorganization, moratorium, liquidation and other similar laws relating to, or affecting generally, the enforcement of applicable creditors’ rights and remedies.

Section 4.3    Noncontravention. The execution, delivery and performance by such party of this Agreement and the consummation by such party of the transactions contemplated hereby do not and will not (a) result in a violation of the organizational documents of such party, (b) whether with or without notice or the lapse of time or both, conflict with, or constitute a default under, or give to others any rights of termination, amendment, acceleration or cancellation of, or

 

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result in the creation of any Claim upon the Purchased Shares or any property or assets of such party pursuant to, any agreement, indenture or instrument to which such party is a party, or (c) result in a violation of any law, rule, regulation, order, judgment or decree (including federal and state securities laws) applicable to such party, except in the case of clause (b) and (c) above, for such conflicts, defaults, rights or violations which would not, individually or in the aggregate, reasonably be expected to have a material adverse effect on the ability of such party to perform its obligations hereunder.

Section 4.4    Consents. No consent, approval, permit, order, notification or authorization of, or any exemption from registration, declaration or filing with, any person (governmental or private) is required on the part of such party in connection with the execution, delivery and performance by such party of this Agreement or the consummation by such party of the transactions contemplated hereby, other than any filings as may be required by the Securities Act of 1933, as amended (the “Securities Act”), or the Exchange Act.

Section 4.5    Absence of Litigation. As of the date hereof, there is no action, suit, claim, proceeding, inquiry or investigation before or by any court, public board, government agency or self-regulatory organization or body pending or, to the knowledge of such party, other than the ROFO Disputes, threatened against or affecting such party that would reasonably be expected to have a material adverse effect on the ability of such party to perform its obligations hereunder.

Section 4.6    No Brokers. Such party has taken no action that would give rise to any claim by any person for brokerage commissions, finder’s fees or similar payments relating to this Agreement or the transactions contemplated thereby, except for any brokerage commissions, finder’s fees or similar payments that will be paid by such party.

ARTICLE 5

CONDITIONS PRECEDENT

Section 5.1    Conditions to the Obligations of the Sellers. The obligations of the Sellers to consummate the Closing under Section 1.2(a) are subject to the following conditions:

(a)    (i) other than the Purchaser’s representations and warranties set forth in Sections 4.1 and 4.2, the representations and warranties of the Purchaser contained in Article 3 (without giving effect to any qualification as to “material adverse effect”) shall be true and correct in all respects on and as of the date hereof and on and as of the Closing Date (other than representations and warranties that by their terms address matters only as of a specified time, which shall be true and correct only as of such time), except where the failure of such representations and warranties would not, individually or in the aggregate, reasonably be expected to have a material adverse effect on the ability of the Purchaser to perform its obligations hereunder, and (ii) the representations and warranties of the Purchaser set forth in Sections 4.1 and 4.2 shall be true and correct in all respects on and as of the date hereof and on and as of the Closing Date;

(b)    the Purchaser shall have performed all of its obligations contained in this Agreement (to be performed on or prior to the Closing Date) in all material respects; and

 

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(c)    the Merger Closing shall occur substantially contemporaneously with, and immediately following, the Closing.

Section 5.2    Conditions to the Obligations of the Purchaser. The obligations of the Purchaser to consummate the Closing under Section 1.2(a) are subject to the following conditions:

(a)    (i) other than the Sellers’ representations and warranties set forth in Sections 4.1 and 4.2, the representations and warranties of the Sellers contained in Article 3 (without giving effect to any qualification as to “material adverse effect”) shall be true and correct in all respects on and as of the date hereof and on and as of the Closing Date (other than representations and warranties that by their terms address matters only as of a specified time, which shall be true and correct only as of such time), except where the failure of such representations and warranties would not, individually or in the aggregate, reasonably be expected to have a material adverse effect on the ability of the Sellers to perform its obligations hereunder, and (ii) the representations and warranties of the Sellers set forth in Article 2 and Sections 4.1 and 4.2 shall be true and correct in all respects on and as of the date hereof and on and as of the Closing Date;

(b)    each Seller shall have performed all of its obligations contained in this Agreement (to be performed on or prior to the Closing Date) in all material respects; and

(c)    the Merger Closing shall occur substantially contemporaneously with, and immediately following, the Closing.

ARTICLE 6

COVENANTS

Section 6.1    Notification. Each party hereto shall notify the other parties hereto as soon as reasonably practicable (but in any event prior to the Closing Date) in the event it comes to such party’s attention that any of such party’s representations or warranties set out in this Agreement has ceased to be true and correct in any material respect or there has been any breach by such party of any of its covenants or agreements contained in this Agreement or any failure by such party to comply with any of its obligations contained in this Agreement. Promptly following the Shareholders’ Meeting, the Purchaser shall notify the Sellers in writing whether the conditions to the Merger Closing set forth in Sections 7.01(a) and 7.02(c) of the Merger Agreement have been satisfied, provided, however, that, for avoidance of doubt, the failure of any such condition to be satisfied shall not affect the obligations of any party under this Agreement.

Section 6.2    Restrictions on Transfer. After the date hereof and until the Closing, the Sellers shall continue to hold the Purchased Shares. Each Seller agrees that it shall not, and shall not permit its directors, officers, employees or representatives to, between the date hereof and the earlier of the Closing and the termination of this Agreement in accordance with its terms, solicit, initiate, participate in negotiations with respect to, encourage or assist with the submission of any proposal, negotiation or offer from any person, other than the Purchaser, its affiliates and its and their respective representatives, relating to the direct or indirect sale or any other form of disposition of the Purchased Shares. Each Seller hereby agrees that, from the date hereof until the earlier of the Closing and the termination of this Agreement in accordance with its terms, it shall

 

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not, directly or indirectly, (a) offer for sale, sell (constructively or otherwise), transfer, assign, tender in any tender or exchange offer, pledge, grant, encumber, hypothecate or similarly dispose of (by merger, operation of law or otherwise) (collectively, “Transfer”) or otherwise create, or permit the creation of, any Claim upon the Purchased Shares, in each case, either voluntarily or involuntarily, or enter into any agreement, arrangement or understanding with respect to the Transfer of any Purchased Shares or any interest therein, (b) deposit any Purchased Shares into a voting trust or enter into a voting agreement or arrangement or grant any proxy or power of attorney with respect thereto, other than as contemplated by Section 6.3, (c) convert or exchange, or take any action which would result in the conversion or exchange, of any Purchased Shares, (d) take any action that would make any representation or warranty of such Seller set forth in this Agreement untrue or incorrect or have the effect of preventing, disabling, or delaying such Seller from performing any of its obligations under this Agreement or that is intended, or would reasonably be expected, to impede, frustrate, interfere with, delay, postpone, adversely affect or prevent the consummation of the Transactions or the transactions contemplated by this Agreement or the performance by the Company of its obligations under the Merger Agreement or (e) agree (whether or not in writing) to take any of the actions referred to in the foregoing clauses (a), (b) (c) or (d). Any purported Transfer in violation of this Section 6.2 shall be null and void.

Section 6.3    Voting in Favor of the Proposed Transaction. From and after the date hereof until the earlier of (a) the Closing, and (b) the date on which this Agreement is terminated in accordance with its terms, each Seller hereby irrevocably and unconditionally agrees that that at the Shareholders’ Meeting or other annual or special meeting of the shareholders of the Company, however called, at which any of the matters described in paragraphs (a) through (f) hereof is to be considered (and any adjournment or postponement thereof), such Seller shall (i) appear at such meeting or otherwise cause its representative(s) to appear at such meeting or otherwise cause its Purchased Shares to be counted as present thereat for purposes of determining whether a quorum is present, and (ii) vote or cause to be voted (including by proxy, if applicable) all of such Purchased Shares:

(a)     for the authorization and approval of the Merger Agreement, the Plan of Merger and the Transactions, including the Merger;

(b)    against any Competing Transaction or any other transaction, proposal, agreement or action made in opposition to the authorization and approval of the Merger Agreement, the Plan of Merger and the Transactions, including the Merger, or in competition or inconsistent with the Transactions, including the Merger;

(c)    against any other action, agreement or transaction that is intended, that could reasonably be expected, or the effect of which could reasonably be expected, to materially impede, interfere with, delay, postpone, discourage or adversely affect the Transactions, including the Merger, or this Agreement or the performance by such Seller of its obligations under this Agreement;

(d)    against any action, proposal, transaction or agreement that would reasonably be expected to result in a breach in any respect of any covenant, representation or warranty or any other obligation or agreement of the Company contained in the Merger Agreement or otherwise reasonably requested by the Purchaser in order to consummate the Transactions, including the Merger;

 

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(e)    in favor of any adjournment or postponement of the Shareholders’ Meeting or any other annual or special meeting of the shareholders of the Company, however called, at which any of the matters described in paragraphs (a) through (f) of this Section 6.3 is to be considered (and any adjournment or postponement thereof) as may be reasonably requested by the Purchaser; and

(f)    in favor of any other matter necessary to effect the Transactions, including the Merger.

Section 6.4    Disclosure. The parties hereto agree to cooperate with one another and provide all information reasonably necessary to satisfy the applicable disclosure requirements under Rule 13e-3 under the Exchange Act (“Rule 13e-3”) and Section 13(d) of the Exchange Act. Each party hereto may disclose the terms of this Agreement as required by the rules of a U.S. or foreign securities exchange, or in any filings with the SEC as required by the Securities Act or the Exchange Act, including in connection with the submissions contemplated under Rule 13e-3 or any Schedule 13D of the Purchaser, any other member of the Parent Group or any of its or their respective affiliates relating to securities of the Company (or any amendment thereto). Each party hereto shall be responsible for compliance with all applicable disclosure, reporting and filing requirements of the SEC applicable to such party.

Section 6.5    Seller Release. Effective upon the Closing, each Seller, on behalf of itself and its affiliates, and its and their respective shareholders, members, managers, directors, officers, employees, attorneys, agents, administrators, trustees, heirs, successors and assigns, hereby releases the Purchaser, the other members of the Parent Group and its and their respective affiliates, shareholders, members, managers, directors, officers, employees, attorneys, agents, administrators, trustees, heirs, successors and assigns, from all claims, demands, damages, obligations and liabilities, of any kind or nature whatsoever, whether known or unknown, whether suspected or not, which have arisen or may arise with respect to the purchase and sale of the Purchased Shares, that it may have against any such person, including, without limitation, any claim under the Rights Agreement. Notwithstanding the foregoing, nothing in this Section 6.5 shall have the effect of releasing any claims, demands, damages, obligations or liabilities arising under this Agreement.

Section 6.6    Crawford Release. Effective upon the Closing, Crawford, on behalf of itself and its affiliates, and its and their respective shareholders, members, managers, directors, officers, employees, attorneys, agents, administrators, trustees, heirs, successors and assigns, hereby releases each Seller and their respective affiliates, and its and their respective shareholders, members, managers, directors, officers, employees, attorneys, agents, administrators, trustees, heirs, successors and assigns, from all claims, demands, damages, obligations and liabilities, of any kind or nature whatsoever, whether known or unknown, whether suspected or not, which have arisen or may arise with respect to the purchase and sale of the Purchased Shares, that it may have against any such person, including, without limitation, any claim under the Rights Agreement. Notwithstanding the foregoing, nothing in this Section 6.6 shall have the effect of releasing any claims, demands, damages, obligations or liabilities arising under this Agreement. For the

 

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avoidance of doubt and notwithstanding anything to the contrary, except to the extent set forth in Article 4, Section 6.1, Section 6.4, this Section 6.6 and Article 7, nothing in this Agreement shall create, imply or evidence any obligation or liability on the part of Crawford in respect of the Purchased Shares or otherwise.

Section 6.7    Ctrip Release. Effective upon the Closing, Ctrip, on behalf of itself and its affiliates, and its and their respective shareholders, members, managers, directors, officers, employees, attorneys, agents, administrators, trustees, heirs, successors and assigns, hereby releases each Seller and their respective affiliates, and its and their respective shareholders, members, managers, directors, officers, employees, attorneys, agents, administrators, trustees, heirs, successors and assigns, from all claims, demands, damages, obligations and liabilities, of any kind or nature whatsoever, whether known or unknown, whether suspected or not, which have arisen or may arise with respect to the purchase and sale of the Purchased Shares, that it may have against any such person, including, without limitation, any claim under the Rights Agreement. Notwithstanding the foregoing, nothing in this Section 6.7 shall have the effect of releasing any claims, demands, damages, obligations or liabilities arising under this Agreement. For the avoidance of doubt and notwithstanding anything to the contrary, except to the extent set forth in Article 4, Section 6.1, Section 6.4, this Section 6.7 and Article 7, nothing in this Agreement shall create, imply or evidence any obligation or liability on the part of Ctrip in respect of the Purchased Shares or otherwise.

Section 6.8     Per Share Price Adjustment. Notwithstanding the Per Share Price set forth in Section 1.1, if:

(a)    during the period from the date of this Agreement until the earlier to occur of the Merger Closing or the termination of the Merger Agreement pursuant to Article VIII thereof, the Per ADS Merger Consideration is increased to an amount greater than US$14.50 per ADS (equivalent to US$7.25 per Share); or

(b)    during the period from January 2, 2018 until the earlier to occur of the Merger Closing or the termination of the Merger Agreement pursuant to Article VIII thereof, any of the Purchaser, Crawford or Ctrip acquires any Shares for a purchase price paid by the Purchaser, Crawford or Ctrip, as applicable, greater than US$7.25 per Share, or ADSs for a purchase price paid by the Purchaser, Crawford or Ctrip, as applicable, greater than US$14.50 per ADS;

then the Per Share Price to be paid at the Closing shall be adjusted to the highest price per Share (or the equivalent price per Share obtained by dividing the relevant price per ADS by two) paid pursuant to sub-clauses (a) and (b), provided, however that: (i) for purposes of sub-clauses (a) and (b), the relevant prices shall be calculated net of all bank charges and all applicable stamp duty, stamp duty reserve tax or other documentary, transfer or registration duties or taxes, and (ii) for the avoidance of doubt, no adjustment shall be made as a result of any amounts paid to any holder of Shares or ADSs that exercises dissenters’ rights of appraisal pursuant to Section 238 of the CICL, whether pursuant to a final judgment or in settlement of such proceedings.

 

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Section 6.9     Additional Covenants. Each Seller hereby:

(a)    agrees, prior to the Closing, not to knowingly take any action that would make any representation or warranty of such Seller contained herein untrue or incorrect or have or could have the effect of preventing, impeding or interfering with or adversely affecting the performance by such Seller its obligations under this Agreement;

(b)    irrevocably waives, and agrees not to exercise or assert, any rights of appraisal or rights of dissent from the Merger that such Seller may have with respect to the Purchased Shares (including any rights under Section 238 of the CICL or the submission of any notice pursuant thereto) prior to the Closing; and

(c)    agrees further that, upon request of the Purchaser, such Seller shall execute and deliver any additional documents, consents or instruments and take such further actions as may reasonably be deemed by the Purchaser to be necessary or desirable to carry out the provisions of this Agreement.

ARTICLE 7

MISCELLANEOUS PROVISIONS

Section 7.1    Counterparts. This Agreement may be executed and delivered (including by email or facsimile transmission) in any number of counterparts, which together shall constitute one and the same agreement.

Section 7.2    Severability. In the event that any provision of this Agreement is found to be void or invalid, then such provision shall be deemed to be severable from the remaining provisions of this Agreement, and it shall not affect the validity of the remaining provisions, which provisions shall be given full effect as if the void or invalid provision had not been included herein so long as this Agreement as so modified continues to express, without material change, the original intentions of the parties as to the subject matter hereof and the prohibited nature, invalidity or unenforceability of the provision(s) in question does not substantially impair the respective expectations or reciprocal obligations of the parties or the practical realization of the benefits that would otherwise be conferred upon the parties. The parties will endeavor in good faith negotiations to replace the prohibited, invalid or unenforceable provision(s) with a valid provision(s), the effect of which comes as close as possible to that of the prohibited, invalid or unenforceable provision(s).

Section 7.3    Successors and Assigns; No Third Party Beneficiaries. No party hereto may assign, delegate or otherwise transfer any of its rights or obligations under this Agreement without the consent of the other parties, except that the Purchaser may transfer or assign its right to purchase the Purchased Shares at the Closing to one or more of its affiliates prior to the Closing or designate an affiliate of the Purchaser to purchase the Purchased Shares at the Closing; provided that no such assignment or transfer shall relieve the Purchaser of its obligations hereunder. Any purported assignment, delegation or transfer not permitted by this Section 7.3 is null and void. Subject to the foregoing, the terms and provisions of this Agreement shall inure to the benefit of and be binding upon the heirs, successors and permitted assigns of the parties. Nothing in this Agreement shall create or be deemed to create any third party beneficiary rights in any person or entity not a party to this Agreement.

 

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Section 7.4    Governing Law. This Agreement shall be governed by, and construed in accordance with, the laws of Hong Kong (without giving effect to the conflict of laws principles thereof that would result in the application of the laws of another jurisdiction).

Section 7.5    Dispute Resolution.

(a)    Subject to Section 7.4, Section 7.6, the last sentence of this Section 7.5(a) and Section 7.5(b), any disputes, actions and proceedings against any party or arising out of or in any way relating to this Agreement shall be submitted to the Hong Kong International Arbitration Centre (“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 7.5 (the “Rules”). 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 7.5, any party may, to the extent permitted under the Laws of the jurisdiction where application is made, seek an interim injunction from a court or other authority with competent jurisdiction and, notwithstanding that this Agreement is governed by the Laws of Hong Kong, a court or authority hearing an application for injunctive relief may apply the procedural Law of the jurisdiction where the court or other authority is located in determining whether to grant the interim injunction. For the avoidance of doubt, this Section 7.5(b) is only applicable to the seeking of interim injunctions and does not restrict the application of Section 7.5(a) in any way.

Section 7.6    Specific Performance. Each party hereto acknowledges and agrees that monetary damages would not be an adequate remedy in the event that any covenant or agreement in this Agreement is not performed in accordance with its terms, and therefore agrees that in the event of any breach by a party hereto of any of his or its respective covenants or agreements set forth in this Agreement, the non-breaching parties shall each be entitled to specific performance of the terms hereof, including an injunction or injunctions to prevent breaches of this Agreement by any party, in addition to any other remedy at law or equity. Each party waives (i) any defenses in any action for an injunction or other appropriate form of specific performance or equitable relief, including the defense that a remedy at law would be adequate and (ii) any requirement under any Law to post a bond or other security as a prerequisite to obtaining an injunction or other appropriate form of specific performance or equitable relief. All rights, powers, and remedies provided under this Agreement or otherwise available in respect hereof at law or in equity shall be cumulative and not alternative, and the exercise or beginning of the exercise of any thereof by a party shall not preclude the simultaneous or later exercise of any other such right, power or remedy by a party.

 

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Section 7.7    Amendments; Waivers. Any amendments or modifications hereto must be executed in writing by all parties hereto making specific reference to this Agreement. Any provision hereof may be waived only by a written instrument making specific reference to this Agreement executed by the party hereto against whom enforcement of such waiver is sought. The waiver by any party hereto of a breach any provision of this Agreement shall not operate or be construed as a further or continuing waiver of such breach or as a waiver of any other or subsequent breach. No failure on the part of any party hereto to exercise, and no delay in exercising, any right, power or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of such right, power or remedy by such party preclude any other or further exercise thereof or the exercise of any other right, power or remedy. All remedies hereunder are cumulative and are not exclusive of any other remedies provide by law.

Section 7.8    Further Assurances. Each party hereto shall do and perform, or cause to be done and performed, all such further acts and things, and shall execute and deliver all such other agreements, certificates, instruments and documents, as any other party hereto may reasonably request in order to carry out the intent and accomplish the purposes of this Agreement.

Section 7.9    Headings. The headings of this Agreement are for convenience of reference and shall not form part of, or affect the interpretation of, this Agreement.

Section 7.10    Entire Agreement. This Agreement supersedes all other prior oral or written agreements between the Purchaser and the Sellers, their affiliates and persons acting on their behalf with respect to the matters discussed herein, and this Agreement and the instruments referenced herein contain the entire understanding of the parties with respect to the matters covered herein and therein and, except as specifically set forth herein or therein, none of the Purchaser or any of the Sellers makes any representation, warranty, covenant or undertaking with respect to such matters.

Section 7.11    Notices. Any notices, consents, waivers or other communications required or permitted to be given under the terms of this Agreement must be in writing and will be deemed to have been delivered: (a) upon receipt, when delivered personally; (b) upon receipt, when sent by electronic mail; or (c) one Business Day after deposit with an international overnight courier service, in each case properly addressed to the party to receive the same. The addresses and e-mail addresses for such communications shall be as set forth on such party’s signature page attached hereto, or to such other address and/or e-mail address and/or to the attention of such other party as the recipient party has specified by written notice given to each other party two (2) business days prior to the effectiveness of such change. Written confirmation of receipt (i) given by the recipient of such notice, consent, waiver or other communication, (ii) mechanically or electronically generated by the sender’s e-mail containing the time and date of such transmission or (iii) provided by an international overnight courier service shall be rebuttable evidence of personal service, receipt by e-mail or receipt from an international overnight courier service in accordance with clause (b) or (c) above, respectively.

 

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Section 7.12    Survival. Unless this Agreement is terminated by mutual consent of the Sellers and the Purchaser, the representations and warranties of the Sellers and the Purchaser contained in Articles 2 and 3 shall survive the Closing Date and the delivery, in whole or in part, of the Purchased Shares.

Section 7.13    Termination. This Agreement may be terminated at any time prior to the Closing:

(a)    by the mutual written consent of the Purchaser and the Sellers;

(b)    by the Purchaser, in the event of a material breach of any provision of this Agreement by any Seller (if such breach has not been cured within ten (10) days following receipt by such Seller of written notice of such breach); provided that the Purchaser shall not have the right to terminate this Agreement pursuant to this Section 7.13(b) if the Purchaser is then in material breach or violation of its representations, warranties or covenants contained in this Agreement;

(c)    by the Sellers, in the event of a material breach of any provision of this Agreement by the Purchaser (if such breach has not been cured within ten (10) days following receipt by the Purchaser of written notice of such breach); provided that the Sellers shall not have the right to terminate this Agreement pursuant to this Section 7.13(b) if any Seller is then in material breach or violation of its representations, warranties or covenants contained in this Agreement;

(d)    by the Sellers, in the event that the Merger Closing has not occurred on or before May 31, 2019 ; or

(e)    by the Purchaser, on the one hand, or the Sellers, on the other hand, in the event that the Merger Agreement is validly terminated in accordance with its terms.

Section 7.14    Effect of Termination. Upon the termination of this Agreement pursuant to Section 7.13, all further obligations of the parties hereto under this Agreement (other than this Article 6, which shall survive the termination of this Agreement) shall terminate without liability of any party to the other parties hereto, except that no such termination shall relieve any party hereto from liability for any fraud or willful and intentional breach of this Agreement.

Section 7.15    No Fiduciary Duty. The Parties hereto acknowledge and agree that nothing in this Agreement shall create a fiduciary duty of Goldman, Sachs & Co. LLC or any of its affiliates to Purchaser or the Company.

Section 7.16    Investment Banking Services. Notwithstanding anything to the contrary herein or any actions or omissions by representatives of Goldman, Sachs & Co. LLC or any of its affiliates in whatever capacity, it is understood that neither Goldman, Sachs & Co. LLC nor any of its affiliates is acting as a financial advisor, agent or underwriter to the Company, Purchaser or any of their affiliates or otherwise on behalf of the Company, Purchaser or any of their affiliates unless retained to provide such services pursuant to a separate written agreement.

 

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Section 7.17    No Promotion. Purchaser agrees that it will not, without the prior written consent of Goldman or the applicable one of its affiliates (each a “GS Affiliate”), in each instance, (a) use in advertising, publicity, or otherwise the name of Goldman, Sachs & Co. LLC, or any GS Affiliate, or any partner or employee of a GS Affiliate, nor any trade name, trademark, trade device, service mark, symbol or any abbreviation, contraction or simulation thereof owned by Goldman, Sachs & Co. LLC or its affiliates, or (b) represent, directly or indirectly, that any product or any service provided by Purchaser has been approved or endorsed by Goldman, Sachs & Co. LLC or a GS Affiliate. Goldman agrees that it will not, without the prior written consent of Purchaser or the applicable one of its affiliates (each a “Purchaser Affiliate”), in each instance, (a) use in advertising, publicity, or otherwise the name of Purchaser, or any Purchaser Affiliate, or any director, officer or employee of a Purchaser Affiliate, nor any trade name, trademark, trade device, service mark, symbol or any abbreviation, contraction or simulation thereof owned by Purchaser or its affiliates, or (b) represent, directly or indirectly, that any product or any service provided by Purchaser or Purchaser Affiliate has been approved or endorsed by Purchaser or a Purchaser Affiliate. Notwithstanding any provision of this Section 7.17 to the contrary, this Section 7.17 shall not apply to any disclosure which a party in good faith determines is required under applicable Law, including (without limitation) a statement of beneficial ownership on Schedule 13D or transaction statement on Schedule 13E-3, or any amendment thereof, under the Exchange Act.

Section 7.18    Expenses. Each party hereto shall bear its own expenses incurred in connection with the negotiation and execution of this Agreement and each other document and instrument contemplated by this Agreement and the consummation of the transactions contemplated hereby and thereby.

Section 7.19    Interpretation. Unless the context of this Agreement otherwise requires: (a) words of any gender include each other gender; (b) words using the singular or plural number also include the plural or singular number, respectively; (c) the terms “hereof,” “herein,” “hereby,” “hereto” and derivative or similar words refer to this entire Agreement; (d) the terms “Article” or “Section” refer to the specified Article or Section of this Agreement; (e) the word “including” shall mean “including, without limitation”; and (f) the word “or” shall be disjunctive but not exclusive. For purposes of this Agreement, the term “Business Day” shall mean any day on which banks are not required or authorized to close in (A) the Hong Kong Special Administrative Region of the People’s Republic of China, (B) the Cayman Islands or (C) New York, New York, United States of America.

[The remainder of the page is intentionally left blank]

 

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IN WITNESS WHEREOF, the parties hereto have executed this Share Purchase Agreement as of the date first written above.

 

 

 

 

 

[Signature Page to Share Purchase Agreement]

IN WITNESS WHEREOF, the parties hereto have executed this Share Purchase Agreement as of the date first written above.

 

 

[Signature Page to Share Purchase Agreement]

IN WITNESS WHEREOF, the parties hereto have executed this Share Purchase Agreement as of the date first written above.

 

Contact Information for Notices:

The Crawford Group, Inc.

600 Corporate Park Drive

St. Louis, MO 63105

U.S.A.

Attention: Pamela M. Nicholson, Chief Executive Officer

Facsimile: +1 314 512 4070

E-mail: Pamela.M.Nicholson@ehi.com

With a copy (which shall not constitute notice) to:

The Crawford Group, Inc.

c/o Enterprise Holdings, Inc.

600 Corporate Park Drive

St. Louis, MO 63105

U.S.A.

Attention: Michael W. Andrew, Senior Vice President and General Counsel

Facsimile: +1 314 512 5823

E-mail: Mike.Andrew@ehi.com

[Signature Page to Share Purchase Agreement]

IN WITNESS WHEREOF, the parties hereto have executed this Share Purchase Agreement as of the date first written above.

 

Contact Information for Notices:

Ctrip Investment Holding Ltd.

c/o 968 Jin Zhong Road, Shanghai 200335

People’s Republic of China

Phone: +86 21 3406 4880

Attention: Jay Jie Shen

Email: jie_shen@ctrip.com

with a copy to (which shall not constitute notice):

Skadden, Arps, Slate, Meagher & Flom LLP

46/F, Jing An Kerry Centre, Tower II

1539 Nanjing West Road, Shanghai 200040

People’s Republic of China

Attention: Haiping Li, Esq.

E-mail: Haiping.Li@skadden.com

[Signature Page to Share Purchase Agreement]