SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

SCHEDULE 13D

UNDER THE SECURITIES EXCHANGE ACT OF 1934*

(Amendment No. 3)

 

 

eHi Car Services Limited

(Name of Issuer)

Class A Common Shares, par value $0.001 per share**

American Depositary Shares, each representing two Class A Common Shares

(Title of Class of Securities)

26853A100***

(CUSIP Number)

BPEA Teamsport Limited

P.O. Box 31119

Grand Pavilion

Hibiscus Way

802 West Bay Road

Grand Cayman, KY1-1205

Cayman Islands

(Facsimile) +65 6593 3711

with copies to:

Patrick Cordes

Baring Private Equity Asia Limited

3801 Two International Finance Centre

8 Finance Street

Central, Hong Kong

(Facsimile) +852 2843 9372

Tim Gardner

William Welty

Weil, Gotshal & Manges LLP

29/F, Alexandra House

18 Chater Road, Central

Hong Kong

+852 3476 9000

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

February 18, 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 that is the subject of this Schedule 13D, and is filing this schedule because of §§ 240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box:  ☐

 

 

NOTE: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See Rule 240.13d-7 for other parties to whom copies are to be sent.

 

 

 

*	The remainder of this cover page shall be filled out for a reporting person’s initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page.

**	Not for trading, but only in connection with the listing on The New York Stock Exchange of American Depositary Shares, each representing two Class A Common Shares.

***	CUSIP number of the American Depositary Shares, each representing two Class A Common Shares.

The information required on the remainder of this cover page shall not be deemed to be “filed” for the purpose of Section 18 of the Securities Exchange Act of 1934 (“Act”) or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes).

 

 

 

SCHEDULE 13D

CUSIP No. 26853A100

 

1		NAME OF REPORTING PERSON   The Baring Asia Private Equity Fund VI, L.P.1
2		CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a)  ☐        (b)  ☒
3		SEC USE ONLY
4		SOURCE OF FUNDS   WC
5		CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDING IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)  ☐
6		CITIZENSHIP OR PLACE OF ORGANIZATION   Cayman Islands

NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH				7		SOLE VOTING POWER   0
				8		SHARED VOTING POWER   10,528,160*
				9		SOLE DISPOSITIVE POWER   0
				10		SHARED DISPOSITIVE POWER   10,528,160*

11		AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON   10,528,160*
12		CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (SEE INSTRUCTIONS)  ☐
13		PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)   14.2%**
14		TYPE OF REPORTING PERSON (SEE INSTRUCTIONS)   PN

 

*	Consists of 5,264,080 ADSs (as defined in Item 1) representing 10,528,160 Class A Shares (as defined in Item 1) that are owned by BPEA Teamsport Limited.

**	Percentage calculated based on 74,279,018 Class A Shares (as defined in Item 1) outstanding as of October 31, 2018, as set forth in the 2018 Proxy Statement (as defined in Item 5).

SCHEDULE 13D

CUSIP No. 26853A100

 

1		NAME OF REPORTING PERSON   The Baring Asia Private Equity Fund VI, L.P.2
2		CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a)  ☐        (b)  ☒
3		SEC USE ONLY
4		SOURCE OF FUNDS   WC
5		CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDING IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)  ☐
6		CITIZENSHIP OR PLACE OF ORGANIZATION   Cayman Islands

NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH				7		SOLE VOTING POWER   0
				8		SHARED VOTING POWER   10,528,160*
				9		SOLE DISPOSITIVE POWER   0
				10		SHARED DISPOSITIVE POWER   10,528,160*

11		AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON   10,528,160*
12		CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (SEE INSTRUCTIONS)  ☐
13		PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)   14.2%**
14		TYPE OF REPORTING PERSON (SEE INSTRUCTIONS)   PN

 

*	Consists of 5,264,080 ADSs (as defined in Item 1) representing 10,528,160 Class A Shares (as defined in Item 1) that are owned by BPEA Teamsport Limited.

**	Percentage calculated based on 74,279,018 Class A Shares (as defined in Item 1) outstanding as of October 31, 2018, as set forth in the 2018 Proxy Statement (as defined in Item 5).

 

4

SCHEDULE 13D

CUSIP No. 26853A100

 

1		NAME OF REPORTING PERSON   The Baring Asia Private Equity Fund VI Co-Investment L.P.
2		CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a)  ☐        (b)  ☒
3		SEC USE ONLY
4		SOURCE OF FUNDS   WC
5		CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDING IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)  ☐
6		CITIZENSHIP OR PLACE OF ORGANIZATION   Cayman Islands

NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH				7		SOLE VOTING POWER   0
				8		SHARED VOTING POWER   10,528,160*
				9		SOLE DISPOSITIVE POWER   0
				10		SHARED DISPOSITIVE POWER   10,528,160*

11		AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON   10,528,160*
12		CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (SEE INSTRUCTIONS)  ☐
13		PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)   14.2%**
14		TYPE OF REPORTING PERSON (SEE INSTRUCTIONS)   PN

 

*	Consists of 5,264,080 ADSs (as defined in Item 1) representing 10,528,160 Class A Shares (as defined in Item 1) that are owned by BPEA Teamsport Limited.

**	Percentage calculated based on 74,279,018 Class A Shares (as defined in Item 1) outstanding as of October 31, 2018, as set forth in the 2018 Proxy Statement (as defined in Item 5).

 

5

SCHEDULE 13D

CUSIP No. 26853A100

 

1		NAME OF REPORTING PERSON   Baring Private Equity Asia GP VI, L.P.
2		CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a)  ☐        (b)  ☒
3		SEC USE ONLY
4		SOURCE OF FUNDS   OO
5		CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDING IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)  ☐
6		CITIZENSHIP OR PLACE OF ORGANIZATION   Cayman Islands

NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH				7		SOLE VOTING POWER   0
				8		SHARED VOTING POWER   10,528,160*
				9		SOLE DISPOSITIVE POWER   0
				10		SHARED DISPOSITIVE POWER   10,528,160*

11		AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON   10,528,160*
12		CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (SEE INSTRUCTIONS)  ☐
13		PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)   14.2%**
14		TYPE OF REPORTING PERSON (SEE INSTRUCTIONS)   PN

 

*	Consists of 5,264,080 ADSs (as defined in Item 1) representing 10,528,160 Class A Shares (as defined in Item 1) that are owned by BPEA Teamsport Limited.

**	Percentage calculated based on 74,279,018 Class A Shares (as defined in Item 1) outstanding as of October 31, 2018, as set forth in the 2018 Proxy Statement (as defined in Item 5).

 

6

SCHEDULE 13D

CUSIP No. 26853A100

 

1		NAME OF REPORTING PERSON   Baring Private Equity Asia GP VI Limited
2		CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a)  ☐        (b)  ☒
3		SEC USE ONLY
4		SOURCE OF FUNDS   OO
5		CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDING IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)  ☐
6		CITIZENSHIP OR PLACE OF ORGANIZATION   Cayman Islands

NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH				7		SOLE VOTING POWER   0
				8		SHARED VOTING POWER   10,528,160*
				9		SOLE DISPOSITIVE POWER   0
				10		SHARED DISPOSITIVE POWER   10,528,160*

11		AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON   10,528,160*
12		CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (SEE INSTRUCTIONS)  ☐
13		PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)   14.2%**
14		TYPE OF REPORTING PERSON (SEE INSTRUCTIONS)   CO

 

*	Consists of 5,264,080 ADSs (as defined in Item 1) representing 10,528,160 Class A Shares (as defined in Item 1) that are owned by BPEA Teamsport Limited.

**	Percentage calculated based on 74,279,018 Class A Shares (as defined in Item 1) outstanding as of October 31, 2018, as set forth in the 2018 Proxy Statement (as defined in Item 5).

 

7

SCHEDULE 13D

CUSIP No. 26853A100

 

1		NAME OF REPORTING PERSON   BPEA Teamsport Limited
2		CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a)  ☐        (b)  ☒
3		SEC USE ONLY
4		SOURCE OF FUNDS   OO
5		CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDING IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)  ☐
6		CITIZENSHIP OR PLACE OF ORGANIZATION   Cayman Islands

NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH				7		SOLE VOTING POWER   0
				8		SHARED VOTING POWER   10,528,160*
				9		SOLE DISPOSITIVE POWER   0
				10		SHARED DISPOSITIVE POWER   10,528,160*

11		AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON   10,528,160*
12		CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (SEE INSTRUCTIONS)  ☐
13		PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)   14.2%**
14		TYPE OF REPORTING PERSON (SEE INSTRUCTIONS)   CO

 

*	Consists of 5,264,080 ADSs (as defined in Item 1) representing 10,528,160 Class A Shares (as defined in Item 1) that are owned by BPEA Teamsport Limited.

**	Percentage calculated based on 74,279,018 Class A Shares (as defined in Item 1) outstanding as of October 31, 2018, as set forth in the 2018 Proxy Statement (as defined in Item 5).

 

8

SCHEDULE 13D

CUSIP No. 26853A100

 

1		NAME OF REPORTING PERSON   BPEA Teamsport Holdings Limited
2		CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a)  ☐        (b)  ☒
3		SEC USE ONLY
4		SOURCE OF FUNDS   OO
5		CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDING IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)  ☐
6		CITIZENSHIP OR PLACE OF ORGANIZATION   Cayman Islands

NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH				7		SOLE VOTING POWER   0
				8		SHARED VOTING POWER   10,528,160*
				9		SOLE DISPOSITIVE POWER   0
				10		SHARED DISPOSITIVE POWER   10,528,160*

11		AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON   10,528,160*
12		CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (SEE INSTRUCTIONS)  ☐
13		PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)   14.2%**
14		TYPE OF REPORTING PERSON (SEE INSTRUCTIONS)   CO

 

*	Consists of 5,264,080 ADSs (as defined in Item 1) representing 10,528,160 Class A Shares (as defined in Item 1) that are owned by BPEA Teamsport Limited.

**	Percentage calculated based on 74,279,018 Class A Shares (as defined in Item 1) outstanding as of October 31, 2018, as set forth in the 2018 Proxy Statement (as defined in Item 5).

 

9

SCHEDULE 13D

CUSIP No. 26853A100

 

1		NAME OF REPORTING PERSON   Jean Eric Salata
2		CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a)  ☐        (b)  ☒
3		SEC USE ONLY
4		SOURCE OF FUNDS   OO
5		CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDING IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)  ☐
6		CITIZENSHIP OR PLACE OF ORGANIZATION   Chile

NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH				7		SOLE VOTING POWER   0
				8		SHARED VOTING POWER   10,528,160*
				9		SOLE DISPOSITIVE POWER   0
				10		SHARED DISPOSITIVE POWER   10,528,160*

11		AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON   10,528,160*
12		CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (SEE INSTRUCTIONS)  ☐
13		PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)   14.2%**
14		TYPE OF REPORTING PERSON (SEE INSTRUCTIONS)   IN

 

*	Consists of 5,264,080 ADSs (as defined in Item 1) representing 10,528,160 Class A Shares (as defined in Item 1) that are owned by BPEA Teamsport Limited.

**	Percentage calculated based on 74,279,018 Class A Shares (as defined in Item 1) outstanding as of October 31, 2018, as set forth in the 2018 Proxy Statement (as defined in Item 5).

 

10

This Amendment No. 3 (this “Amendment”) is filed to amend and supplement the Statement on Schedule 13D filed by the Reporting Persons named therein with the Securities and Exchange Commission (the “SEC”) on March 5, 2018 (the “Original Schedule”), which Original Schedule was subsequently amended (the Original Schedule as amended by Amendment No. 1 and Amendment No. 2, the “Schedule 13D”), with respect to eHi Car Services Limited (the “Issuer”). Except as specifically amended and supplemented by this Amendment, the Schedule 13D remains in full force and effect. All capitalized terms contained herein but not otherwise defined shall have the meanings ascribed to such terms in the Schedule 13D.

 

Item 3.

Source and Amount of Funds or Other Consideration

Item 3 of the Schedule 13D is hereby supplemented by adding the following:

Item 4 of this Amendment is incorporated herein by reference.

 

Item 4.

Purpose of Transaction

Item 4 of the Schedule 13D is hereby supplemented by adding the following:

On February 18, 2019, the Issuer entered into an Amended and Restated Agreement and Plan of Merger (the “Amended and Restated Merger Agreement”), with Parent and Merger Sub, which amended and restated the Merger Agreement in its entirety.

In connection with the execution of the Amended and Restated Merger Agreement, Baring LP1, Baring LP2, Baring Co-Invest, Baring SPV and the other parties thereto entered into a termination agreement dated as of February 18, 2019 (the “Termination Agreement”), pursuant to which the participation of Baring LP1, Baring LP2, Baring Co-Invest and Baring SPV in the transactions contemplated by the Equity Commitment Letters, the Limited Guarantees, the Interim Investors Agreement and the Contribution and Support Agreement was terminated.

As a result, the Reporting Persons are no longer party to any agreement, arrangement or understanding with respect to securities of the Issuer that could deem them to be in a “group” with the Rollover Shareholders for purposes of Section 13(d) of the Act.

Concurrently with the execution of the Amended and Restated Merger Agreement, Baring SPV entered into a support agreement dated as of February 18, 2019 (the “Support Agreement”) with Holdco, Midco and Parent, pursuant to which Baring SPV agreed, among other things, that it will vote all of the Common Shares (including Class A Shares represented by ADSs) owned directly or indirectly by it in favor of the authorization and approval of the Amended and Restated Merger Agreement and the transactions contemplated thereby.

The information disclosed in this Item 4 does not purport to be complete and is qualified in its entirety by reference to the Termination Agreement and the Support Agreement, copies of which are filed as Exhibit 7.23 and Exhibit 7.24, respectively, and which are incorporated herein by reference in their entirety.

 

Item 5.

Interest in Securities of the Issuer

Item 5 of the Schedule 13D is hereby amended and restated as follows:

(a)    The responses of the Reporting Persons to Rows (7) through (13) of the cover pages of this Amendment are incorporated herein by reference.

As of the date hereof, Baring SPV owns 5,264,080 ADSs, representing 10,528,160 Class A Shares, which represent approximately 14.2% of the outstanding Class A Shares (based on 74,279,018 Class A Shares outstanding as of October 31, 2018, as set forth in the Issuer’s proxy statement, filed under cover of Form 6-K on December 6, 2018 (the “2018 Proxy Statement”)). Baring SPV Holdings, as the sole shareholder of Baring SPV, may be deemed to beneficially own the ADSs representing Class A Shares that are owned by Baring SPV. Baring LP1, Baring LP2 and Baring Co-Invest LP, as the joint shareholders of Baring SPV Holdings, may be deemed to beneficially own the ADSs representing Class A Shares that are owned by Baring

 

11

SPV. Baring GP, as the general partner of Baring LP1, Baring LP2 and Baring Co-Invest LP, and Baring Limited, as the general partner of Baring GP, each may be deemed to beneficially own the ADSs representing Class A Shares that are owned by Baring SPV. Mr. Salata, as the sole shareholder of Baring Limited, may be deemed to beneficially own the ADSs representing Class A Shares that are owned by Baring SPV.

(b)    The responses of the Reporting Persons to Rows (7) through (13) of the cover pages of this Amendment and Item 5(a) of this Amendment are incorporated herein by reference.

The Reporting Persons may be deemed to share voting and dispositive power with respect to the 5,264,080 ADSs, representing 10,528,160 Class A Shares, that are owned by Baring SPV.

(c)    To the best knowledge of each of the Reporting Persons, none of the Reporting Persons has effected any transactions relating to the Common Shares during the past 60 days.

(d)    Not applicable.

(e)    Not applicable.

 

Item 6.

Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer

Item 6 of the Schedule 13D is hereby supplemented by adding the following:

Items 3, 4 and 7 of this Amendment are incorporated herein by reference.

 

Item 7.

Material to be Filed as Exhibits

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

 

Exhibit 7.23		Termination Agreement, dated February 18, 2019.
Exhibit 7.24		Support Agreement by and among Parent, Holdco, Midco and Baring SPV, dated February 18, 2019.

 

12

SIGNATURES

After reasonable inquiry and to the best of each of the undersigned’s knowledge and belief, each of the undersigned, severally and not jointly, certifies that the information set forth in this statement is true, complete and correct.

Dated: February 19, 2019    

 

 

13

 

14

Exhibit 7.23

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.

 

2

(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”).

 

3

(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

 

4

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

 

5

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.

 

6

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.”

[Signatures to Follow on the Next Page]

 

7

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

 

[Signature Page to Termination Agreement]

[Signature Page to Termination Agreement]

[Signature Page to Termination Agreement]

[Signature Page to Termination Agreement]

[Signature Page to Termination Agreement]

[Signature Page to Termination Agreement]

[Signature Page to Termination Agreement]

[Signature Page to Termination Agreement]

[Signature Page to Termination Agreement]

[Signature Page to Termination Agreement]

[Signature Page to Termination Agreement]

Exhibit 7.24

EXECUTION VERSION

SUPPORT AGREEMENT

This 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) BPEA Teamsport Limited, a Cayman Islands exempted company (“BPEA Teamsport”). 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 eHi Car Services Limited, a Cayman Islands exempted company (the “Company”), have, concurrently with the execution of this Agreement, entered 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, including that the Per Share Merger Consideration will be US$6.125 and the Per ADS Merger Consideration will be US$12.25 (less US$0.05 per ADS cancellation fees), in each case in cash without interest; and

WHEREAS, as of the date hereof, BPEA Teamsport is the beneficial owner (as defined under Rule 13d-3 of the Exchange Act) of 10,528,160 Class A Common Shares, par value US$0.001 per share, represented by ADSs (the “Shares”, and, together with any other ordinary shares of the Company acquired (whether beneficially or of record) by BPEA Teamsport after the date hereof and prior to the earlier of the Effective Time and the termination of BPEA Teamsport’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, the “Securities”).

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) August 18, 2019 and (y) the termination of the Merger Agreement pursuant to and in compliance with the terms therein (such earlier time, the “Expiration Time”), BPEA Teamsport 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) – (b) hereof is to be considered (and any adjournment or postponement thereof), BPEA Teamsport shall (i) cause the Securities to be counted as present at such meeting for purposes of determining whether a quorum is present, and (ii) vote or cause to be voted (including by proxy, if applicable) all of the Securities:

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

(b)    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.

Section 1.2    Restrictions on Transfers. BPEA Teamsport hereby agrees that, from the date hereof until the Expiration Time, it 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, operation of law or otherwise) (collectively, “Transfer”), either voluntarily or involuntarily, or enter into any agreement, arrangement or understanding with respect to the Transfer of any Securities or any interest therein or (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, other than as contemplated by Section 1.1. Any purported Transfer in violation of this Section 1.2 shall be null and void.

ARTICLE II

REPRESENTATIONS, WARRANTIES AND COVENANTS

OF BPEA TEAMSPORT

Section 2.1    Representations and Warranties. BPEA Teamsport represents and warrants to Parent, Midco and Holdco as follows:

(a)    it has the full legal right, power, capacity and authority to execute and deliver this Agreement and to perform its obligations hereunder;

(b)    this Agreement has been duly executed and delivered by BPEA Teamsport and the execution, delivery and performance of this Agreement by it have been duly authorized by all necessary action on the part of BPEA Teamsport and no other actions or proceedings on the part of BPEA Teamsport are necessary to authorize or perform this Agreement;

(c)    assuming due authorization, execution and delivery by Parent, Midco and Holdco, this Agreement constitutes a legal, valid and binding agreement of BPEA Teamsport, enforceable against it 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) BPEA Teamsport (A) is the beneficial owner of, and has good and valid title to, the Securities, free and clear of Liens other than as created by this Agreement, and (B) has sole or shared (together with Affiliates controlled by BPEA Teamsport) voting power,

 

2

power of disposition, and power to demand dissenter’s rights, in each case with respect to all of the 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) the Securities are not subject to any voting trust agreement or other Contract to which BPEA Teamsport is a party restricting or otherwise relating to the voting or Transfer of the Securities other than this Agreement, and (iii) BPEA Teamsport has not Transferred any interest in any of the 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 BPEA Teamsport for the execution, delivery and performance of this Agreement by it, and (ii) neither the execution, delivery or performance of this Agreement by it, nor compliance by it with any of the provisions hereof shall (A) conflict with or violate any provision of the organizational documents of BPEA Teamsport, (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 its property or assets pursuant to any Contract to which it is a party or by which it or any of its property or assets is bound or affected, or (C) violate any order, writ, injunction, decree, statute, rule or regulation applicable to it or any of its properties or assets; and

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

Section 2.2    Covenants. BPEA Teamsport hereby:

(a)    agrees, prior to the Expiration Time, not to knowingly take any action that would make any of its representations or warranties contained herein untrue or incorrect or have or could have the effect of preventing, impeding or interfering with or adversely affecting the performance of 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 it may have with respect to the 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, its identity and beneficial ownership of the Shares, Securities or other equity securities of the Company and a factual description of its commitments, arrangements and understandings under this Agreement (the “BPEA Teamsport Related Disclosures”); provided that the Company and Parent shall (i) provide BPEA Teamsport a reasonable opportunity to review a draft of the BPEA Teamsport Related Disclosures and (ii) consider in good faith any comments from BPEA Teamsport regarding such BPEA Teamsport Related Disclosures prior to publishing or disclosing them; and

 

3

(d)    agrees and covenants that it shall promptly (and in any event within forty-eight (48) hours) notify Parent of any new securities of the Company with respect to which beneficial ownership (within the meaning of Rule 13d-3 of the Exchange Act) is acquired by BPEA Teamsport, 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.

ARTICLE III

REPRESENTATIONS AND WARRANTIES OF PARENT, MIDCO AND HOLDCO

Each of Parent, Midco and Holdco represents and warrants to BPEA Teamsport as follows:

(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. 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 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 or perform this Agreement. Assuming due authorization, execution and delivery by BPEA Teamsport, 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); and

(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, and (ii) neither the execution, delivery or performance of this Agreement by Parent and Holdco, 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, 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;

 

4

ARTICLE IV

MISCELLANEOUS

Section 4.1    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 4.1):

if to BPEA Teamsport:

c/o Vistra Alternative Investments Services Pte. Ltd.

1 Raffles Place

#13-01 One Raffles Place

Singapore 048616

Attention: BPEA Vistra Team

Facsimile: +65 6593 3711

Email: bpea.sg@vistra.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

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

 

5

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 4.2    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 4.3    Entire Agreement. This Agreement constitutes the entire agreement among the parties with respect to the subject matter hereof and supersedes all prior agreements and undertakings, both written and oral, among the parties, or any of them, with respect to the subject matter hereof.

Section 4.4    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 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 4.5    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 parties hereto, or in the case of a waiver, by the party against whom the waiver is to be effective. Notwithstanding the

 

6

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 4.6    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 4.7    Dispute Resolution.

(a)    Subject to Section 4.4, Section 4.6, the last sentence of this Section 4.7(a) and Section 4.7(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.

(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 4.7, 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 4.7(b) is only applicable to the seeking of interim injunctions and does not restrict the application of Section 4.7(a) in any way.

Section 4.8    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.

 

7

(b)    Notwithstanding anything that may be expressed or implied in this Agreement or any document or instrument delivered in connection herewith, and notwithstanding the fact that BPEA Teamsport may be a limited partnership or limited liability company, as applicable, Holdco covenants, acknowledges and agrees that no person other than BPEA Teamsport (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 the former, current or future equity holders, controlling persons, directors, officers, employees, agents, advisors, representatives, Affiliates, members, managers, or general or limited partners of BPEA Teamsport (each, a “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 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 4.9    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. 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 4.10    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.

Section 4.11    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 4.12    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 BPEA Teamsport may disclose the existence and content of this Agreement to its Non-Recourse Parties.

 

8

Section 4.13    Further Assurances. Each party hereto 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 hereto may reasonably request in order to carry out the intent and accomplish the purposes of this Agreement.

Section 4.14    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-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]

 

9

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 Support Agreement]

[Signature Page to Support Agreement]

[Signature Page to Support Agreement]

[Signature Page to Support Agreement]