UNITED STATES |
SECURITIES AND EXCHANGE COMMISSION |
Washington, D.C. 20549 |
|
SCHEDULE 13D |
|
Under the Securities Exchange Act of 1934 |
(Amendment No. 1)* |
|
Homeinns
Hotel Group |
(Name of Issuer) |
|
Ordinary
Shares, par value $0.005 per share |
(Title of Class of Securities) |
|
G6647N108
|
(CUSIP Number) |
BTG Hotels
(Group) Co., Ltd.
BTG Hotels
Group (HONGKONG) Holdings Co., Limited
51 Fuxingmen
Avenue
Xicheng District,
Beijing 100031
People’s
Republic of China
(+86-10) 6601-4466
Beijing
Tourism Group Co., Ltd.
Poly
Victory Investments Limited
c/o
No. 10 Yabao Road
Chaoyang
District
Beijing
100020
People’s
Republic of China
(+86-10)
8562-9988 |
Ctrip.com
International, Ltd.
C-Travel
International Limited
Ctrip.com
(Hong Kong) Limited
Ctrip
Travel Information Technology (Shanghai) Co., Ltd.
James
Jianzhang Liang
Chung
Lau
Wise
Kingdom Group Limited
c/o
968 Jin Zhong Road
Shanghai
200335
People’s
Republic of China
(+86-21)
3406-4880 |
Neil
Nanpeng Shen
Smart
Master International Limited
c/o
Suite 3613, 36/F
Two
Pacific Place
88
Queensway
Hong
Kong
(+852)
2501-8989
|
David
Jian Sun
Peace
Unity Investments Limited
Townbright
Holdings Limited
Jason
Xiangxin Zong
c/o
No. 124 Caobao Road
Xuhui
District, Shanghai 200235
People’s
Republic of China
(+86-21)
3337-3333 |
With copies to: |
|
Z. Julie Gao, Esq. |
Michael V. Gisser, Esq. |
Skadden, Arps, Slate, Meagher & Flom
LLP |
c/o 42/F, Edinburgh Tower, The Landmark |
15 Queen’s Road Central |
Hong Kong |
(+852) 3740-4700 |
(Name, Address and Telephone Number of Person
Authorized to |
Receive Notices and Communications) |
|
December
6, 2015 |
(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 §240.13d-7 for other parties to whom copies are to be
sent.
* This statement on Schedule 13D (the “Schedule 13D”)
represents Amendment No. 1 to the statement on Schedule 13D filed with the Securities and Exchange Commission (the “Commission”)
on June 22, 2015 (the “Original Filing”) by Beijing Tourism Group Co., Ltd. (“BTG”), Poly
Victory Investments Limited (“Poly Victory”), Neil Nanpeng Shen (“Mr. Shen”), Smart Master
International Limited (“Smart Master”), James Jianzhang Liang (“Mr. Liang”), David Jian Sun
(“Mr. Sun”) and Peace Unity Investments Limited (“Peace Unity”), with respect to the ordinary
shares, par value $0.005 per share (“Ordinary Shares”), of Homeinns Hotel Group, a Cayman Islands Company (the “Company”).
This Schedule 13D represents Amendment No. 4 to the statement on
Schedule 13D filed by Ctrip.com International, Ltd. (“Ctrip”), C-Travel International Limited (“C-Travel”)
and Ctrip.com (Hong Kong) Limited (“Ctrip (HK)”) on December 10, 2008 with respect to the Ordinary Shares of
the Company, as amended by Amendment No. 1 filed on December 30, 2008, Amendment No. 2 filed on May 21, 2009 and Amendment
No. 3 filed on June 22, 2015 (the “Ctrip Schedule 13D”).
Except as amended and supplemented hereby, each of the Original
Filing and Ctrip Schedule 13D remains in full force and effect.
This Schedule 13D represents an initial Schedule 13D filing by each
of BTG Hotels (Group) Co., Ltd. (“BTG Hotels”), BTG Hotels Group (HONGKONG) Holdings Co., Limited (“Holdco”),
Ctrip Travel Information Technology (Shanghai) Co., Ltd. (“Ctrip Shanghai”), Chung Lau (“Ms. Lau”),
Wise Kingdom Group Limited (“Wise Kingdom”), Townbright Holdings Limited (“Townbright”) and
Jason Xiangxin Zong (“Mr. Zong”) with respect to the Ordinary Shares of the Company.
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).
1 |
NAMES OF REPORTING PERSONS
BTG Hotels (Group) Co., Ltd. |
2 |
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) ¨
(b) ¨ |
3 |
SEC USE ONLY
|
4 |
SOURCE OF FUNDS (See Instructions)
WC, OO |
5 |
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(e) ¨ |
6 |
CITIZENSHIP OR PLACE OF ORGANIZATION
People’s Republic of China |
NUMBER OF
SHARES
BENEFICIALLY
OWNED BY EACH REPORTING
PERSON
WITH
|
7 |
SOLE VOTING POWER
0 |
8 |
SHARED VOTING POWER
34,101,885(1) |
9 |
SOLE DISPOSITIVE POWER
0 |
10 |
SHARED DISPOSITIVE POWER
0 |
11 |
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
34,101,885(1) |
12 |
CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
(See Instructions)
¨ |
13 |
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
35.2%(2) |
14 |
TYPE OF REPORTING PERSON (See Instructions)
CO |
|
|
|
|
(1) Includes Ordinary Shares beneficially owned by
Poly Victory, Ctrip Shanghai, Mr. Shen, Smart Master, Wise Kingdom, Mr. Sun, Peace Unity and Mr. Zong, in respect of which BTG
Hotels may be deemed to possess shared voting power pursuant to the Support Agreement, dated December 6, 2015, by and among BTG
Hotels, Holdco, Poly Victory, Ctrip Shanghai, Mr. Shen, Smart Master, Mr. Sun, Peace Unity, Mr. Zong and Wise Kingdom.
(2) The calculation is based on 96,421,426 Ordinary
Shares issued and outstanding as of December 6, 2015, as disclosed in the Agreement and Plan of Merger, dated December 6, 2015,
by and among the Company, Holdco, BTG Hotels Group (CAYMAN) Holding Co., Ltd and, solely for certain purposes specified therein,
BTG Hotels, together with 440,220 Ordinary Shares issuable upon exercise of options held by Mr. Shen, Mr. Sun and Mr. Zong that
are exercisable within 60 days after December 6, 2015.
1 |
NAMES OF REPORTING PERSONS
BTG Hotels Group (HONGKONG) Holdings Co., Limited |
2 |
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) ¨
(b) ¨ |
3 |
SEC USE ONLY
|
4 |
SOURCE OF FUNDS (See Instructions)
WC, OO |
5 |
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(e) ¨ |
6 |
CITIZENSHIP OR PLACE OF ORGANIZATION
Hong Kong SAR, PRC |
NUMBER OF
SHARES
BENEFICIALLY
OWNED BY EACH REPORTING
PERSON
WITH
|
7 |
SOLE VOTING POWER
0 |
8 |
SHARED VOTING POWER
34,101,885(1) |
9 |
SOLE DISPOSITIVE POWER
0 |
10 |
SHARED DISPOSITIVE POWER
0 |
11 |
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
34,101,885(1) |
12 |
CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
(See Instructions)
¨ |
13 |
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
35.2%(2) |
14 |
TYPE OF REPORTING PERSON (See Instructions)
CO |
|
|
|
|
(1) Includes Ordinary Shares beneficially owned by Poly Victory, Ctrip Shanghai, Mr. Shen, Smart Master, Wise Kingdom, Mr. Sun, Peace Unity and Mr. Zong, in respect of which Holdco may be deemed to possess shared voting power pursuant to the Support Agreement, dated December 6, 2015, by and among BTG Hotels, Holdco, Poly Victory, Ctrip Shanghai, Mr. Shen, Smart Master, Mr. Sun, Peace Unity, Mr. Zong and Wise Kingdom.
(2) The calculation is based on 96,421,426 Ordinary Shares issued and outstanding as of December 6, 2015, as disclosed in the Agreement and Plan of Merger, dated December 6, 2015, by and among the Company, Holdco, BTG Hotels Group (CAYMAN) Holding Co., Ltd and, solely for certain purposes specified therein, BTG Hotels, together with 440,220 Ordinary Shares issuable upon exercise of options held by Mr. Shen, Mr. Sun and Mr. Zong that are exercisable within 60 days after December 6, 2015.
1 |
NAMES OF REPORTING PERSONS
Beijing Tourism Group Co., Ltd. |
2 |
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) ¨
(b) ¨ |
3 |
SEC USE ONLY
|
4 |
SOURCE OF FUNDS (See Instructions)
WC, OO |
5 |
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(e) ¨ |
6 |
CITIZENSHIP OR PLACE OF ORGANIZATION
People’s Republic of China |
NUMBER OF
SHARES
BENEFICIALLY
OWNED BY EACH REPORTING
PERSON
WITH
|
7 |
SOLE VOTING POWER
15,128(1) |
8 |
SHARED VOTING POWER
14,726,165 Ordinary Shares(2) |
9 |
SOLE DISPOSITIVE POWER
14,741,293 Ordinary Shares(1)(2) |
10 |
SHARED DISPOSITIVE POWER
0 |
11 |
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
14,741,293 Ordinary Shares(1)(2) |
12 |
CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
(See Instructions)
¨ |
13 |
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
15.3%(3) |
14 |
TYPE OF REPORTING PERSON (See Instructions)
CO |
|
|
|
|
(1) Includes 15,128 Ordinary Shares held by Beijing
Tourism Group (HK) Holdings Company Limited, which is wholly owned and controlled by BTG.
(2) Includes 13,446,959 Ordinary Shares held by Poly
Victory, which is wholly owned and controlled by BTG, and 1,279,206 Ordinary Shares represented by 639,603 American depositary
shares of the Company, each representing two Ordinary Shares, held by Poly Victory.
(3) The calculation is based on 96,421,426 Ordinary
Shares issued and outstanding as of December 6, 2015, as disclosed in the Agreement and Plan of Merger, dated December 6, 2015,
by and among the Company, Holdco, BTG Hotels Group (CAYMAN) Holding Co., Ltd and, solely for certain purposes specified therein,
BTG Hotels.
1 |
NAMES OF REPORTING PERSONS
Poly Victory Investments Limited |
2 |
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) ¨
(b) ¨ |
3 |
SEC USE ONLY
|
4 |
SOURCE OF FUNDS (See Instructions)
WC, OO |
5 |
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(e) ¨ |
6 |
CITIZENSHIP OR PLACE OF ORGANIZATION
British Virgin Islands |
NUMBER OF
SHARES
BENEFICIALLY
OWNED BY EACH REPORTING
PERSON
WITH
|
7 |
SOLE VOTING POWER
0 |
8 |
SHARED VOTING POWER
14,726,165 Ordinary Shares(1) |
9 |
SOLE DISPOSITIVE POWER
14,726,165 Ordinary Shares(1) |
10 |
SHARED DISPOSITIVE POWER
0 |
11 |
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
14,726,165 Ordinary Shares(1) |
12 |
CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
(See Instructions)
¨ |
13 |
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
15.3%(2) |
14 |
TYPE OF REPORTING PERSON (See Instructions)
CO |
|
|
|
|
(1) Includes 13,446,959 Ordinary Shares held by Poly
Victory and 1,279,206 Ordinary Shares represented by 639,603 American depositary shares held by Poly Victory.
(2) The calculation is based on 96,421,426 Ordinary
Shares issued and outstanding as of December 6, 2015, as disclosed in the Agreement and Plan of Merger, dated December 6, 2015,
by and among the Company, Holdco, BTG Hotels Group (CAYMAN) Holding Co., Ltd and, solely for certain purposes specified therein,
BTG Hotels.
1 |
NAMES OF REPORTING PERSONS
Ctrip.com International, Ltd. |
2 |
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) ¨
(b) ¨ |
3 |
SEC USE ONLY
|
4 |
SOURCE OF FUNDS (See Instructions)
WC, OO |
5 |
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS 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
14,400,765 Ordinary Shares(1) |
9 |
SOLE DISPOSITIVE POWER
14,400,765 Ordinary Shares(1) |
10 |
SHARED DISPOSITIVE POWER
0 |
11 |
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
14,400,765 Ordinary Shares(1) |
12 |
CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
(See Instructions)
¨ |
13 |
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
14.9%(2) |
14 |
TYPE OF REPORTING PERSON (See Instructions)
CO |
|
|
|
|
(1) Includes 14,400,765 Ordinary Shares held by Ctrip
Shanghai, which is wholly owned and controlled by Ctrip, indirectly through Ctrip (HK).
(2) The calculation is based on 96,421,426 Ordinary
Shares issued and outstanding as of December 6, 2015, as disclosed in the Agreement and Plan of Merger, dated December 6, 2015,
by and among the Company, Holdco, BTG Hotels Group (CAYMAN) Holding Co., Ltd and, solely for certain purposes specified therein,
BTG Hotels.
1 |
NAMES OF REPORTING PERSONS
C-Travel International Limited |
2 |
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) ¨
(b) ¨ |
3 |
SEC USE ONLY
|
4 |
SOURCE OF FUNDS (See Instructions)
WC, OO |
5 |
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS 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(1) |
8 |
SHARED VOTING POWER
0 |
9 |
SOLE DISPOSITIVE POWER
0(1) |
10 |
SHARED DISPOSITIVE POWER
0 |
11 |
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
0(1) |
12 |
CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
(See Instructions)
¨ |
13 |
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
0(1) |
14 |
TYPE OF REPORTING PERSON (See Instructions)
CO |
|
|
|
|
(1) See Item 5(e).
1 |
NAMES OF REPORTING PERSONS
Ctrip.com (Hong Kong) Limited |
2 |
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) ¨
(b) ¨ |
3 |
SEC USE ONLY
|
4 |
SOURCE OF FUNDS (See Instructions)
WC, OO |
5 |
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(e) ¨ |
6 |
CITIZENSHIP OR PLACE OF ORGANIZATION
Hong Kong SAR, PRC |
NUMBER OF
SHARES
BENEFICIALLY
OWNED BY EACH REPORTING
PERSON
WITH
|
7 |
SOLE VOTING POWER
0 |
8 |
SHARED VOTING POWER
14,400,765 Ordinary Shares(1) |
9 |
SOLE DISPOSITIVE POWER
14,400,765 Ordinary Shares(1) |
10 |
SHARED DISPOSITIVE POWER
0 |
11 |
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
14,400,765 Ordinary Shares(1) |
12 |
CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
(See Instructions)
¨ |
13 |
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
14.9%(2) |
14 |
TYPE OF REPORTING PERSON (See Instructions)
CO |
|
|
|
|
(1) Includes 14,400,765 Ordinary Shares held by Ctrip
Shanghai, which is wholly owned by Ctrip (HK).
(2) The calculation is based on 96,421,426 Ordinary
Shares issued and outstanding as of December 6, 2015, as disclosed in the Agreement and Plan of Merger, dated December 6, 2015,
by and among the Company, Holdco, BTG Hotels Group (CAYMAN) Holding Co., Ltd and, solely for certain purposes specified therein,
BTG Hotels.
1 |
NAMES OF REPORTING PERSONS
Ctrip Travel Information Technology (Shanghai) Co., Ltd. |
2 |
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) ¨
(b) ¨ |
3 |
SEC USE ONLY
|
4 |
SOURCE OF FUNDS (See Instructions)
WC, OO |
5 |
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(e) ¨ |
6 |
CITIZENSHIP OR PLACE OF ORGANIZATION
People’s Republic of China |
NUMBER OF
SHARES
BENEFICIALLY
OWNED BY EACH REPORTING
PERSON
WITH
|
7 |
SOLE VOTING POWER
0 |
8 |
SHARED VOTING POWER
14,400,765 Ordinary Shares(1) |
9 |
SOLE DISPOSITIVE POWER
14,400,765 Ordinary Shares(1) |
10 |
SHARED DISPOSITIVE POWER
0 |
11 |
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
14,400,765 Ordinary Shares(1) |
12 |
CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
(See Instructions)
¨ |
13 |
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
14.9%(2) |
14 |
TYPE OF REPORTING PERSON (See Instructions)
CO |
|
|
|
|
(1) Includes 14,400,765 Ordinary Shares held by Ctrip
Shanghai.
(2) The calculation is based on 96,421,426 Ordinary
Shares issued and outstanding as of December 6, 2015, as disclosed in the Agreement and Plan of Merger, dated December 6, 2015,
by and among the Company, Holdco, BTG Hotels Group (CAYMAN) Holding Co., Ltd and, solely for certain purposes specified therein,
BTG Hotels.
1 |
NAMES OF REPORTING PERSONS
Neil Nanpeng Shen |
2 |
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) ¨
(b) ¨ |
3 |
SEC USE ONLY
|
4 |
SOURCE OF FUNDS (See Instructions)
PF, OO |
5 |
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(e) ¨ |
6 |
CITIZENSHIP OR PLACE OF ORGANIZATION
Hong Kong SAR, PRC |
NUMBER OF
SHARES
BENEFICIALLY
OWNED BY EACH REPORTING
PERSON
WITH
|
7 |
SOLE VOTING POWER
0 |
8 |
SHARED VOTING POWER
3,867,245 Ordinary Shares(1) |
9 |
SOLE DISPOSITIVE POWER
3,867,245 Ordinary Shares(1) |
10 |
SHARED DISPOSITIVE POWER
0 |
11 |
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
3,867,245 Ordinary Shares(1) |
12 |
CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
(See Instructions)
¨ |
13 |
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
4.0%(2) |
14 |
TYPE OF REPORTING PERSON (See Instructions)
IN |
|
|
|
|
(1) Includes (i) 375,500 Ordinary Shares held by
Mr. Shen, (ii) 3,275,389 Ordinary Shares held by Smart Master, a British Virgin Islands company owned and controlled by Mr. Shen
and his spouse, (iii) 183,356 Ordinary Shares represented by 91,678 American depositary shares held by Smart Master, and (iv)
33,000 Ordinary Shares issuable upon exercise of options held by Mr. Shen that are exercisable within 60 days after December 6,
2015.
(2) The calculation is based on 96,421,426 Ordinary
Shares issued and outstanding as of December 6, 2015, as disclosed in the Agreement and Plan of Merger, dated December 6, 2015,
by and among the Company, Holdco, BTG Hotels Group (CAYMAN) Holding Co., Ltd and, solely for certain purposes specified therein,
BTG Hotels, together with 33,000 Ordinary Shares issuable upon exercise of options held by Mr. Shen that are exercisable within
60 days after December 6, 2015.
1 |
NAMES OF REPORTING PERSONS
Smart Master International Limited |
2 |
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) ¨
(b) ¨ |
3 |
SEC USE ONLY
|
4 |
SOURCE OF FUNDS (See Instructions)
WC, OO |
5 |
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(e) ¨ |
6 |
CITIZENSHIP OR PLACE OF ORGANIZATION
British Virgin Islands |
NUMBER OF
SHARES
BENEFICIALLY
OWNED BY EACH REPORTING
PERSON
WITH
|
7 |
SOLE VOTING POWER
0 |
8 |
SHARED VOTING POWER
3,458,745 Ordinary Shares(1) |
9 |
SOLE DISPOSITIVE POWER
3,458,745 Ordinary Shares(1) |
10 |
SHARED DISPOSITIVE POWER
0 |
11 |
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
3,458,745 Ordinary Shares(1) |
12 |
CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
(See Instructions)
¨ |
13 |
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
3.6%(2) |
14 |
TYPE OF REPORTING PERSON (See Instructions)
CO |
|
|
|
|
(1) Includes (i) 3,275,389 Ordinary Shares held by
Smart Master and (ii) 183,356 Ordinary Shares represented by 91,678 American depositary shares held by Smart Master
International Limited.
(2) The calculation is based on 96,421,426 Ordinary
Shares issued and outstanding as of December 6, 2015, as disclosed in the Agreement and Plan of Merger, dated December 6, 2015,
by and among the Company, Holdco, BTG Hotels Group (CAYMAN) Holding Co., Ltd and, solely for certain purposes specified therein,
BTG Hotels.
1 |
NAMES OF REPORTING PERSONS
James Jianzhang Liang |
2 |
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) ¨
(b) ¨ |
3 |
SEC USE ONLY
|
4 |
SOURCE OF FUNDS (See Instructions)
PF, OO |
5 |
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(e) ¨ |
6 |
CITIZENSHIP OR PLACE OF ORGANIZATION
Saint Kitts and Nevis |
NUMBER OF
SHARES
BENEFICIALLY
OWNED BY EACH REPORTING
PERSON
WITH
|
7 |
SOLE VOTING POWER
21,000 Ordinary Shares(1) |
8 |
SHARED VOTING POWER
317,294 Ordinary Shares(2) |
9 |
SOLE DISPOSITIVE POWER
21,000 Ordinary Shares(1) |
10 |
SHARED DISPOSITIVE POWER
317,294 Ordinary Shares(2) |
11 |
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
338,294 Ordinary Shares(1)(2) |
12 |
CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
(See Instructions)
¨ |
13 |
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
0.4%(3) |
14 |
TYPE OF REPORTING PERSON (See Instructions)
IN |
|
|
|
|
(1) Includes (i) 4,500 Ordinary Shares held by Mr.
Liang and (ii) 16,500 Ordinary Shares issuable upon exercise of options held by Mr. Liang that are exercisable within 60 days December
6, 2015.
(2) Includes 317,294 Ordinary Shares represented by
158,647 American depositary shares held by Wise Kingdom, a British Virgin Islands company wholly owned and controlled by Ms. Lau,
Mr. Liang’s spouse.
(3) The calculation is based on 96,421,426 Ordinary
Shares issued and outstanding as of December 6, 2015, as disclosed in the Agreement and Plan of Merger, dated December 6, 2015,
by and among the Company, Holdco, BTG Hotels Group (CAYMAN) Holding Co., Ltd and, solely for certain purposes specified therein,
BTG Hotels, together with 16,500 Ordinary Shares issuable upon exercise of options held by Mr. Liang that are exercisable
within 60 days after December 6, 2015.
1 |
NAMES OF REPORTING PERSONS
Chung Lau |
2 |
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) ¨
(b) ¨ |
3 |
SEC USE ONLY
|
4 |
SOURCE OF FUNDS (See Instructions)
PF, OO |
5 |
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(e) ¨ |
6 |
CITIZENSHIP OR PLACE OF ORGANIZATION
Hong Kong SAR, PRC |
NUMBER OF
SHARES
BENEFICIALLY
OWNED BY EACH REPORTING
PERSON
WITH
|
7 |
SOLE VOTING POWER
0 |
8 |
SHARED VOTING POWER
338,294 Ordinary Shares(1) |
9 |
SOLE DISPOSITIVE POWER
0 |
10 |
SHARED DISPOSITIVE POWER
338,294 Ordinary Shares(1) |
11 |
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
338,294 Ordinary Shares(1) |
12 |
CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
(See Instructions)
¨ |
13 |
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
0.4%(2) |
14 |
TYPE OF REPORTING PERSON (See Instructions)
IN |
|
|
|
|
(1) Includes (i) 317,294 Ordinary Shares represented
by 158,647 American depositary shares held by Wise Kingdom, a British Virgin Islands company wholly owned and controlled by Ms.
Lau, (ii) 4,500 Ordinary Shares held by Mr. Liang, Ms. Lau’s spouse, and (iii) 16,500 Ordinary Shares issuable upon exercise
of options held by Mr. Liang that are exercisable within 60 days December 6, 2015.
(3) The calculation is based on 96,421,426 Ordinary
Shares issued and outstanding as of December 6, 2015, as disclosed in the Agreement and Plan of Merger, dated December 6, 2015,
by and among the Company, Holdco, BTG Hotels Group (CAYMAN) Holding Co., Ltd and, solely for certain purposes specified therein,
BTG Hotels, together with 16,500 Ordinary Shares issuable upon exercise of options held by Mr. Liang that are exercisable
within 60 days after December 6, 2015.
1 |
NAMES OF REPORTING PERSONS
Wise Kingdom Group Limited |
2 |
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) ¨
(b) ¨ |
3 |
SEC USE ONLY
|
4 |
SOURCE OF FUNDS (See Instructions)
WC, OO |
5 |
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(e) ¨ |
6 |
CITIZENSHIP OR PLACE OF ORGANIZATION
British Virgin Islands |
NUMBER OF
SHARES
BENEFICIALLY
OWNED BY EACH REPORTING
PERSON
WITH
|
7 |
SOLE VOTING POWER
0 |
8 |
SHARED VOTING POWER
317,294 Ordinary Shares(1) |
9 |
SOLE DISPOSITIVE POWER
0 |
10 |
SHARED DISPOSITIVE POWER
317,294 Ordinary Shares(1) |
11 |
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
317,294 Ordinary Shares(1) |
12 |
CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
(See Instructions)
¨ |
13 |
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
0.3%(2) |
14 |
TYPE OF REPORTING PERSON (See Instructions)
CO |
|
|
|
|
(1) Includes 317,294 Ordinary Shares represented by
158,647 American depositary shares held by Wise Kingdom.
(2) The calculation is based on 96,421,426 Ordinary
Shares issued and outstanding as of December 6, 2015, as disclosed in the Agreement and Plan of Merger, dated December 6, 2015,
by and among the Company, Holdco, BTG Hotels Group (CAYMAN) Holding Co., Ltd and, solely for certain purposes specified therein,
BTG Hotels.
1 |
NAMES OF REPORTING PERSONS
David Jian Sun |
2 |
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) ¨
(b) ¨ |
3 |
SEC USE ONLY
|
4 |
SOURCE OF FUNDS (See Instructions)
PF, OO |
5 |
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(e) ¨ |
6 |
CITIZENSHIP OR PLACE OF ORGANIZATION
People’s Republic of China |
NUMBER OF
SHARES
BENEFICIALLY
OWNED BY EACH REPORTING
PERSON
WITH
|
7 |
SOLE VOTING POWER
0 |
8 |
SHARED VOTING POWER
532,944 Ordinary Shares(1) |
9 |
SOLE DISPOSITIVE POWER
532,944 Ordinary Shares(1) |
10 |
SHARED DISPOSITIVE POWER
0 |
11 |
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
532,944 Ordinary Shares(1) |
12 |
CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
(See Instructions)
¨ |
13 |
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
0.6%(2) |
14 |
TYPE OF REPORTING PERSON (See Instructions)
IN |
|
|
|
|
(1) Includes (i) 30,138 Ordinary Shares held by Mr.
Sun, (ii) 228,806 Ordinary Shares held by Peace Unity, a British Virgin Islands company wholly owned and controlled by Mr. Sun
indirectly through Townbright, a British Virgin Islands company wholly owned and controlled by Mr. Sun, (iii) 40,000 Ordinary Shares
represented by 20,000 American depositary shares held by Peace Unity, and (iv) 234,000 Ordinary Shares issuable upon exercise of
options held by Mr. Sun that are exercisable within 60 days December 6, 2015.
(2) The calculation is based on 96,421,426 Ordinary
Shares issued and outstanding as of December 6, 2015, as disclosed in the Agreement and Plan of Merger, dated December 6, 2015,
by and among the Company, Holdco, BTG Hotels Group (CAYMAN) Holding Co., Ltd and, solely for certain purposes specified therein,
BTG Hotels, together with 234,000 Ordinary Shares issuable upon exercise of options held by Mr. Sun that are exercisable within
60 days after December 6, 2015.
1 |
NAMES OF REPORTING PERSONS
Townbright Holdings Limited |
2 |
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) ¨
(b) ¨ |
3 |
SEC USE ONLY
|
4 |
SOURCE OF FUNDS (See Instructions)
WC, OO |
5 |
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(e) ¨ |
6 |
CITIZENSHIP OR PLACE OF ORGANIZATION
British Virgin Islands |
NUMBER OF
SHARES
BENEFICIALLY
OWNED BY EACH REPORTING
PERSON
WITH
|
7 |
SOLE VOTING POWER
0 |
8 |
SHARED VOTING POWER
268,806 Ordinary Shares(1) |
9 |
SOLE DISPOSITIVE POWER
268,806 Ordinary Shares(1) |
10 |
SHARED DISPOSITIVE POWER
0 |
11 |
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
268,806 Ordinary Shares(1) |
12 |
CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
(See Instructions)
¨ |
13 |
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
0.3%(2) |
14 |
TYPE OF REPORTING PERSON (See Instructions)
CO |
|
|
|
|
(1) Includes (i) 228,806 Ordinary Shares held by Peace
Unity, a British Virgin Islands company wholly owned and controlled by Townbright, and (ii) 40,000 Ordinary Shares represented
by 20,000 American depositary shares held by Peach Unity.
(2) The calculation is based on 96,421,426 Ordinary
Shares issued and outstanding as of December 6, 2015, as disclosed in the Agreement and Plan of Merger, dated December 6, 2015,
by and among the Company, Holdco, BTG Hotels Group (CAYMAN) Holding Co., Ltd and, solely for certain purposes specified therein,
BTG Hotels.
1 |
NAMES OF REPORTING PERSONS
Peace Unity Investments Limited |
2 |
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) ¨
(b) ¨ |
3 |
SEC USE ONLY
|
4 |
SOURCE OF FUNDS (See Instructions)
WC, OO |
5 |
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(e) ¨ |
6 |
CITIZENSHIP OR PLACE OF ORGANIZATION
British Virgin Islands |
NUMBER OF
SHARES
BENEFICIALLY
OWNED BY EACH REPORTING
PERSON
WITH
|
7 |
SOLE VOTING POWER
0 |
8 |
SHARED VOTING POWER
268,806 Ordinary Shares(1) |
9 |
SOLE DISPOSITIVE POWER
268,806 Ordinary Shares(1) |
10 |
SHARED DISPOSITIVE POWER
0 |
11 |
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
268,806 Ordinary Shares(1) |
12 |
CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
(See Instructions)
¨ |
13 |
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
0.3%(2) |
14 |
TYPE OF REPORTING PERSON (See Instructions)
CO |
|
|
|
|
(1) Includes (i) 228,806 Ordinary Shares held
by Peace Unity and (ii) 40,000 Ordinary Shares represented by 20,000 American depositary shares held by Peach Unity.
(2) The calculation is based on 96,421,426 Ordinary
Shares issued and outstanding as of December 6, 2015, as disclosed in the Agreement and Plan of Merger, dated December 6, 2015,
by and among the Company, Holdco, BTG Hotels Group (CAYMAN) Holding Co., Ltd and, solely for certain purposes specified therein,
BTG Hotels.
1 |
NAMES OF REPORTING PERSONS
Jason Xiangxin Zong |
2 |
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) ¨
(b) ¨ |
3 |
SEC USE ONLY
|
4 |
SOURCE OF FUNDS (See Instructions)
PF, OO |
5 |
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(e) ¨ |
6 |
CITIZENSHIP OR PLACE OF ORGANIZATION
People’s Republic of China |
NUMBER OF
SHARES
BENEFICIALLY
OWNED BY EACH REPORTING
PERSON
WITH
|
7 |
SOLE VOTING POWER
0 |
8 |
SHARED VOTING POWER
257,472 Ordinary Shares(1) |
9 |
SOLE DISPOSITIVE POWER
257,472 Ordinary Shares(1) |
10 |
SHARED DISPOSITIVE POWER
0 |
11 |
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
257,472 Ordinary Shares(1) |
12 |
CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
(See Instructions)
¨ |
13 |
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
0.3%(2) |
14 |
TYPE OF REPORTING PERSON (See Instructions)
IN |
|
|
|
|
(1) Includes (i) 74,272 Ordinary Shares held by Mr.
Zong, (ii) 10,000 Ordinary Shares represented by 5,000 American depositary shares held by Mr. Zong and (iii) 173,200 Ordinary Shares
issuable upon exercise of options held by Mr. Zong that are exercisable within 60 days December 6, 2015.
(2) The calculation is based on 96,421,426 Ordinary
Shares issued and outstanding as of December 6, 2015, as disclosed in the Agreement and Plan of Merger, dated December 6, 2015,
by and among the Company, Holdco, BTG Hotels Group (CAYMAN) Holding Co., Ltd and, solely for certain purposes specified therein,
BTG Hotels, together with 173,200 Ordinary Shares issuable upon exercise of options held by Mr. Zong that are exercisable within
60 days December 6, 2015.
Item 1. Security and Issuer.
This Schedule 13D relates to the Ordinary Shares
of the Company.
ADSs of the Company are listed on Nasdaq Global
Market under the symbol “HMIN.”
The principal executive offices of the Company
are located at No. 124 Cao Bao Road, Xu Hui District, Shanghai 200235, People’s Republic of China (the “PRC”).
Item 2. Identity and Background.
BTG Hotels, Holdco, BTG, Poly Victory, Ctrip,
C-Travel, Ctrip (HK), Ctrip Shanghai, Mr. Shen, Smart Master, Mr. Liang, Ms. Lau, Wise Kingdom, Mr. Sun, Townbright, Peace Unity
and Mr. Zong are collectively referred to herein as “Reporting Persons,” and each, a “Reporting Person.”
With respect to the Original Filing and the
Ctrip Schedule 13D, the following supersedes information previously provided in Item 2:
(a)-(c), (f) This Schedule 13D is being filed
jointly by the Reporting Persons pursuant to Rule 13d-1(k) promulgated by the SEC under Section 13 of the Act. The Reporting Persons
may be deemed to constitute a “group” within the meaning of Section 13(d)(3) of the Act with respect to the transaction
described in Item 4 of this Schedule 13D.
Except as otherwise stated herein, each Reporting
Person expressly disclaims beneficial ownership for all purposes of the Ordinary Shares (including Ordinary Shares represented
by the ADSs) held by each other Reporting Person.
The agreement among the Reporting Persons relating
to the joint filing is attached hereto as Exhibit A. Information with respect to each of the Reporting Persons is given
solely by such Reporting Person, and no Reporting Person assumes responsibility for the accuracy or completeness of the information
concerning the other Reporting Persons, except as otherwise provided in Rule 13d-1(k).
BTG Hotels is a PRC joint stock company listed
on the Shanghai Stock Exchange and is principally engaged in the management of hotels and tourism destinations. BTG holds a 60.12%
equity interest in BTG Hotels. Holdco is a wholly owned subsidiary of BTG Hotels incorporated in Hong Kong and was formed solely
for the purpose of engaging in the Merger (as defined in Item 4 below). The principal business address of each of BTG Hotels and
Holdco is c/o 51 Fuxingmennei Avenue, Xicheng District, Beijing 100031, People’s Republic of China.
BTG is a tourism service group with subsidiaries
that are engaged in dining, lodging, transportation, travel, shopping, entertainment and other businesses in the PRC and abroad.
BTG is a state-owned enterprise organized and existing under the laws of the PRC. The principal business address of BTG is No. 10
Yabao Road, Chaoyang District, Beijing 100020, People’s Republic of China.
Poly Victory is principally an investment holding
vehicle. Poly Victory is a company organized and existing under the laws of the British Virgin Islands, and is wholly owned and
controlled by BTG. The principal business address of Poly Victory Investments Limited is Room 3406, Bank of America Tower, 12 Harcourt
Road, Central, Hong Kong.
Ctrip is a holding company whose American depositary
shares representing its ordinary shares are listed on the NASDAQ Global Select Market. Through its various subsidiaries and consolidated
affiliated entities, Ctrip operates as a leading travel service provider of accommodation reservation, transportation ticketing,
packaged tours and corporate travel management in the PRC. C-Travel carries out various equity and/or strategic investment activities
of Ctrip. Ctrip (HK) is principally engaged in providing travel-related service. Ctrip Shanghai is principally engaged in the research,
development and provision of travel software and related information and technology consulting services. Both C-Travel and Ctrip
(HK) are wholly owned subsidiaries of Ctrip. Ctrip Shanghai is a wholly owned subsidiary of Ctrip (HK). The business address of
each of Ctrip, C-Travel, Ctrip (HK) and Ctrip Shanghai is c/o 968 Jin Zhong Road, Shanghai 200335, People’s Republic of China.
Mr. Shen is the Co-Founder and Co-Chairman of
the Board of Directors of the Company and an Independent Director of Ctrip. Smart Master is principally an investment holding vehicle.
Smart Master is a company organized and existing under the laws of the British Virgin Islands, and is owned and controlled by Mr.
Shen and his spouse. The business address of each of Mr. Shen and Smart Master is c/o Suite 3613, 36/F, Two Pacific Place, 88 Queensway,
Hong Kong.
Mr. Liang is the Co-Founder and Director of
the Company and Chairman of the Board of Directors and Chief Executive Officer of Ctrip. The business address of Mr. Liang is c/o
968 Jin Zhong Road, Shanghai 200335, People’s Republic of China. Ms. Lau is the spouse of Mr. Liang. Wise Kingdom is principally
an investment holding vehicle. Wise Kingdom is a company organized and existing under the laws of the British Virgin Islands, and
is wholly owned and controlled by Ms. Lau. The address of each of Ms. Lau and Wise Kingdom is 1883 Huamu Road, Pudong New District,
Shanghai 200120, People’s Republic of China.
Mr. Sun is the Chief Executive Officer and Director
of the Company. Each of Townbright and Peace Unity is principally an investment holding vehicle and is a company organized and
existing under the laws of the British Virgin Islands. Townbright is wholly owned and controlled by Mr. Sun, and Peace Unity is
wholly owned and controlled by Townbright. The business address of each of Mr. Sun, Townbright and Peace Unity is c/o No. 124,
Caobao Road, Xuhui District, Shanghai 200235, People’s Republic of China.
Mr. Zong is the President-Chief Operating Officer
of the Company. The business address of Mr. Zong is c/o No. 124, Caobao Road, Xuhui District, Shanghai 200235, People’s
Republic of China.
The name, business address, present principal
occupation or employment and citizenship of each of the executive officers and directors of each of BTG Hotels, Holdco, BTG, Poly
Victory, Ctrip, C-Travel, Ctrip (HK), Ctrip Shanghai, Smart Master, Wise Kingdom, Townbright and Peace Unity are set forth on Schedule
A hereto and are incorporated herein by reference.
(d), (e) During the last five years, none
of the Reporting Persons and, to the best knowledge of each Reporting Person, any of the persons listed on Schedule A hereto
has been: (i) convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors) or (ii) a party
to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding 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.
Item 3. Source and Amount of Funds or Other Consideration.
With respect to the Original Filing and the
Ctrip Schedule 13D, Item 3 is hereby supplemented as follows:
Pursuant to an agreement and plan of merger,
dated as of December 6, 2015 (the “Merger Agreement”), among Holdco, BTG Hotels Group (CAYMAN) Holding Co.,
Ltd, an exempted company with limited liability incorporated under the laws of the Cayman Islands and a wholly owned subsidiary
of Holdco (“Merger Sub”), the Company, and solely for the purposes specified therein, BTG Hotels, Merger Sub
will be merged with and into the Company, with the Company continuing as the surviving company (the “Merger”).
The descriptions of the Merger and of the Merger Agreement set forth in Item 4 below are incorporated by reference in their entirety
in this Item 3. The information disclosed in this paragraph is qualified in its entity by reference to the Merger Agreement, a
copy of which is filed as Exhibit E and is incorporated by reference in its entirety.
It is anticipated that, at a price of US$35.80
in cash per ADS or US$17.90 in cash per Ordinary Share, approximately US$1.12 billion will be expended in acquiring approximately
62.8 million outstanding Ordinary Shares, including Ordinary Shares represented by ADSs (calculated based on the number of outstanding
Ordinary Shares as of December 6, 2015 and excluding Ordinary Shares, including Ordinary Shares represented by certain ADSs, held
by Poly Victory, Ctrip Shanghai, Mr. Shen, Smart Master, Mr. Sun, Peace Unity, Mr. Zong and Wise Kingdom (collectively, the “Rollover
Shareholders,” and each, a “Rollover Shareholder”), as set forth opposite their respective names on
Schedule B hereto (collectively, the “Rollover Shares”)).
The financing for the Merger and other transactions
contemplated by the Merger Agreement will be obtained pursuant to a debt commitment letter, dated as of December 6, 2015 (the “Debt
Commitment Letter”), delivered by Industrial and Commercial Bank Limited, New York Brach (the “Lender”),
to BTG Hotels and Holdco. Under the terms and subject to the conditions of the Debt Commitment Letter, the Lender will provide
a senior secured term loan facility in an aggregate amount of up to US$1.2 billion to Holdco. The information disclosed in this
paragraph is qualified in its by reference to the Debt Commitment Letter, a copy of which is filed as Exhibit F and is incorporated
by reference in its entirety.
In addition, BTG Hotels, BTG and the Rollover
Shares (other than Poly Victory) entered into an Agreement of Asset Purchase by Share Issue, dated as of December 6, 2015 (the
“Share Exchange Agreement”). On the terms and subject to the conditions of the Share Exchange Agreement , BTG
Hotels will (i) issue 109,218,761 common shares of BTG Hotels to BTG in exchange for all of the issued and outstanding shares of
Poly Victory held by BTG and (ii) issue to each Rollover Shareholder (other than Poly Victory), in exchange for Rollover Shares
held by them, certain number of common shares of BTG Hotels as set forth opposite their respective names on Schedule B
thereto (the “Share Exchange Transaction”). Pursuant to the Share Exchange Agreement, in determining the number
of common shares of BTG Hotels to be issued, the price of each Rollover Share is equal to the $17.90 per Ordinary Share merger
consideration under the Merger Agreement, and the price per BTG Hotels common shares used is RMB15.69 per share, as permitted under
applicable PRC regulations. The information disclosed in this paragraph is qualified in its entirety by reference to the Share
Exchange Agreement, a copy of which is filed as Exhibit G hereto and is incorporated by reference in its entirety.
Item 4. Purpose of Transaction.
With respect to the Original Filing and the
Ctrip Schedule 13D, Item 4 is hereby supplemented as follows:
Pursuant to the Merger Agreement, Merger Sub
will be merged with and into the Company, with the Company being the surviving company. At the effective time of the Merger (the
“Effective Time”), each Ordinary Share, including Ordinary Shares represented by ADSs, issued and outstanding
immediately prior to the Effective Time, other than (i) the Rollover Shares, (ii) Ordinary Shares owned by any shareholder of the
Issuer who validly exercises, and has not effectively withdrawn or lost, such shareholder’s right to dissent from the Merger
in accordance with Section 238 of the Companies Law (2013 Revision) of the Cayman Islands, and (iii) the Excluded Shares (as defined
below), will be cancelled and shall thereafter represent the right to receive an amount equal to US$17.90 in cash per Ordinary
Share, and each ADS issued and outstanding prior to the Effective Time (other than ADSs that represent Rollover Shares, if any,
and Excluded Shares (as defined below)) shall represent the right to surrender the ADS in exchange for US$35.80 in cash per ADS,
in each case, without interest and net of any applicable withholding taxes. “Excluded Shares” means, Ordinary
Shares, including Ordinary Shares represented by ADSs, that are held by the Company of any of its subsidiaries and that are reserved
for issuance and allocation pursuant to the currently effective share incentive plan of the Company. Each of the Excluded Shares
and ADSs representing the Excluded Shares will be cancelled and cease to exist at the Effective Time without payment of any consideration
or distribution therefor.
The consummation of the Merger is subject to
the satisfaction or waiver of various conditions set forth in the Merger Agreement including obtaining the requisite approval of
the Company’s shareholders, the requisite approval of BTG Hotels’ shareholders and requisite regulatory approvals,
in each case, with respect to the transactions contemplated thereby and as set forth in the Merger Agreement. Pursuant to the Merger
Agreement, the approval of the Merger Agreement and the transactions contemplated by the Merger Agreement by the Company’s
shareholders requires both (i) a special resolution in accordance with Cayman Islands law by the affirmative vote of holders of
Shares representing at least two-thirds of the Shares present and voting in person or by proxy at a meeting of the Company’s
shareholders (the “Company Shareholders’ Meeting”), and (ii) so long as the Shares (excluding Shares
held by the Rollover Shareholders) present and voting in person or by proxy at the Company Shareholders’ Meeting exceed 50%
of all of the issued and outstanding Shares of the Company as of the close of business on the record date established for the Company
Shareholders’ Meeting, the affirmative vote of holders of shares representing more than 50% of the Shares (excluding the
Shares held by the Rollover Shareholders) in person or by proxy at the Company Shareholders’ Meeting.
The Merger Agreement may be terminated by the Company or Holdco under certain circumstances.
The information disclosed in this paragraph
is qualified in its entirety by reference to the Merger Agreement, a copy of which is filed as Exhibit E and is incorporated
herein by reference in its entirety.
If the Merger is consummated, the Company’s
ADSs will become eligible for termination of registration pursuant to Section 12(g)(4) of the Act and will be delisted from the
Nasdaq Global Market, and the Company will be privately held by Holdco and the Rollover Shareholders.
Concurrently with the execution of the Merger
Agreement, BTG Hotels, BTG, the Rollover Shareholders, Ctrip, Mr. Liang and Ms. Lau entered into a support agreement (the “Support
Agreement”), pursuant to which each of Ctrip, the Rollover Shareholders, who, collectively, own approximately 34.9% of
the issued and outstanding Ordinary Shares of the Company, agrees (i) to vote any and all of their Shares in favor of the authorization
and approval of the Merger Agreement and the transactions contemplated thereby and appoints BTG Hotels or any person designated
by BTG Hotels as proxy and attorney-in-fact to vote their Shares; (ii) to receive no cash consideration with respect to the Rollover
Shares; and (iii) that all of the Rollover Shares will be converted into ordinary shares of the surviving company at the Effective
Time, in each case, upon the terms and subject to the conditions of the Support Agreement. The information disclosed in this paragraph
is qualified in its entirety by reference to the Support Agreement, a copy of which is filed as Exhibit H and is incorporated
herein by reference in its entirety.
In addition, BTG Hotels, Poly Victory, Ctrip,
Mr. Shen, Mr. Liang and Mr. Sun (collectively, the “Buyer Consortium”) entered into a consortium agreement
(the “Consortium Agreement”), pursuant to which members of the Buyer Consortium members have agreed to, among
other things, (i) form a consortium to work exclusively with one another for a period until September 5, 2016 or until the Consortium
Agreement is terminated; (ii) to cooperate and proceed in good faith to negotiate and (iii) to cooperate in appointing legal, financial
and other advisors, in each case, to undertake the transaction contemplated thereby. The information disclosed in this paragraph
is qualified in its entirety by reference to the Consortium Agreement, a copy of which is filed as Exhibit I and is incorporated
herein by reference in its entirety.
Furthermore, BTG Hotels, BTG and the Rollover
Shareholders (other than Poly Victory) entered into the Share Exchange Agreement in connection with the Share Exchange Transaction.
The consummation of the Share Exchange Transaction is subject to the satisfaction of various conditions set forth in the Share
Exchange Agreement, including obtaining requisite regulatory approvals with respect to the Share Exchange Transaction. The consummation
of the Share Exchange Transaction is not conditional on the consummation of the Merger, and the consummation of the Merger is not
conditional on the consummation of the Share Exchange Transaction. Pursuant to the Share Exchange Agreement, BTG and the Rollover
Shareholders (other than Poly Victory), which will subscribe for BTG Hotels common shares in the Share Exchange Transaction, have
also agreed to certain lock-up periods with respect to the newly issued BTG Hotels common shares as set forth therein. The information
disclosed in this paragraph is qualified in its entirety by reference to the Share Exchange Agreement, a copy of which is filed
as Exhibit G hereto and is incorporated by reference in its entirety.
Item 3 is incorporated by reference in this
Item 4.
Except as indicated above, the Reporting Persons
have no plans or proposals which relate to or would result in any of the actions specified in paragraphs (a) through (j) of Item
4 of Schedule 13D. The Reporting Persons may, at any time and from time to time, formulate other purposes, plans or proposals regarding
the Company, or any other actions that could involve one or more of the types of the transactions that have one or more of the
results described in paragraphs (a) through (j) of Item 4 of Schedule 13D.
Item 5. Interest in Securities of the Issuer.
With respect to the Original Filing and the
Ctrip Schedule 13D, the following supersedes information previously provided in Item 5:
(a)–(b) The responses of each Reporting
Person to Rows (11) through (13) of the cover pages of this Schedule 13D are hereby incorporated by reference in this Item 5. The
percentage of the class of securities identified pursuant to Item 1 beneficially owned by each Reporting Person is based on 96,421,426
Ordinary Shares issued and outstanding as of December 6, 2015, as disclosed in the Merger Agreement.
By virtue of their actions as described herein,
the Reporting Persons may be deemed to constitute a “group” within the meaning of Rule 13d-5(b) under the Act. As a
member of a group, each of the Reporting Persons may be deemed to beneficially own the Ordinary Shares beneficially owned by the
members of the group as a whole; thus, each Reporting Person may be deemed to beneficially own an aggregate of 34,138,013 Ordinary
Shares (including Ordinary Shares represented by the ADSs and Ordinary Shares issuable upon the exercise of options that are exercisable
within 60 days after December 6, 2015), which represents approximately 35.2% of the total outstanding Ordinary Shares (including
Ordinary Shares represented by ADSs, and together with an aggregate of 456,700 Ordinary Shares issuable upon the exercise of options
held by Reporting Persons that are exercisable within 60 days after December 6, 2015). Except as otherwise stated herein, each
Reporting Person expressly disclaims any beneficial ownership of the Ordinary Shares held by each other Reporting Person.
As of December 6, 2015, Mr. Yi Liu, Vice Chairman
of the Board of Directors and General Manager of BTG, Director of Poly Victory and Co-Chairman of the Board of Directors of the
Company (“Mr. Liu”), beneficially owned 22,500 Ordinary Shares, which consist of Ordinary Shares issuable upon
the exercise of the options held by Mr. Liu that are exercisable within 60 days after December 6, 2015.
Mr. Min Bao, Deputy General Manager of BTG,
Director of Poly Victory and Director of the Company (“Mr. Bao”), beneficially owned 22,000 Ordinary Shares
as of December 6, 2015, including 5,500 Ordinary Shares represented by 2,750 ADSs held by Mr. Bao and 16,500 Ordinary Shares issuable
upon the exercise of the options held by Mr. Bao that are exercisable within 60 days after December 6, 2015.
Mr. Min Fan, Director and President of Ctrip,
Director of each of C-Travel and Ctrip (HK) and Legal Representative of Ctrip Shanghai, beneficially owned 598,654 Ordinary Shares
represented by 299,327 ADSs held by Mr. Fan as of December 6, 2015.
Except as disclosed in this Schedule 13D, none
of the Reporting Persons nor, to the best of their knowledge, any of the persons listed in Schedule A hereto, beneficially
owns any Ordinary Shares or has the right to acquire any Ordinary Shares.
Except as disclosed in this Schedule 13D, none
of the Reporting Persons nor, to the best of their knowledge, any of the persons listed in Schedule A hereto, presently
has the power to vote or to direct the vote or to dispose or direct the disposition of any of the
Ordinary Shares which it may be deemed to beneficially own.
(c) On November 27, 2015, Mr. Liu and
Mr. Bao transferred 11,472 and 3,656 Ordinary Shares, respectively, to Beijing Tourism Group (HK) Holdings Company Limited, a company
incorporated in Hong Kong and wholly owned and controlled by BTG, in a private transaction at a per Ordinary Share purchase price
equaling the par value of each Ordinary Share.
On November 27, 2015, Ctrip (HK) completed a
transfer of 14,400,765 Ordinary Shares held by Ctrip (HK) to Ctrip Shanghai, in a private transaction at a purchase price of US$17.90
per Ordinary Share, which represented the offer price set forth in the non-binding “going private” proposal, dated
June 11, 2015, of the Buyer Consortium to the board of directors of the Company.
Except as disclosed in this Schedule 13D, none
of the Reporting Persons nor, to the best of their knowledge, any of the persons listed in Schedule A hereto, has effected
any transaction in the Ordinary Shares during the past 60 days.
(d) Except as disclosed in this Schedule
13D, to the best knowledge of the Reporting Persons, no other person has the right to receive or the power to direct the receipt
of dividends from, or the proceeds from the sale of, the Ordinary Shares beneficially owned by any of the Reporting Persons.
(e) On September 14, 2015, C-Travel transferred
the beneficial ownership of 7,514,503 Ordinary Shares, which represented all of the Ordinary Shares beneficially owned by C-Travel,
to Ctrip (HK) in a private transaction and, as a result, C-Travel ceased to be the beneficial owner of more than five percent
of the Ordinary Shares of the Company.
Item 6. Contracts, Arrangements, Understandings or Relationships
with respect to Securities of the Issuer.
With respect to the Original Filing and the
Ctrip Schedule 13D, the following supersedes information previously provided in Item 6:
Item 3 and Item 4 are incorporated herein
by reference in their entirety.
To the best knowledge of the Reporting Persons,
except as provided herein, there are no other contracts, arrangements, understandings or relationships (legal or otherwise) among
the Reporting Persons and between any of the Reporting Persons and any other person with respect to any securities of the Company,
joint ventures, loan or option arrangements, puts or calls, guarantees of profits, divisions of profits or loss, or the giving
or withholding of proxies, or a pledge or contingency, the occurrence of which would give another person voting power over the
securities of the Company.
Item 7. Material to be Filed as Exhibits.
Exhibit No. |
Description |
|
|
A |
Joint Filing Agreement, dated December 7, 2015, by and among the Reporting Persons. |
|
|
B* |
Purchase Agreement between Ctrip and the Company, dated May 7, 2009. |
|
|
C* |
Registration Rights Agreement between Ctrip and the Company, dated May 7, 2009. |
|
|
D* |
Proposal Letter, dated June 11, 2015, from the Buyer Consortium to the Board. |
|
|
E |
Agreement and Plan of Merger, dated December 6, 2015, by and among Holdco, Merger Sub, the Company and, solely for certain purposes specified therein, BTG Hotels (incorporated herein by reference to Exhibit 99.2 to the Current Report on Form 6-K of the Company furnished to the Securities and Exchange Commission on December 7, 2015). |
|
|
F |
Commitment Letter, dated December 6, 2015, by and among Lender, Holdco and BTG Hotels. |
|
|
G |
English Translation of Agreement of Asset Purchase by Share Issue, dated December 6, 2015, by and among BTG Hotels, BTG, Ctrip Shanghai, Wise Kingdom, Mr. Shen, Smart Master, Mr. Sun, Peace Unity and Mr. Zong. |
|
|
H |
Support Agreement, dated December 6, 2015, by and among BTG Hotels, Holdco, Poly Victory, Ctrip Shanghai, Mr. Shen, Smart Master, Mr. Sun, Peace Unity, Mr. Zong and Wise Kingdom. |
|
|
I |
Consortium Agreement, dated December 6, 2015, by and among BTG Hotels, Poly Victory, Ctrip, Mr. Shen, Mr. Liang and Mr. Sun. |
* Previously filed.
SIGNATURE
After reasonable inquiry and to the best of
my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.
Date: December 7, 2015 |
|
|
|
|
|
BTG Hotels (Group) Co., Ltd. |
By: |
/s/ Rungang Zhang |
|
|
Name: Rungang Zhang |
|
|
Title: Chairman of Board of Directors |
|
|
|
BTG Hotels Group (HONGKONG) Holdings Co., Limited |
By: |
/s/ Rungang Zhang |
|
|
Name: Rungang Zhang |
|
|
Title: Director |
|
|
|
Beijing Tourism Group Co., Ltd. |
By: |
/s/ Qiang Duan |
|
|
Name: Qiang Duan |
|
|
Title: Chairman of Board of Directors |
|
|
|
Poly Victory Investments Limited |
By: |
/s/ Yi Liu |
|
|
Name: Yi Liu |
|
|
Title: Director |
|
|
|
Ctrip.com International, Ltd. |
By: |
/s/ Xiaofan Wang |
|
|
Name: Xiaofan Wang |
|
|
Title: Chief Financial Officer |
|
|
|
C-Travel International Limited |
By: |
/s/ Xiaofan Wang |
|
|
Name: Xiaofan Wang |
|
|
Title: Director |
|
|
|
Ctrip.com (Hong Kong) Limited |
By: |
/s/ Xiaofan Wang |
|
|
Name: Xiaofan Wang |
|
|
Title: Director |
|
|
|
Ctrip Travel Information Technology (Shanghai) Co., Ltd. |
By: |
/s/ Min Fan |
|
|
Name: Min Fan |
|
|
Title: Legal Representative |
|
|
|
James Jianzhang Liang |
By: |
/s/ James Jianzhang Liang |
Chung Lau |
By: |
/s/ Chung Lau |
|
|
|
Wise Kingdom Group Limited |
By: |
/s/ Chung Lau |
|
|
Name: Chung Lau |
|
|
Title: Director |
|
|
|
Neil Nanpeng Shen |
By: |
/s/ Neil Nanpeng Shen |
|
|
|
Smart Master International Limited |
By: |
/s/ Neil Nanpeng Shen |
|
|
Name: Neil Nanpeng Shen |
|
|
Title: Director |
|
|
|
David Jian Sun |
By: |
/s/ David Jian Sun |
|
|
|
Townbright Holdings Limited |
By: |
/s/ David Jian Sun |
|
|
Name: David Jian Sun |
|
|
Title: Director |
|
|
|
Peace Unity Investments Limited |
By: |
/s/ David Jian Sun |
|
|
Name: David Jian Sun |
|
|
Title: Director |
|
|
|
Jason Xiangxin Zong |
By: |
/s/ Jason Xiangxin Zong |
SCHEDULE A
EXECUTIVE OFFICERS AND DIRECTORS
BTG Hotels (Group) Co., Ltd.
The business address of each of the following individuals is c/o
51 Fuxingmen Avenue, Xicheng District, Beijing 100031, People’s Republic of China.
Directors:
Name |
Country of Citizenship |
|
Rungang Zhang |
People’s Republic of China |
|
Zhongpeng Duan |
People’s Republic of China |
|
Peizhi Hu |
People’s Republic of China |
|
Weidong Meng |
People’s Republic of China |
|
Hong Chen |
People’s Republic of China |
|
Yuanguang Li |
People’s Republic of China |
|
Qing Han |
People’s Republic of China |
|
Baojun Zhang |
People’s Republic of China |
|
Weidong Bao |
People’s Republic of China |
|
|
|
|
Executive Officers: |
|
|
|
|
|
Name |
Title |
Country of Citizenship |
Rungang Zhang |
General Manager |
People’s Republic of China |
Tianzhu Fu |
Executive Deputy General Manager |
People’s Republic of China |
Jun Yang |
Chief Financial Officer |
People’s Republic of China |
Kai Dong |
Chief Operating Officer |
People’s Republic of China |
Peilei Jiang |
Chief Marketing Officer |
People’s Republic of China |
BTG Hotels Group (HONGKONG) Holdings Co.,
Limited
The business address of each of the following individuals is c/o
51 Fuxingmen Avenue, Xicheng District, Beijing 100031, People’s Republic of China.
Director:
Name |
Country of Citizenship |
Rungang Zhang |
People’s Republic of China |
Executive Officers:
None.
Beijing Tourism Group Co., Ltd.
The business address of each of the following individuals is c/o
No. 10 Yabao Road, Chaoyang District, Beijing 100020, People’s Republic of China.
Directors:
Name |
Country of Citizenship |
|
Qiang Duan |
People’s Republic of China |
|
Yi Liu |
People’s Republic of China |
|
Hongtao Wei |
People’s Republic of China |
|
Tongxin Ding |
People’s Republic of China |
|
Rungang Zhang |
People’s Republic of China |
|
Xiao Chen |
People’s Republic of China |
|
Xiaoan Wei |
People’s Republic of China |
|
Maoyuan Zhu |
People’s Republic of China |
|
Yuecan Yao |
People’s Republic of China |
|
Bin Xu |
People’s Republic of China |
|
Tao Yang |
People’s Republic of China |
|
|
|
|
Executive Officers: |
|
|
|
|
|
Name |
Title |
Country of Citizenship |
Yi Liu |
General Manager |
People’s Republic of China |
Hongtao Wei |
Executive Deputy General Manager |
People’s Republic of China |
Fan Bai |
Deputy General Manager |
People’s Republic of China |
Min Bao |
Deputy General Manager |
People’s Republic of China |
Fei Gao |
Deputy General Manager |
People’s Republic of China |
Xuezhong Yu |
Vice General Manager |
People’s Republic of China |
Yonghao Guo |
Financial Director |
People’s Republic of China |
Poly Victory Investments Limited
The business address of each of the following individuals is c/o
No. 10 Yabao Road, Chaoyang District, Beijing 100020, People’s Republic of China.
Directors:
Name |
Country of Citizenship |
Yi Liu |
People’s Republic of China |
Min Bao |
People’s Republic of China |
Executive Officers:
None.
Ctrip.com International, Ltd.
The business address of each of the following individuals is c/o
968 Jin Zhong Road, Shanghai 200335, People’s Republic of China.
Directors:
Name |
Country of Citizenship |
James Jianzhang Liang |
Saint Kitts and Nevis |
Min Fan |
People’s Republic of China |
Neil Nanpeng Shen |
People’s Republic of China (Hong Kong SAR) |
Qi Ji |
Singapore |
Gabriel Li |
People’s Republic of China (Hong Kong SAR) |
JP Gan |
United States |
Robin Yanhong Li |
People’s Republic of China |
Tony Yip |
Australia |
Executive Officers:
Name |
Title |
Country of Citizenship |
James Jianzhang Liang |
Chief Executive Officer |
Saint Kitts and Nevis |
Min Fan |
President |
People’s Republic of China |
Jane Jie Sun |
Co-President and Chief Operational Officer |
Singapore |
Jenny Wenjie Wu |
Chief Strategy Officer |
People’s Republic of China (Hong Kong SAR) |
Xiaofan Wang |
Chief Financial Officer |
People’s Republic of China |
C-Travel International Limited
The business address of each of the following individuals is c/o
968 Jin Zhong Road, Shanghai 200335, People’s Republic of China.
Directors:
Name |
Country of Citizenship |
James Jianzhang Liang |
Saint Kitts and Nevis |
Min Fan |
People’s Republic of China |
Jane Jie Sun |
Singapore |
Xiaofan Wang |
People’s Republic of China |
Executive Officers:
None.
Ctrip.com (Hong Kong) Limited
The business address of each of the following individuals is c/o
968 Jin Zhong Road, Shanghai 200335, People’s Republic of China.
Directors:
Name |
Country of Citizenship |
James Jianzhang Liang |
Saint Kitts and Nevis |
Min Fan |
People’s Republic of China |
Jane Jie Sun |
Singapore |
Xiaofan Wang |
People’s Republic of China |
Neil Nanpeng Shen |
People’s Republic of China (Hong Kong SAR) |
Executive Officers:
None.
Ctrip Travel Information Technology (Shanghai)
Co., Ltd.
The business address of the following individual is c/o 968 Jin
Zhong Road, Shanghai 200335, People’s Republic of China.
Directors:
None.
Executive Officer:
Name |
Title |
Country of Citizenship |
Min Fan |
Legal Representative |
People’s Republic of China |
Smart Master International Limited
The business address of each of the following individuals is c/o
Suite 3613, 36/F, Two Pacific Place, 88 Queensway, Hong Kong.
Directors:
Name |
Country of Citizenship |
Neil Nanpeng Shen |
People’s Republic of China (Hong Kong SAR) |
Jane Jingxin Yong |
People’s Republic of China (Hong Kong SAR) |
Executive Officers:
None.
Townbright Holdings Limited
The business address of the following individual is c/o No. 124,
Caobao Road, Xuhui District, Shanghai 200235,
People’s Republic of China.
Director:
Name |
Country of Citizenship |
David Jian Sun |
People’s Republic of China |
Executive Officers:
None.
Peace Unity Investments Limited
The business address of the following individual is c/o No. 124,
Caobao Road, Xuhui District, Shanghai 200235,
People’s Republic of China.
Director:
Name |
Country of Citizenship |
David Jian Sun |
People’s Republic of China |
|
|
Executive Officers:
None.
Wise Kingdom Group Limited
The business address of the following individual is 1883 Huamu Road,
Pudong New District, Shanghai 200120, People’s Republic of China.
Director:
Name |
Country of Citizenship |
Chung Lau |
People’s Republic of China (Hong Kong SAR) |
|
|
Executive Officers:
None.
SCHEDULE B
ROLLOVER SHARES AND SHARE EXCHANGE TRANSACTION
| |
Rollover Shares of the Company | | |
BTG Hotels common
shares to be issued pursuant to the | |
Rollover Shareholder | |
Ordinary Shares | | |
Represented by ADSs | | |
Share Exchange
Agreement | |
Poly Victory Investments Limited | |
| 13,446,959 | | |
| 1,279,206 | | |
| N/A | (1) |
Ctrip Travel Information Technology (Shanghai) Co., Ltd. | |
| 14,400,765 | | |
| — | | |
| 104,901,899 | |
Neil Nanpeng Shen | |
| 375,500 | | |
| — | | |
| 2,735,317 | |
Smart Master International Limited | |
| 3,275,389 | | |
| 183,356 | | |
| 25,195,114 | |
David Jian Sun | |
| 30,138 | | |
| — | | |
| 219,539 | |
Peace Unity Investments Limited | |
| 228,806 | | |
| — | | |
| 1,666,729 | |
Jason Xiangxin Zong | |
| 74,272 | | |
| 10,000 | | |
| 613,876 | |
Wise Kingdom Group Limited | |
| — | | |
| 317,294 | | |
| 2,311,317 | |
| (1) | BTG Hotels will issue 109,218,761 common shares of BTG Hotels to BTG in exchange for all of the issued and outstanding shares
of Poly Victory held by BTG. |
Exhibit A
JOINT FILING AGREEMENT
In accordance with Rule 13d-1(k) under the Securities
Exchange Act of 1934, as amended, each of the undersigned hereby agrees to the joint filing on behalf of each of them of a statement
on Schedule 13D (including amendments thereto) with respect to the ordinary shares of Homeinns Hotel Group, including ordinary
shares represented by American depositary shares, and that this Agreement be included as an Exhibit to such joint filing. Each
of the undersigned acknowledges that each shall be responsible for the timely filing of any statement (including amendments) on
Schedule 13D, and for the completeness and accuracy of the information concerning him or it contained therein, but shall not be
responsible for the completeness and accuracy of the information concerning the other persons making such filings, except to the
extent that he or it knows or has reason to believe that such information is inaccurate.
Date: December 7, 2015
[Signature pages to follow]
BTG Hotels (Group) Co., Ltd. |
By: |
/s/ Rungang Zhang |
|
|
Name: Rungang Zhang |
|
|
Title: Chairman of Board of Directors |
|
|
|
BTG Hotels Group (HONGKONG) Holdings Co., Limited |
By: |
/s/ Rungang Zhang |
|
|
Name: Rungang Zhang |
|
|
Title: Director |
|
|
|
Beijing Tourism Group Co., Ltd. |
By: |
/s/ Qiang Duan |
|
|
Name: Qiang Duan |
|
|
Title: Chairman of Board of Directors |
|
|
|
Poly Victory Investments Limited |
By: |
/s/ Yi Liu |
|
|
Name: Yi Liu |
|
|
Title: Director |
|
|
|
Ctrip.com International, Ltd. |
By: |
/s/ Xiaofan Wang |
|
|
Name: Xiaofan Wang |
|
|
Title: Chief Financial Officer |
|
|
|
C-Travel International Limited |
By: |
/s/ Xiaofan Wang |
|
|
Name: Xiaofan Wang |
|
|
Title: Director |
|
|
|
Ctrip.com (Hong Kong) Limited |
By: |
/s/ Xiaofan Wang |
|
|
Name: Xiaofan Wang |
|
|
Title: Director |
|
|
|
Ctrip Travel Information Technology (Shanghai) Co., Ltd. |
By: |
/s/ Min Fan |
|
|
Name: Min Fan |
|
|
Title: Legal Representative |
|
|
|
James Jianzhang Liang |
By: |
/s/ James Jianzhang Liang |
|
|
|
Chung Lau |
By: |
/s/ Chung Lau |
|
|
|
Wise Kingdom Group Limited |
By: |
/s/ Chung Lau |
|
|
Name: Chung Lau |
|
|
Title: Director |
Neil Nanpeng Shen |
By: |
/s/ Neil Nanpeng Shen |
|
|
|
Smart Master International Limited |
By: |
/s/ Neil Nanpeng Shen |
|
|
Name: Neil Nanpeng Shen |
|
|
Title: Director |
|
|
|
David Jian Sun |
By: |
/s/ David Jian Sun |
|
|
|
Townbright Holdings Limited |
By: |
/s/ David Jian Sun |
|
|
Name: David Jian Sun |
|
|
Title: Director |
|
|
|
Peace Unity Investments Limited |
By: |
/s/ David Jian Sun |
|
|
Name: David Jian Sun |
|
|
Title: Director |
|
|
|
Jason Xiangxin Zong |
By: |
/s/ Jason Xiangxin Zong |
Exhibit F
Execution Version
INDUSTRIAL AND COMMERCIAL BANK OF
CHINA LIMITED, NEW YORK BRANCH
725 Fifth Avenue, 20/F
New York, NY 10022
CONFIDENTIAL
December 6, 2015
BTG Hotels (Group) Co., Ltd.
51 Fuxingmennei Avenue
Xicheng District, Beijing 100031
People’s Republic of China
BTG Hotels Group (HONGKONG) Holdings Co.,
Limited
51 Fuxingmennei Avenue
Xicheng District, Beijing 100031
People’s Republic of China
Project H
Commitment Letter
Ladies and Gentlemen:
You have advised Industrial
and Commercial Bank of China Limited acting through its New York Branch (“ICBC NY”, “we”,
“us”, the “Commitment Party or the “Initial Lender”) that
BTG Hotels Group (HONGKONG) Holdings Co., Limited, a Hong Kong company (“HoldCo”), formed at the direction
of BTG Hotels (Group) Co., Ltd. (the “Sponsor”) intends to consummate the Transactions described in the
Transaction Description attached hereto as Exhibit A (the “Transaction Description”). Capitalized
terms used but not defined herein shall have the meanings assigned to them in the Transaction Description, the Summary of Principal
Terms and Conditions attached hereto as Exhibit B (the “Term Sheet”) and the Fee Letter. This
commitment letter, the Transaction Description and the Term Sheet, are collectively referred to as the “Commitment
Letter.”
In connection with
the Transactions, ICBC NY is pleased to advise you of its commitment to provide 100% of the aggregate principal amount of the Term
Facility, subject only to the satisfaction of the conditions set forth in the section entitled “Conditions to Initial Borrowing”
in Exhibit B hereto (limited on the Closing Date as indicated therein).
It is agreed that the
Commitment Party will act as (i) the lead arranger for the Term Facility (the “Lead Arranger”), and (ii)
the administrative agent and off-shore collateral agent for the Term Facility (in such capacity, the “Administrative
Agent”).
You hereby represent
and warrant that (a) all written information and written data (such information and data, other than (i) customary financial estimates,
forecasts and other projections delivered to us by you (the “Projections”) and (ii) information of a
general economic or industry specific nature, the “Information”) (in the case of Information regarding
the Target and its subsidiaries and its and their respective businesses, to the best of your knowledge), that has been or will
be made available to the Commitment Party directly or indirectly by you, the Sponsor, the Target or by any of your or their respective
subsidiaries or representatives, in each case, on your or their behalf in connection with the transactions contemplated hereby,
is or will be, when furnished and taken as a whole, correct in all material respects and does not or will not, when furnished and
taken as a whole, contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the
statements contained therein not materially misleading in light of the circumstances under which such statements are made (after
giving effect to all supplements and updates thereto provided to the Commitment Party from time to time) and (b) the Projections
that have been or will be made available to the Commitment Party by you or by any of your subsidiaries or representatives, in each
case, on your behalf in connection with the transactions contemplated hereby have been, or will be, prepared in good faith based
upon assumptions that are believed by you to be reasonable at the time prepared and at the time the related Projections are so
furnished to the Commitment Party; it being understood that the Projections are as to future events and are not to be viewed as
facts, the Projections are subject to significant uncertainties and contingencies, many of which are beyond your control, that
no assurance can be given that any particular Projections will be realized and that actual results during the period or periods
covered by any such Projections may differ significantly from the projected results and such differences may be material. You agree
that, if at any time prior to the Closing Date, you become aware that any of the representations and warranties in the preceding
sentence would be incorrect in any material respect if the Information and the Projections were being furnished, and such representations
and warranties were being made, at such time, then you will (or, with respect to the Information and Projections relating to the
Target and its subsidiaries, will use commercially reasonable efforts to) promptly supplement the Information and the Projections
such that such representations and warranties are correct in all material respects under those circumstances (or, in the case of
the Information relating to the Target and its subsidiaries and its and their respective businesses, to the best of your knowledge,
such representations and warranties are correct in all material respects under those circumstances).
As consideration for
the commitments of the Initial Lender hereunder and for the agreement of the Lead Arranger to perform the services in arranging
the Term Facility, you agree to pay (or cause to be paid) the fees set forth in the Term Sheet and in the Fee Letter dated the
date hereof and delivered herewith with respect to the Term Facility (the “Fee Letter”). Once paid, such
fees shall not be refundable under any circumstances, except as expressly set forth herein or therein or as otherwise separately
agreed to in writing by you and us.
The commitments of
the Initial Lender hereunder to fund the Term Facility on the date of both the consummation of the Acquisition and the initial
funding under the Term Facility (the date of such consummation and funding, the “Closing Date”) and the
agreements of the Lead Arranger to perform the services described herein are subject solely to the satisfaction of the conditions
set forth in Exhibit C hereto, and upon satisfaction (or waiver by the Commitment Party) of such conditions, the initial
funding of the Term Facility shall occur.
Notwithstanding anything
to the contrary in this Commitment Letter (including each of the exhibits attached hereto), the Fee Letter, the Term Facility Documentation
or any other letter agreement or other undertaking concerning the financing of the Transactions to the contrary, (i) the only representations
and warranties the accuracy of which shall be a condition to the availability and funding of the Term Facility on the Closing Date
shall be (a) such of the representations made by, or with respect to, the Target and its subsidiaries in the Acquisition Agreement
as are material to the interests of the Lenders, but only to the extent that you (or your affiliate) have the right (taking into
account any applicable cure provisions) to terminate your (and/or its) obligations under the Acquisition Agreement or decline to
consummate the Acquisition (in each case, in accordance with the terms thereof) as a result of a breach of such representations
in the Acquisition Agreement (to such extent, the “Specified Acquisition Agreement Representations”)
and (b) the Specified Representations (as defined below) made in the Term Facility Documentation and (ii) the terms of the Term
Facility Documentation shall be in a form such that they do not impair the availability or funding of the Term Facility on the
Closing Date if the applicable conditions set forth in the conditions set forth in the section entitled “Conditions to Initial
Borrowing” in Exhibit B hereto (limited on the Closing Date as indicated therein) and in Exhibit C hereto are
satisfied (or waived by the Commitment Party) (provided that to the extent any security interest in any Collateral is not
or cannot be provided and/or perfected on the Closing Date (other than the pledge and perfection of the security interests in assets
with respect to which a lien may be perfected by the filing of a financing statement or other similar statement under the Uniform
Commercial Code or Cayman Islands laws; provided that certificated equity securities of the subsidiaries of the Borrower
will only be required to be delivered on the Closing Date to the extent received from the Target so long as you have used commercially
reasonable efforts to obtain them on the Closing Date) after your use of commercially reasonable efforts to do so or without undue
burden or expense, then the provision and/or perfection of a security interest in such Collateral shall not constitute a condition
precedent to the availability of the Term Facility on the Closing Date, but instead shall be required to be delivered after the
Closing Date pursuant to arrangements and timing to be mutually agreed by the Administrative Agent and the Borrower acting reasonably,
but no later than (i) five Business Days (to be defined under the Term Facility Documentation) after the Closing Date with respect
to certificated equity securities of subsidiaries of the Borrower and (ii) otherwise, 90 days after the Closing Date (in each case,
or such longer period as may be agreed by the Administrative Agent and the Borrower acting reasonably). For purposes hereof, “Specified
Representations” means, the applicable representations and warranties applicable to the Parent, the Sponsor and the
Borrower to be set forth in the Term Facility Documentation relating to organizational existence; power and authority, due authorization,
execution, delivery and enforceability, in each case, related to, the entering into, borrowing under, providing credit support
under, performance of, and granting of security interests in the Collateral pursuant to, the Term Facility Documentation; Federal
Reserve margin regulations; Patriot Act; the use of the proceeds of the Term Facility not violating the Patriot Act, OFAC or FCPA;
the Investment Company Act; the incurrence of the loans to be made under the Term Facility and the provision of the Keepwell Agreement,
in each case under the Term Facility, and the granting of the security interests in the Collateral to secure the Term Facility,
and the entering into of the Term Facility Documentation, do not conflict with the organizational documents of the Sponsor or the
Borrower; and, subject to the proviso in clause (ii) of the immediately preceding sentence, creation, validity and perfection of
security interests in the Collateral. For the avoidance of doubt, in no event shall the Specified Representations include any representation
or warranty with respect to the Target or any of its subsidiaries. This paragraph, and the provisions herein, shall be referred
to as the “Limited Conditionality Provisions”.
To induce the Commitment
Party to enter into this Commitment Letter and the Fee Letter and to proceed with the Term Facility Documentation, you agree (a)
to indemnify and hold harmless the Commitment Party, its affiliates and the officers, directors, employees, agents, controlling
persons, advisors and other representatives of each of the foregoing and their successors and permitted assigns (each, an “Indemnified
Person”), from and against any and all losses, claims, damages and liabilities of any kind or nature and reasonable
and documented or invoiced out-of-pocket fees and expenses, joint or several, to which any such Indemnified Person may become subject
to the extent arising out of, resulting from, or in connection with any actual or threatened claim, litigation, investigation or
proceeding (including any inquiry or investigation) in connection with this Commitment Letter (including the Term Sheet), the Fee
Letter, the Transactions or any related transaction contemplated hereby or thereby, the Term Facility or any use of the proceeds
thereof (any of the foregoing, a “Proceeding”), regardless of whether any such Indemnified Person is
a party thereto, whether or not such Proceedings are brought by you, your equity holders, affiliates or creditors or any other
third person, and to promptly reimburse after receipt of a written request, each such Indemnified Person for any reasonable and
documented or invoiced out-of-pocket legal fees and expenses incurred in connection with investigating or defending any of the
foregoing by one firm of counsel for all such Indemnified Persons, taken as a whole and, if necessary, by a single firm of local
counsel in each appropriate jurisdiction (which may include a single firm of special counsel acting in multiple jurisdictions)
for all such Indemnified Persons, taken as a whole (and, in the case of an actual or perceived conflict of interest where the Indemnified
Person affected by such conflict notifies you of the existence of such conflict and thereafter retains its own counsel, by another
firm of counsel for such affected Indemnified Person) or other reasonable and documented or invoiced out-of-pocket fees and expenses
incurred in connection with investigating, responding to, or defending any of the foregoing; provided that the foregoing
indemnity will not, as to any Indemnified Person, apply to losses, claims, damages, liabilities or related expenses to the extent
that they have resulted from (i) the gross negligence, bad faith or willful misconduct of such Indemnified Person or any Related
Indemnified Person (as defined below) (as determined by a court of competent jurisdiction in a final and non-appealable decision),
(ii) a material breach of the obligations of such Indemnified Person or any Related Indemnified Person under this Commitment Letter
or the Fee Letter (as determined by a court of competent jurisdiction in a final and non-appealable decision) or (iii) any Proceeding
solely between or among Indemnified Persons not arising from any act or omission by you or any of your affiliates; provided
that the Administrative Agent and the Lead Arranger to the extent fulfilling their respective roles as an agent or arranger under
the Term Facility and in their capacities as such, shall remain indemnified in such Proceedings to the extent that none of the
exceptions set forth in any of clauses (i) or (ii) of the immediately preceding proviso applies to such person at such time and
(b) to reimburse the Commitment Party on the Closing Date (to the extent you have been provided an invoice therefor at least three
(3) Business Days prior to the Closing Date, for all reasonable and documented or invoiced out-of-pocket expenses (including but
not limited to expenses of the Commitment Party’s consultants’ fees (to the extent any such consultant has been retained
with your prior written consent (not to be unreasonably withheld or delayed)), travel expenses and reasonable fees, disbursements
and other charges of one firm of counsel to the Commitment Party, the Lead Arranger, and the Administrative Agent identified in
the Term Sheet (and, in the case of an actual or perceived conflict of interest where the Indemnified Person affected by such conflict
informs you of such conflict and thereafter retains its own counsel, of another firm of counsel for such affected Indemnified Person),
and, if necessary, of a single firm of local counsel to the Commitment Party in each appropriate jurisdiction (which may include
a single firm of special counsel acting in multiple jurisdictions) and of such other counsel retained with your prior written consent
(not to be unreasonably withheld or delayed)), in each case incurred in connection with the Term Facility and the preparation,
negotiation and enforcement of this Commitment Letter, the Fee Letter, the Term Facility Documentation and any security arrangements
in connection therewith (collectively, the “Expenses”); provided that notwithstanding the foregoing,
only one inventory appraisal and one field exam in each relevant jurisdiction shall be included in the definition of Expenses.
The foregoing provisions in this paragraph shall be superseded, in each case, to the extent covered thereby by the applicable provisions
contained in the Term Facility Documentation upon execution thereof and thereafter shall have no further force and effect. You
acknowledge that the Indemnified Persons may receive a benefit, including without limitation, a discount, credit or other accommodation,
from any of such counsel based on the fees such counsel may receive on account of their relationship with us including, without
limitation, fees paid pursuant hereto.
Notwithstanding any
other provision of this Commitment Letter, (i) no Indemnified Person shall be liable for any damages arising from the use by others
of information or other materials obtained through internet, electronic, telecommunications or other information transmission systems,
except to the extent that such damages have resulted from the gross negligence, bad faith, material breach or willful misconduct
of such Indemnified Person or any Related Indemnified Person (as determined by a court of competent jurisdiction in a final and
non-appealable decision), (ii) none of you (or any of your subsidiaries), the Target (or any of its subsidiaries) or any Indemnified
Person shall be liable for any indirect, special, punitive or consequential damages (including, without limitation, any loss of
profits, business or anticipated savings) in connection with this Commitment Letter, the Fee Letter, the Transactions (including
the Term Facility and the use of proceeds thereunder), or with respect to any activities related to the Term Facility, including
the preparation of this Commitment Letter, the Fee Letter and the Term Facility Documentation; provided that nothing in
this paragraph shall limit your indemnity and reimbursement obligations to the extent that such indirect, special, punitive or
consequential damages are included in any claim by a third party with respect to which the applicable Indemnified Person is entitled
to indemnification under the first paragraph of this Section 7; and (iii) none of you (or any of your subsidiaries), the Target
(or any of its subsidiaries) or any Indemnified Person shall be liable for any claims between or among Indemnified Persons that
do not involve any acts or omissions of the Sponsor, the Parent or the Borrower.
You shall not be liable
for any settlement of any Proceeding effected without your written consent (which consent shall not be unreasonably withheld, conditioned
or delayed), but if settled with your written consent or if there is a final and non-appealable judgment by a court of competent
jurisdiction against one or more Indemnified Persons in any such Proceeding, you agree to indemnify and hold harmless each Indemnified
Person from and against any and all losses, claims, damages, liabilities and reasonable and documented legal or other out-of-pocket
expenses by reason of such settlement or judgment in accordance with and to the extent provided in the other provisions of this
Section 7.
You shall not, without
the prior written consent of any Indemnified Person (which consent shall not be unreasonably withheld, conditioned or delayed)
(it being understood that the withholding of consent due to non-satisfaction of any of the conditions described in clauses (i),
(ii) and (iii) of this sentence shall be deemed reasonable), effect any settlement of any pending or threatened Proceedings in
respect of which indemnity could have been sought hereunder by such Indemnified Person unless such settlement (i) includes a full
and unconditional release of such Indemnified Person in form and substance reasonably satisfactory to such Indemnified Person from
all liability or claims that are the subject matter of such proceedings, (ii) does not include any statement as to or any admission
of fault, culpability, wrong doing or a failure to act by or on behalf of any Indemnified Person and (iii) contains customary confidentiality
provisions with respect to the terms of such settlement. Each Indemnified Person shall be severally obligated to refund or return
any and all amounts paid by you under this Section 7 to the extent such Indemnified Person is not entitled to payment of such amounts
in accordance with the terms hereof (as determined by a court of competent jurisdiction in a final and non-appealable judgment).
“Related
Indemnified Person” of an Indemnified Person means (1) any controlling person or any controlled affiliate of such
Indemnified Person, (2) the respective directors, officers, or employees of such Indemnified Person or any of its controlling persons
or any of its controlled affiliates and (3) the respective agents, advisors and representatives of such Indemnified Person or any
of its controlling persons or any of its controlled affiliates, in the case of this clause (3), acting at the instructions of such
Indemnified Person, controlling person or such controlled affiliate (it being understood and agreed that any agent, advisor or
representative of such Indemnified Person or any of its controlling persons or any of its controlled affiliates engaged to represent
or otherwise advise such Indemnified Person, controlling person or controlled affiliate in connection with the Transactions shall
be deemed to be acting at the instruction of such person).
| 8. | Sharing of Information, Absence of Fiduciary Relationships, Affiliate Activities. |
You acknowledge that
the Commitment Party and its affiliates may be providing debt financing, equity capital or other services (including, without limitation,
financial advisory services) to other persons in respect of which you, the Target and your and their respective subsidiaries and
affiliates may have conflicting interests regarding the transactions described herein and otherwise. The Commitment Party and its
affiliates will not use confidential information obtained from you, the Target or any of your or its subsidiaries or affiliates
by virtue of the transactions contemplated by this Commitment Letter or their other relationships with you, the Target or any of
your or its subsidiaries or affiliates in connection with the performance by them or their affiliates of services for other persons,
and the Commitment Party and its affiliates will not furnish any such information to other persons, except to the extent permitted
below. You also acknowledge that the Commitment Party and its affiliates do not have any obligation to use in connection with the
transactions contemplated by this Commitment Letter, or to furnish to you, the Target or any of your or its subsidiaries or affiliates
confidential information obtained by them from other persons.
You further acknowledge
that certain of the Commitment Party’ affiliates are full service securities firms engaged, either directly or through their
affiliates, in various activities, including securities trading, commodities trading, investment management, financing and brokerage
activities and financial planning and benefits counseling for both companies and individuals. In the ordinary course of these activities,
such affiliates may actively engage in commodities trading or trade the debt and equity securities (or related derivative securities)
and financial instruments (including bank loans and other obligations) of you (and your affiliates), the Target, the Target’s
customers or competitors and other companies which may be the subject of the arrangements contemplated by this Commitment Letter
for their own account and for the accounts of their customers and may at any time hold long and short positions in such securities.
The Commitment Party and its affiliates may also co-invest with, make direct investments in, and invest or co-invest client monies
in or with funds or other investment vehicles managed by other parties, and such funds or other investment vehicles may trade or
make investments in securities of you (and your affiliates), the Borrower, the Target or other companies which may be the subject
of the arrangements contemplated by this Commitment Letter or engage in commodities or other trading with any thereof.
The Commitment Party
and its affiliates may have economic interests that conflict with those of the Target and you and your and its respective subsidiaries
and affiliates and are under no obligation to disclose any conflicting interest to you, the Target and the Borrower and your and
their respective subsidiaries and affiliates. You agree that the Commitment Party will act under this Commitment Letter as an independent
contractor and that nothing in this Commitment Letter or the Fee Letter will be deemed to create an advisory, fiduciary or agency
relationship or fiduciary or other implied duty between such Commitment Party and its respective affiliates, on the one hand, and
you, the Borrower and the Target, your and their respective equity holders or your and their respective subsidiaries and affiliates,
on the other hand. You acknowledge and agree that (i) the transactions contemplated by this Commitment Letter and the Fee Letter
are arm’s-length commercial transactions between the Commitment Party and its affiliates, on the one hand, and you, on the
other, (ii) in connection therewith and with the process leading to such transaction the Commitment Party and its applicable affiliates
(as the case may be) is acting solely as a principal and not as agents or fiduciaries of you, the Borrower, the Target, your and
their respective management, equity holders, creditors, subsidiaries, affiliates or any other person, (iii) the Commitment Party
and its applicable affiliates (as the case may be) have not assumed an advisory or fiduciary responsibility or any other obligation
in favor of you, the Target or your or its respective affiliates with respect to the financing transactions contemplated hereby,
the exercise of the remedies with respect thereto or the process leading thereto (irrespective of whether such Commitment Party
or any of its affiliates has advised or is currently advising you, the Borrower, or the Target or any of your or their respective
affiliates on other matters) and no Commitment Party has any obligation to you, the Target, the Borrower or your or their respective
affiliates with respect to the transactions contemplated hereby except the obligations expressly set forth in this Commitment Letter
and the Fee Letter and (iv) the Commitment Party and its affiliates have not provided any legal, accounting, regulatory or tax
advice and you have consulted your own legal and financial advisors to the extent you deemed appropriate.
You further acknowledge
and agree that you are responsible for making your own independent judgment with respect to such transactions and the process leading
thereto. You agree that you will not claim that the Commitment Party or their applicable affiliates, as the case may be, have rendered
advisory services of any nature or respect, or owe a fiduciary, agency or similar duty to you or your affiliates, in connection
with such transactions or the process leading thereto.
Furthermore, without
limiting any provision set forth herein, you waive, to the fullest extent permitted by law, any claims you may have against us
or our affiliates for breach of fiduciary duty or alleged breach of fiduciary duty and agree that we and our affiliates shall have
no liability (whether direct or indirect) to you in respect of such a fiduciary claim or to any person asserting a fiduciary duty
claim on behalf of or in right of you, including your stockholders, employees or creditors.
You agree that you
will not disclose, directly or indirectly, the Fee Letter or the contents thereof or, prior to your acceptance hereof, this Commitment
Letter, the Term Sheet, the other exhibits and attachments hereto or the contents of each thereof, or the activities of any Commitment
Party pursuant hereto or thereto, to any person or entity without the prior written approval of the Lead Arranger (such approval
not to be unreasonably withheld, delayed or conditioned), except (a) to your and your affiliates’ officers, directors, employees,
agents, attorneys, accountants, advisors, controlling persons and equity holders and to actual and potential co-investors who are
informed of the confidential nature thereof, on a confidential and need-to-know basis, (b) if the Commitment Party consents in
writing to such proposed disclosure or (c) pursuant to an order of any court or administrative agency or in any pending legal,
judicial or administrative proceeding, or otherwise as required by applicable law, rule or regulation or compulsory legal process
or to the extent requested or required by governmental and/or regulatory authorities, in each case based on the reasonable advice
of your legal counsel (in which case you agree, to the extent practicable and not prohibited by applicable law, rule or regulation,
to inform us promptly thereof prior to disclosure); provided that (i) you may disclose this Commitment Letter (but not the
Fee Letter or the contents thereof) and the contents hereof to the Target, its subsidiaries and its officers, directors, employees,
agents, attorneys, accountants, advisors and controlling persons, on a confidential and need-to-know basis, (ii) you may disclose
the Commitment Letter and its contents (including the Term Sheet and other exhibits and attachments hereto) (but not the Fee Letter
or the contents thereof) in connection with any public or regulatory filing requirement relating to the Transactions, (iii) you
may disclose the aggregate fee amount contained in the Fee Letter as part of Projections, pro forma information or a generic disclosure
of aggregate sources and uses related to fee amounts related to the Transactions to the extent customary or required in offering
and marketing materials for the Term Facility or in any public or regulatory filing requirement relating to the Transactions (and
only to the extent aggregated with all other fees and expenses of the Transactions and not presented as an individual line item
unless required by applicable law, rule or regulation), and (iv) if the fee amounts payable pursuant to the Fee Letter and such
other portions as mutually agreed have been redacted in a manner reasonably agreed by us (including the portions thereof addressing
fees payable to the Commitment Party and/or the Lenders), you may disclose the Fee Letter and the contents thereof to the Target,
its subsidiaries and its officers, directors, employees, agents, attorneys, accountants, advisors and controlling persons, on a
confidential and need-to-know basis.
The Commitment Party
and its affiliates will use all non-public information provided to any of them or such affiliates by or on behalf of you hereunder
or in connection with the Acquisition and the related Transactions solely for the purpose of providing the services which are the
subject of this Commitment Letter and negotiating, evaluating and consummating the transactions contemplated hereby and shall treat
confidentially all such information and shall not publish, disclose or otherwise divulge, such information; provided that
nothing herein shall prevent such Commitment Party and its affiliates from disclosing any such information (a) pursuant to the
order of any court or administrative agency or in any pending legal, judicial or administrative proceeding, or otherwise as required
by applicable law, rule or regulation or compulsory legal process based on the reasonable advice of counsel (in which case such
Commitment Party agrees (except with respect to any audit or examination conducted by bank accountants or any governmental or regulatory
(including self-regulatory) authority exercising examination or regulatory authority), to the extent practicable and not prohibited
by applicable law, rule or regulation, to inform you promptly thereof prior to disclosure), (b) upon the request or demand of any
regulatory authority having jurisdiction, or purporting to have jurisdiction over, such Commitment Party or any of its affiliates
(in which case such Commitment Party agrees (except with respect to any audit or examination conducted by bank accountants or any
governmental or regulatory (including self-regulatory) authority exercising examination or regulatory authority), to the extent
practicable and not prohibited by applicable law, rule or regulation, to inform you promptly thereof prior to disclosure), (c)
to the extent that such information becomes publicly available other than by reason of improper disclosure by such Commitment Party
or any of its Related Parties (as defined below) in violation of any confidentiality obligations owing to you, the Target or any
of your or their respective subsidiaries, (d) to the extent that such information is or was received by such Commitment Party or
any of its Related Parties from a third party that is not, to such Commitment Party’s knowledge, subject to contractual or
fiduciary confidentiality obligations owing to you, the Target or any of your or their respective subsidiaries, (e) to the extent
that such information is independently developed by such Commitment Party or any of its Related Parties without the use of any
confidential information, (f) to such Commitment Party’s affiliates and to its and their respective directors, officers,
employees, legal counsel, independent auditors, professionals and other experts or agents who need to know such information in
connection with the Transactions and who are informed of the confidential nature of such information and who are subject to customary
confidentiality obligations and who have been advised of their obligation to keep information of this type confidential (with each
such Commitment Party, to the extent within its control, responsible for such person’s compliance with this paragraph) (such
related persons described in this clause (f), collectively, the “Related Parties”), (g) to potential
or prospective Lenders, hedge providers, participants or assignees, (h) for purposes of establishing a “due diligence”
defense, (i) to the extent you consent in writing to any specific disclosure, or (j) to the extent such information was already
in such Commitment Party’s possession prior to any duty or other understanding of confidentiality entered into in connection
with the Transactions; provided that for purposes of clause (g) above, (i) the disclosure of any such information to any
Lenders, hedge providers, participants or assignees or prospective Lenders, hedge providers, participants or assignees referred
to above shall be made subject to the acknowledgment and acceptance by such Lender, hedge provider, participant or assignee or
prospective Lender, hedge provider, participant or assignee that such information is being disseminated on a confidential basis
(on substantially the terms set forth in this paragraph or as is otherwise reasonably acceptable to you and such Commitment Party)
in accordance with customary market standards for dissemination of such type of information, which shall in any event require “click
through” or other affirmative actions on the part of recipient to access such information and (ii) no such disclosure shall
be made by such Commitment Party to any person that is at such time any prospective Lender without your prior written consent.
In the event that the Term Facility are funded, the Commitment Party’s and its affiliates’, if any, obligations under
this paragraph shall terminate automatically and be superseded by the confidentiality provisions in the Term Facility Documentation
upon the initial funding thereunder to the extent that such provisions are binding on such Commitment Party.
The confidentiality
provisions set forth in this Section 9 shall survive the termination of this Commitment Letter and (other than your obligations
with respect to the Fee Letter) shall expire and shall be of no further effect after the second anniversary of the date hereof.
This Commitment Letter
and the commitments hereunder shall not be assignable by any party hereto without the prior written consent of each other party
hereto (such consent not to be unreasonably withheld, conditioned or delayed) (and any attempted assignment without such consent
shall be null and void). This Commitment Letter and the commitments hereunder are intended to be solely for the benefit of the
parties hereto (and Indemnified Persons) and do not and are not intended to confer any benefits upon, or create any rights in favor
of, any person other than the parties hereto (and Indemnified Persons to the extent expressly set forth herein). Subject to the
limitations set forth in Section 3 above, the Commitment Party reserves the right to employ the services of its respective affiliates
or branches in providing services contemplated hereby and to allocate, in whole or in part, to their affiliates or branches certain
fees payable to such Commitment Party in such manner as such Commitment Party and its respective affiliates or branches may agree
in their sole discretion and, to the extent so employed, such affiliates and branches shall be entitled to the benefits and protections
afforded to, and subject to the provisions governing the conduct of, such Commitment Party hereunder. This Commitment Letter may
not be amended or any provision hereof waived or modified except by an instrument in writing signed by each of the Commitment Party
and you. This Commitment Letter may be executed in any number of counterparts, each of which shall be deemed an original and all
of which, when taken together, shall constitute one agreement. Delivery of an executed counterpart of a signature page of this
Commitment Letter by facsimile transmission or other electronic transmission (e.g., a “pdf” or “tiff”)
shall be effective as delivery of a manually executed counterpart hereof. This Commitment Letter (including the exhibits hereto),
together with the Fee Letter, (i) are the only agreements that have been entered into among the parties hereto with respect to
the Term Facility and (ii) supersede all prior understandings, whether written or oral, among us with respect to the Term Facility
and sets forth the entire understanding of the parties hereto with respect thereto. THIS COMMITMENT LETTER, AND ANY CLAIM, CONTROVERSY
OR DISPUTE ARISING UNDER, OR RELATED TO, THIS COMMITMENT LETTER (INCLUDING, WITHOUT LIMITATION, ANY CLAIMS SOUNDING IN CONTRACT
LAW OR TORT LAW ARISING OUT OF THE SUBJECT MATTER HEREOF) SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE
STATE OF NEW YORK.
Each of the parties
hereto agrees that this Commitment Letter is a binding and enforceable agreement with respect to the subject matter contained herein,
including an agreement to negotiate in good faith the Term Facility Documentation by the parties hereto in a manner consistent
with this Commitment Letter, it being acknowledged and agreed that the commitments provided hereunder are subject to conditions
precedent as provided herein.
EACH OF THE PARTIES
HERETO IRREVOCABLY WAIVES THE RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING, CLAIM OR COUNTERCLAIM BROUGHT BY OR ON BEHALF OF
ANY PARTY RELATED TO OR ARISING OUT OF THIS COMMITMENT LETTER OR THE FEE LETTER OR THE PERFORMANCE OF SERVICES HEREUNDER OR THEREUNDER.
Each of the parties
hereto hereby irrevocably and unconditionally (a) submits, for itself and its property, to the exclusive jurisdiction of any New
York State court or Federal court of the United States of America sitting in New York County in the State of New York, and any
appellate court from any thereof, in any action or proceeding arising out of or relating to this Commitment Letter, the Fee Letter
or the transactions contemplated hereby or thereby, or for recognition or enforcement of any judgment, and agrees that all claims
in respect of any such action or proceeding shall be heard and determined in such New York State court or, to the extent permitted
by law, in such Federal court, (b) waives, to the fullest extent it may legally and effectively do so, any objection which it may
now or hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating to this Commitment Letter,
the Fee Letter or the transactions contemplated hereby or thereby in any New York State or in any such Federal court, (c) waives,
to the fullest extent permitted by law, the defense of an inconvenient forum to the maintenance of such action or proceeding in
any such court and (d) agrees that a final judgment in any such suit, action or proceeding shall be conclusive and may be enforced
in other jurisdictions by suit on the judgment or in any other manner provided by law. Each of the parties hereto agrees that service
of process, summons, notice or document by registered mail addressed to you or us at the addresses set forth above shall be effective
service of process for any suit, action or proceeding brought in any such court.
We hereby notify you
that pursuant to the requirements of the USA PATRIOT Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001) (the “PATRIOT
Act”), we and each of the Lenders may be required to obtain, verify and record information that identifies the Borrower
and its affiliates, which information may include their names, addresses, tax identification numbers and other information that
will allow each of us to identify the Borrower, the Sponsor and the Parent in accordance with the PATRIOT Act. This notice is given
in accordance with the requirements of the PATRIOT Act and is effective for each of us and the Lenders. You hereby acknowledge
and agree that the Lead Arranger shall be permitted to share any and all such information with the Lenders.
The indemnification,
compensation, reimbursement, jurisdiction, governing law, venue, waiver of jury trial and confidentiality provisions contained
herein and in the Fee Letter and the provisions of Section 8 of this Commitment Letter shall remain in full force and effect regardless
of whether the Term Facilities Documentation shall be executed and delivered and notwithstanding the termination or expiration
of this Commitment Letter or the Initial Lender’ commitments hereunder; provided that your obligations under this
Commitment Letter (except as specifically set forth in the third through seventh paragraphs of Section 3 and the penultimate sentence
of Section 4, and other than your obligations with respect to the confidentiality of the Fee Letter and the contents thereof and
your obligations to pay the unpaid Underwriting Fee pursuant to the Fee Letter) shall automatically terminate and be superseded
by the provisions of the Term Facility Documentation upon the initial funding thereunder, and you shall automatically be released
from all liability in connection therewith at such time. You may terminate this Commitment Letter and/or the Initial Lender’s
commitments with respect to any of the Term Facility (or any portion thereof) at any time subject to the provisions of the preceding
sentence (any such commitment termination shall reduce the commitments of each Initial Lender on a pro rata basis based on their
respective commitments to the Term Facility as of the date hereof).
Section headings used
herein are for convenience of reference only and are not to affect the construction of, or to be taken into consideration in interpreting,
this Commitment Letter.
If the foregoing correctly
sets forth our agreement, please indicate your acceptance of the terms of this Commitment Letter and of the Fee Letter by returning
to the Commitment Party (or its legal counsel) executed counterparts hereof and of the Fee Letter not later than 11:59 p.m., New
York City time, on December 6, 2015. The Initial Lender’s commitments and the obligations of the Commitment Party hereunder
will expire at such time in the event that the Commitment Party (or their legal counsel) have not received such executed counterparts
in accordance with the immediately preceding sentence. If you do so execute and deliver to us this Commitment Letter and the Fee
Letter at or prior to such time, we agree to hold our commitment to provide the Term Facility and our other undertakings in connection
therewith available for you until the earliest of (i) the end of a nine (9) months period starting from the date on which you execute
this Commitment Letter, (ii) after execution of the Acquisition Agreement and prior to the consummation of the Transactions, the
termination of the Acquisition Agreement by you in a signed writing in accordance with its terms (or your written confirmation
or public announcement thereof), (iii) the consummation of the Acquisition without the funding of the Term Facility and (iv) 11:59
p.m., New York City time, on the date that is five business days after the Termination Date (as defined in the Acquisition Agreement
as of the date hereof) (such earliest time, the “Expiration Date”). Upon the occurrence of any of the
events referred to in the preceding sentence, this Commitment Letter and the commitments of the Commitment Party hereunder and
the agreement of the Commitment Party to provide the services described herein shall automatically terminate unless the Commitment
Party shall, in their sole discretion, agree to an extension in writing.
[Remainder of this page intentionally
left blank]
We are pleased to have
been given the opportunity to assist you in connection with the financing for the Transactions.
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Very truly yours, |
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INDUSTRIAL AND COMMERCIAL BANK OF CHINA LIMITED, NEW YORK BRANCH |
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By: |
/s/ Yuqiang Xiao |
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Name: |
Yuqiang Xiao |
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Title: |
General Manager |
ICBC – Project Harmony – Commitment
Letter
Accepted and agreed to as of the date
first above written:
BTG HOTELS (GROUP) CO., LTD.
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By: |
/s/ Rungang Zhang |
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Name: |
Rungang Zhang |
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Title: |
Chairman of Board of Directors |
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BTG HOTELS GROUP (HONGKONG) HOLDINGS CO., LIMITED |
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By: |
/s/ Rungang Zhang |
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Name: |
Rungang Zhang |
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Title: |
Director |
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ICBC – Project Harmony – Commitment
Letter
EXHIBIT A
Project H
Transaction Description
Capitalized terms used
but not defined in this Exhibit A shall have the meanings set forth in the other Exhibits to the Commitment Letter (the “Commitment
Letter”) to which this Exhibit A is attached or in the Commitment Letter. In the case of any such capitalized
term that is subject to multiple and differing definitions, the appropriate meaning thereof in this Exhibit A shall be determined
by reference to the context in which it is used.
BTG Hotels Group (HONGKONG)
Holdings Co., Limited, a company newly organized under the laws of Hong Kong (“HoldCo”) at the direction
of BTG Hotels (Group) Co., Ltd. (the “Sponsor”), intends to acquire (the “Acquisition”),
directly or indirectly through a wholly-owned subsidiary, all of the equity securities of the entity previously identified to us
and code-named “H” (the “Target”) other than those held by certain equity holders (the “Rollover
Shareholders”) as set forth in Appendix I to the Acquisition Agreement (as defined below), from the public equity
holders thereof (collectively, the “Sellers”). HoldCo intends to consummate the Acquisition pursuant
to the Agreement and Plan of Merger, dated on or about the date hereof (together with all exhibits, schedules and other disclosure
letters thereto, collectively, as amended, the “Acquisition Agreement”) by and among HoldCo, BTG Hotels
Group (CAYMAN) Holding Co., Ltd. (“Merger Sub”), a newly formed wholly-owned direct subsidiary of HoldCo,
the Target and, solely for the purposes specified therein, BTG Hotels (Group) Co., Ltd. pursuant to which Merger Sub will merge
with and into the Target, with the Target being the surviving entity, the Sellers will receive cash in exchange for a majority
of the issued and outstanding equity interests (and, for the avoidance of doubt, excluding those held by the Rollover Shareholders)
in the Target (collectively, the “Acquisition Consideration”) and the HoldCo will, after giving effect
to the Acquisition, become the majority shareholder of the Target.
In connection with the
foregoing, it is intended that:
| a) | HoldCo will obtain up to $1.2 billion under a senior secured term loan facility (the “Term
Facility”) described in Exhibit B to the Commitment Letter; and |
| d) | The proceeds of the Term Facility will be applied solely (i) to pay the Acquisition Consideration
and (ii) to pay the fees and expenses incurred in connection with the Transactions (such fees and expenses, the “Transaction
Costs”) (the amounts set forth in clauses (i) and (ii) above, collectively, the “Acquisition Funds”). |
The transactions described
above (including the payment of Transaction Costs) are collectively referred to herein as the “Transactions”.
EXHIBIT B
Project H
$1.2 Billion Senior Secured Term Loan Facility
Summary of Principal Terms and Conditions1
Borrower: |
HoldCo (the “Borrower”). |
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Parent |
Beijing Tourism Group Co., Ltd. (the “Parent”) |
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Transactions: |
As set forth in Exhibit A to the Commitment Letter. |
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Administrative Agent and Collateral Agents: |
ICBC NY will act as the administrative agent (the “Administrative Agent”) and off-shore collateral agent for the Lenders, and will perform the duties customarily associated with such roles. |
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Lead Arranger: |
The Commitment Party will act as the lead arranger (the “Lead Arranger”) for the Term Facility and will perform the duties customarily associated with such roles. |
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Documentation Agent: |
The Commitment Party will act as the documentation agent for the Term Facility and will perform the duties customarily associated with such role. |
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Term Facility: |
A senior secured term loan facility in an aggregate principal amount of up to $1.2 billion (the “Term Facility”). The loans under the Term Facility are referred to as the “Term Loans”. The Initial Lender and any other lenders under the Term Facility are referred to as the “Lenders”. |
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Purpose: |
The proceeds of borrowings under the Term Facility will be used by the Borrower on the Closing Date, together with the proceeds from the equity contribution to the Borrower, solely to pay the Acquisition Funds (including at the Borrower’s election, to fund any upfront fees required in the Fee Letter). |
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Availability:
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The full amount of the Term Facility must be drawn in a single drawing on the Closing Date which shall not be later than the Termination Date defined in the Acquisition Agreement. Amounts borrowed under the Term Facility that are repaid or prepaid may not be reborrowed. |
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Interest Rates
and Fees: |
As set forth on Annex I hereto. |
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Default Rate: |
During the continuance of an event of default, with respect to overdue principal, at the applicable interest rate plus 2% per annum, and with respect to any other overdue amount (including overdue interest), at the prime rate of the Administrative Agent plus 2% per annum, which, in each case, shall be payable on demand. |
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Final Maturity
and Amortization: |
The Term Facility will mature on the date that is one (1) year after the Closing Date and its then outstanding aggregate principal amount will be payable on the maturity date. |
1
All capitalized terms used but not defined herein shall have the meaning given them in the Commitment Letter to which this Term
Facility Term Sheet is attached, including Exhibits A and C thereto.
Credit Support |
Subject to the Limited Conditionality Provisions, all the Secured Obligations will enjoy the benefit of a Keepwell and Liquidity Support Agreement (the “Keepwell Agreement”) delivered by the Parent. |
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Security: |
Subject to the limitations set forth below in this section and the Limited Conditionality Provisions, all obligations of the Borrower under the Term Facility (collectively, the “Secured Obligations”) will be secured by a perfected first priority pledges of all the equity interests held by BTG Hotels (Group) Co., Ltd. directly or indirectly in the Target (including the Target as the surviving entity of the merger with the Merger Sub) (the “Collateral”) on or as expeditiously as possible after the Closing Date in favor of ICBC NY as Offshore Collateral Agent for the benefit of the Lenders. The pledges of and security interests in and mortgages of the Collateral granted by the Borrower and Sponsor shall secure the Secured Obligations. |
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Mandatory Prepayments: |
Subject to customary mandatory prepayments provisions to be triggered by profits distributions by Borrower or its subsidiaries, issuances of debt obligations or equity securities by Borrower or its subsidiaries, and events related to disposal of assets of Borrower or its subsidiaries (to be defined in the Term Facility Documentation), with exceptions to be agreed in the Term Facility Documentation. |
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Mandatory prepayments shall be applied, without premium or penalty, subject to reimbursement of the Lenders’ redeployment costs in the case of a prepayment of Adjusted LIBOR borrowings other than on the last day of the relevant interest period. |
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Voluntary Prepayments: |
Voluntary prepayments of borrowings under the Term Facility will be permitted at any time in minimum principal amounts to be agreed, subject to reimbursement of the Lenders’ redeployment costs in the case of a prepayment of Adjusted LIBOR borrowings other than on the last day of the relevant interest period, without premium or penalty; provided that the Borrower must give the Administrative Agent written notice no less than three (3) Business Days prior to the requested prepayment date and the amount of each voluntary prepayment must be no less than $5 million and in integral multiples of $1 million. |
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All voluntary prepayments of the Term Facility will be applied as directed by the Borrower (and absent such direction, in direct order of maturity), including to any class of extending or existing Term Loans in such order as the Borrower may designate. |
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Conditions to
Initial Borrowing: |
Subject to the Limited Conditionality Provisions set forth in the Commitment Letter, conditions precedent to the initial borrowing under the Term Facility will be subject solely to the conditions set forth in Section 6 of and Exhibit C to the Commitment Letter. |
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Term Facility Documentation: |
The definitive financing documentation for the Term Facility will be under a credit agreement and related documentation (collectively, the “Term Facility Documentation”) and shall contain the terms set forth in this Exhibit B and, to the extent any other terms are not expressly set forth in this Exhibit B, will (i) be negotiated promptly in good faith, and (ii) contain only those conditions, representations, events of default and covenants set forth in this Exhibit B and such other terms as the Borrower and the Lead Arranger shall reasonably agree; it being understood and agreed that the Term Facility Documentation shall be based on and substantially consistent with transaction documents for a comparable financing of a going private transaction involving a company publicly listed in the U.S. and shall include the related security, pledge, collateral and keepwell agreements executed and/or delivered in connection therewith. |
Representations
and Warranties: |
Limited to the following (to be applicable to the Borrower, the Target and its restricted subsidiaries only): organizational status and good standing; power and authority, due authorization, qualification, execution, delivery and enforceability of Term Facility Documentation; with respect to the execution, delivery and performance of the Term Facility Documentation, no violation of, or conflict with, material law, organizational documents or material agreements; compliance with material law (including environmental laws); litigation; margin regulations; material governmental and third party approvals with respect to the execution, delivery and performance of the Term Facility; Investment Company Act; accurate and complete disclosure; accuracy of historical financial statements (including pro forma financial statements based on historical balance sheets); since the Closing Date, no Material Adverse Effect (as defined below); taxes; insurance; ERISA; PATRIOT Act; OFAC; FCPA; subsidiaries; intellectual property; use of proceeds; status of Term Facility as “senior debt” and “designated senior debt” (if applicable); ownership of properties; creation, perfection and priority of liens and other security interests; the Acquisition Agreement containing all terms of the Acquisition; the receipt by the Administrative Agent of accurate and complete equity documents evidencing equity contribution; subject, where applicable, in the case of each of the foregoing representations and warranties, to qualifications and limitations for materiality to be provided in the Term Facility Documentation. |
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“Material Adverse Effect” shall mean any event, circumstance or condition that has had or would reasonably be expected to have a material and adverse effect on (a) the business or financial condition of Borrower and its restricted subsidiaries, taken as a whole, (b) the ability of the Sponsor, the Parent and the Borrower and its subsidiaries, taken as a whole, to perform their payment obligations under the Term Facility Documentation or (c) the rights and remedies of the Administrative Agent and the Lenders under the Term Facility Documentation. |
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Financial Covenants: |
The following financial covenants of the Target
shall be tested as of the end of each quarter, beginning from December 31, 2015:
Leverage Ratio: the ratio of all
financial indebtedness to total EBITDA shall not exceed 7.00 : 1.00.
Interest Coverage Ratio: the ratio
of total EBITDA to total interest expenses shall be not less than 12.00 : 1.00.
Consolidated Tangible Net Worth
will not at any time be less than $200 million ($200,000,000). |
Affirmative Covenants: |
Limited to the following (to be applicable to the Borrower, the Target and its restricted subsidiaries only): delivery of annual audited and quarterly unaudited consolidated financial statements (which may be prepared under GAAP as applied in the United States of America or under GAAP as applied in the People’s Republic of China) of the Target within 120 days of the end of a fiscal year ending after the Closing Date and 60 days of the end of the first three fiscal quarters of a fiscal year and, in connection with the annual financial statements, an annual audit opinion from nationally recognized auditors that is not subject to any qualification as to “going concern” or scope of the audit (other than any exception or explanatory paragraph, but not a qualification, that is expressly solely with respect to, or expressly resulting solely from, (i) an upcoming maturity date under the Term Facility occurring within one year from the time such opinion is delivered or (ii) any potential inability to satisfy a financial maintenance covenant on a future date or in a future period), annual budget reports in the form customarily prepared by the Borrower (or otherwise as provided to its equity holders) (with delivery time periods to be consistent with the delivery requirements for the audited annual financial statements), officers’ compliance certificates and other information reasonably requested by the Administrative Agent; notices of defaults, material litigation and material ERISA events (if applicable); quarterly lender calls; inspections by the Administrative Agent (subject to frequency (so long as there is no ongoing event of default) and cost reimbursement limitations); maintenance of property (subject to casualty, condemnation and normal wear and tear) and customary insurance; maintenance of existence and corporate franchises, rights and privileges; maintenance and inspection of books and records; payment of taxes and similar claims; compliance with laws and regulations (including ERISA, environmental, Patriot Act, OFAC and FCPA); additional Collateral (subject to limitations set forth under “Security” above) and related required actions; use of proceeds; changes in lines of business; changes of fiscal year; designation (and redesignation) of unrestricted subsidiaries; and further assurances on collateral matters, subject, where applicable, in the case of each of the foregoing covenants, to exceptions and qualifications to be provided in the Term Facility Documentation; the making no later than the tenth (10th) Business Day prior to each Interest Payment Date of cash deposit in a depositary account (the “Interest Reserve Account”) maintained with ICBC NY in an amount not less than the total interest and fees due and payable by the Borrower under the Term Facility on such Interest Payment Date (to be defined in the Term Facility Documentation), which deposit shall be designated for the payment and repayment of the Secured Obligations; except for any ownership interest of the Borrower held by the Parent (or any subsidiary of the Parent) pursuant to the Keepwell Agreement, the Sponsor’s direct holding of 100% of all ownership interest of the Borrower, and the Borrower’s holding of majority ownership interest of the Target. |
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Negative Covenants: |
Limited to the following (to be applicable to the Borrower, Target and its restricted subsidiaries): |
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a) limitations on the incurrence of debt (which shall permit, among other things, (i) the indebtedness under the Term Facility and any permitted refinancings thereof, (ii) non-speculative hedging arrangements, (iii) any indebtedness of the Target and its subsidiaries incurred prior to the Closing Date which remains outstanding and is permitted to remain outstanding under the Acquisition Agreement and any permitted refinancings thereof, (iv) purchase money indebtedness and capital leases in an amount to be agreed, (v) indebtedness arising from agreements providing for adjustments of purchase price or “earn outs” entered into in connection with acquisitions, (vi) other unsecured senior, senior subordinated or subordinated indebtedness subject to the consent of the Administrative Agent, (vii) indebtedness of the Borrower arising under the Keepwell Agreement when applicable and (viii) other customary exceptions); |
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b) limitations on liens, including, among other things, liens securing indebtedness pursuant clause (a)(iii) above (which shall permit, among other things, liens securing (i) the Term Facility and permitted refinancing thereof, (ii) any liens of the Target and its subsidiaries incurred prior to the Closing Date which remain outstanding and are permitted to remain outstanding under the Acquisition Agreement, (iii) the permitted refinancing to be effective pursuant to clause (a)(iii) above and in favor of a branch or a subsidiary of Industrial and Commercial Bank of China Limited, (iv) permitted purchase money indebtedness or capital leases in each case permitted to be incurred pursuant to clause (a)(iv) above, and (v) other customary exceptions; |
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c) limitations on fundamental changes (including, without limitation, the reduction of registered and issued capital of the Borrower and the Target); |
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d) limitations on asset sales (including sales of subsidiaries), sale and lease back transactions and other asset disposal (to be defined in the Term Facility Documentation), subject to materiality threshold of 5% in the aggregate of all the assets of the applicable party (which shall permit, among other things, dispositions of property for Fair Market Value (to be defined in the Term Facility Documentation) and dispositions to the extent that net cash proceeds of such disposition are reinvested in assets of the Borrower); |
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e) limitations on investments and acquisitions, which subject to (i) exception of the purchase of any equity interests in the Target from any of the Rollover Shareholders, or any other party and (ii) customary baskets to be agreed under the Term Facility Documentation; |
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f) limitations on dividends or distributions on, or redemptions of, the Borrower’s equity (which shall permit, among other things, (i) customary payments or distributions to pay the tax liabilities of any direct or indirect parent, to the extent such payments cover taxes that are attributable to the activities of the Borrower or its subsidiaries or such parent’s ownership of the Borrower or its subsidiaries and are net of any payments already made by the Borrower and its subsidiaries, (ii) payment of legal, accounting and other ordinary course corporate overhead or other operational expenses of any such parent not to exceed an amount to be agreed in any fiscal year and for the payment of franchise or similar taxes and (iii) subject to no continuing event of default, customary distributions necessary to pay advisory, refinancing, subsequent transaction and exit fees and other taxes, overhead expenses of direct and indirect parents of the Borrower attributable to the ownership of the Borrower and its subsidiaries; |
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g) limitations on prepayments or redemptions of any subordinated indebtedness for borrowed money or any indebtedness for borrowed money secured on a junior basis to the Term Facility; |
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h) limitations on negative pledge clauses; |
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i) limitations on transactions with affiliates; and |
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j) limitations on opening bank accounts. |
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Financial Definitions: |
The financial definitions in the Term Facility Documentation shall be consistent with the transaction documents for a comparable financing of a going private transaction involving a company publicly listed in the U.S. |
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Events of Default: |
Limited to the following (to be applicable to the Borrower, the Target and their restricted subsidiaries only, and to the Parent and the Sponsor only to the extent expressly set forth below) and subject to the Limited Conditionality Provisions: nonpayment of principal when due; nonpayment by the Parent of amounts under the Keepwell Agreement when due; nonpayment of interest or other amounts after a customary five business day grace period; violation of covenants (subject, in the case of affirmative covenants (other than use of proceeds, notices of default and maintenance of Borrower’s and the Target’s existence), to a thirty-day grace period); incorrectness of representations and warranties in any material respect (subject to a thirty-day grace period in the case of misrepresentations that are capable of being cured); cross default and cross acceleration to indebtedness (including of the Parent and the Sponsor) of an amount in excess of Renminbi 50,000,000 (or the dollar equivalent of such amount); bankruptcy or other similar events of the Parent, the Sponsor, the Borrower, or the Target or the Borrower’s or the Target’s significant restricted subsidiaries (with a 60 day grace period for involuntary events); monetary judgments of an amount in excess of an amount to be agreed; ERISA or similar events (if applicable); actual or asserted (in writing) invalidity of material provisions of any Term Facility Documentation or security interest in Collateral or of the Keepwell Agreement; the failure of the Parent to be the largest shareholder of the Sponsor or to hold at least 35% of the issued and outstanding equity interests of the Sponsor; material adverse change; expropriation; material litigation; and qualification of audited financial statements. |
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Voting: |
Amendments and waivers of the Term Facility Documentation will require the approval of Lenders holding more than 50% of the aggregate amount of the loans and commitments under the Term Facility (the “Required Lenders”), except that (i) the consent of each Lender directly and adversely affected thereby shall be required with respect to: (A) increases in the commitment of such Lender (it being understood that a waiver of any condition precedent or the waiver of any default, event of default or mandatory prepayment shall not constitute an extension or increase of any commitment), (B) reductions or forgiveness of principal (it being understood that a waiver of any condition precedent or the waiver of any default, event of default or mandatory prepayment or commitment reduction shall not constitute a reduction or forgiveness in principal), interest (other than a waiver of default interest), premiums or fees and (C) extensions of scheduled amortization payments or final maturity (it being understood that a waiver of any condition precedent or the waiver of any default, event of default or mandatory prepayment or commitment reduction shall not constitute an extension of any maturity date) or the date for the payment of interest, premiums or fees, (ii) the consent of 100% of the Lenders will be required with respect to (A) modifications to any of the voting percentages and (B) releases of all or substantially all of the value of the Sponsor and the Parent or releases of all or substantially all of the Collateral and (iii) customary protections for the Administrative Agent will be provided. Defaulting lenders shall not be included in the calculation of the Required Lenders. |
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The Term Facility Documentation shall contain customary provisions for replacing defaulting lenders and terminating their commitments, replacing Lenders claiming increased costs, tax gross ups and similar required indemnity payments and replacing non-consenting Lenders in connection with amendments and waivers requiring the consent of all Lenders or of all Lenders directly affected thereby so long as Lenders holding more than 50% of the aggregate amount of the Term Loans shall have consented thereto. |
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Cost and Yield Protection: |
The Term Facility Documentation will include customary tax gross-up, cost and yield protection provisions; provided that the gross-up and yield protection provisions in respect of taxes will be updated as necessary to reflect current market practice for facilities and transactions of this type. |
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Assignments and Participations: |
After the Closing Date, the Lenders will be permitted to assign loans and/or commitments under the Term Facility with the consent of the Borrower in its sole discretion. |
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Expenses and Indemnification: |
The Borrower shall pay all reasonable and documented or invoiced out-of-pocket costs and expenses of the Administrative Agent and the Commitment Party associated with their due diligence investigation and the preparation, execution and delivery, administration, amendment, modification, waiver and/or enforcement of the Term Facility Documentation (including the reasonable fees, disbursements and other charges of counsel identified herein, a single local counsel in each relevant jurisdiction or otherwise retained with the Borrower’s consent (such consent not to be unreasonably withheld, conditioned or delayed) and to consultants (to the extent retained with Borrower’s consent (such consent not to be unreasonably withheld, conditioned or delayed)). |
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The Borrower will indemnify the Administrative Agent, the Commitment Party and the Lenders and their affiliates, and the officers, directors, employees, advisors, agents, controlling persons and other representatives of the foregoing and their successors and permitted assigns (each, an “Indemnified Party”), and hold them harmless from and against any and all losses, claims, damages and liabilities of any kind or nature and the reasonable and documented or invoiced out-of-pocket fees and expenses incurred in connection with investigating or defending any of the foregoing (including the reasonable fees, disbursements and other charges of a single firm of counsel for all Indemnified Parties, taken as a whole, and, if necessary, by a single firm of local counsel in each appropriate jurisdiction (which may include a single firm of special counsel acting in multiple jurisdictions) for all Indemnified Parties taken as a whole (and, in the case of an actual or perceived conflict of interest, where the Indemnified Party(s) affected by such conflict notifies the Borrower of the existence of such conflict and thereafter retains its own counsel, by another firm of counsel for such affected indemnified person)) of any such Indemnified Party arising out of, resulting from or in connection with, any claim, litigation, investigation or other proceeding (including any inquiry or investigation of the foregoing) (regardless of whether such Indemnified Party is a party thereto or whether or not such action, claim, litigation or proceeding was brought by the Borrower, its equity holders, affiliates or creditors or any other third person) relating to the Transactions, including the financing contemplated hereby; provided that no Indemnified Party will be indemnified for any loss, claim, damage, liability, cost or expense to the extent it has resulted from (i) the gross negligence, bad faith or willful misconduct of such Indemnified Party or any Related Indemnified Person (as determined by a court of competent jurisdiction in a final and non-appealable decision), (ii) a material breach by such Indemnified Party or any Related Indemnified Person of its obligations under the Term Facility (as determined by a court of competent jurisdiction in a final and non-appealable decision) or (iii) any proceeding between and among Indemnified Parties that does not involve an act or omission by the Parent, the Sponsor, the Borrower, the Target or their restricted subsidiaries; provided that the Administrative Agent, the Lead Arranger, and any other agents, to the extent acting in their capacity as such, shall remain indemnified in respect of such proceeding, to the extent that none of the exceptions set forth in any of clauses (i) or (ii) of the immediately preceding proviso applies to such person at such time. |
Governing Law
and Forum: |
New York. |
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Counsel to the Administrative Agent and Lead Arranger: |
White & Case LLP |
ANNEX I
Interest Rates: |
Adjusted LIBOR plus 2.8%. |
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The Borrower may only elect interest periods of three months for Adjusted LIBOR borrowings. |
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Calculation of interest shall be on the basis of the actual days elapsed in a year of 360 days. |
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Interest shall be payable in arrears for loans accruing interest at a rate based on Adjusted LIBOR, at the end of each interest period and, for interest periods of greater than 3 months, every three months, and on the applicable maturity date. |
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“Adjusted LIBOR” is the London interbank offered rate for U.S. dollar deposits for a three month period equal to the applicable Interest Period appearing on the Reuters Screen LIBOR01 Page or such other screen as may be determined prior to the Closing Date (or otherwise on the Reuters screen) (“Published LIBOR”), adjusted for statutory reserve requirements for U.S. dollar liabilities. |
EXHIBIT C
Project H
Summary of Additional Conditions2
The initial borrowings
under the Term Facility shall be subject to the following conditions:
1. No
Company Material Adverse Effect (as defined in the Acquisition Agreement) shall have occurred since the date of the Acquisition
Agreement.
2. The
Acquisition shall have been consummated, or substantially simultaneously with the initial borrowings under the Term Facility, shall
be consummated, in all material respects in accordance with the terms of the Acquisition Agreement, after giving effect to any
modifications, amendments, consents or waivers by you thereto, other than those modifications, amendments, consents or waivers
that are materially adverse to the interests of the Lenders or the Commitment Party in their capacities as such, unless consented
to in writing by the Lead Arranger (such consent not to be unreasonably withheld, delayed or conditioned); provided that
(i) any reduction in the Acquisition Consideration shall not be deemed to be materially adverse to the Lenders or the Commitment
Party so long as the condition in paragraph 3 below is satisfied and (ii) any increase in the Acquisition Consideration shall not
be deemed to be materially adverse to the Lenders or the Commitment Party so long as such amount is paid for by an increase of
the equity contribution from the Sponsor to Holdco.
3. [Reserved].
4. The
Lead Arranger shall have received evidence that the Sponsor directly owns 100% of the ownership interest in the Borrower.
5. The
Lead Arranger shall have received (a) audited consolidated balance sheets of the Target and its consolidated subsidiaries as at
the end of, and related statements of operations, changes in shareholder’s equity and cash flows of the Target and its consolidated
subsidiaries for, the three most recently completed fiscal years ended at least four (4) months prior to the Closing Date prepared
in accordance with the generally applicable accounting principles in the United States and (b) an unaudited consolidated balance
sheet of the Target and its consolidated subsidiaries as at the end of, and related statements of operations, changes in shareholder’s
equity and cash flows of the Target and its consolidated subsidiaries for each subsequent fiscal quarter (other than the fourth
fiscal quarter of any fiscal year) of the Target or its consolidated subsidiaries subsequent to the last fiscal year for which
financial statements were prepared pursuant to the preceding clause (a) and ended at least 45 days before the Closing Date (in
the case of this clause (b), without footnotes) together with unaudited financial statements for the corresponding portion of the
previous year, in each case, prepared in accordance with the generally applicable accounting principles in the United States.
6. [Reserved.]
7. Subject
in all respects to the Limited Conditionality Provisions, all documents and instruments required to create and perfect the Administrative
Agent’s security interest in the Collateral in respect of the Term Facility shall have been executed and delivered and, if
applicable, be in proper form for filing.
2
All capitalized terms used but not defined herein shall have the meaning given them in the Commitment Letter to which this Exhibit C
is attached, including Exhibits A and B. In the case of any such capitalized term that is subject to multiple and
differing definitions, the appropriate meaning thereof in this Exhibit E shall be determined by reference to the context in which
it is used.
8. Subject
in all respects to the Limited Conditionality Provisions, at least two (2) business days prior to the Closing Date, the Administrative
Agent and the Lead Arranger shall have received all documentation and other information about the Borrower, the Sponsor and the
Parent, in each case that shall have been reasonably requested by the Administrative Agent or the Lead Arranger in writing at least
10 business days prior to the Closing Date and that the Administrative Agent and the Lead Arranger reasonably determine is required
by United States regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations,
including without limitation the PATRIOT Act.
9. The
closing of the Term Facility shall have occurred on or before the Expiration Date.
10. (i)
The execution and delivery by the Borrower, the Sponsor and with respect to the Keepwell Agreement, the Parent of the applicable
Term Facility Documentation (including the Keepwell Agreement by the Parent and the shares pledge agreements covering all the Collateral)
which shall, in each case, be in accordance with the terms of the Commitment Letter and the Term Sheets and subject to the Limited
Conditionality Provisions and (ii) delivery to the Lead Arranger of customary legal opinions, customary officer’s closing
certificates, organizational documents, customary evidence of authorization and good standing certificates in jurisdictions where
applicable, in each case with respect to the Borrower, the Sponsor and the Parent (in each case, to the extent applicable and other
than with respect to any Insignificant Subsidiary). "Insignificant Subsidiary" means any subsidiary of
the Target other than any such subsidiary that is a "significant subsidiary" of the Target within the meaning of Rule
405 of the Securities Act of 1933, as amended, in each case determined as of the date of the most recent annual report on Form
20-F of the Target files with the Securities and Exchange Commission.
11. All
fees required to be paid on the Closing Date pursuant to the Fee Letter and reasonable out-of-pocket expenses required to be paid
on the Closing Date pursuant to the Commitment Letter, to the extent invoiced at least three business days prior to the Closing
Date (except as otherwise reasonably agreed by the Borrower), shall, upon the initial borrowings under the Term Facility, have
been, or will be substantially simultaneously, paid (which amounts may be offset against the proceeds of the Term Facility).
12. The
Lead Arranger shall have received a customary borrowing notice.
13. The
Specified Representations and the Specified Acquisition Agreement Representations shall be accurate in all material respects (subject
to the Limited Conditionality Provisions); provided that any Specified Representations qualified by materiality shall be
accurate in all respects and any Specified Acquisition Agreement Representations shall be accurate to the extent required under
the Acquisition Agreement.
14. All
Requisite Regulatory Approvals (as defined in the Acquisition Agreement) shall have been obtained (subject to the Limited Conditionality
Provisions) and the Lender shall have received a copy of each such Requisite Regulatory Approval to the extent such Requisite Regulatory
Approval is granted in writing.
Exhibit G
The Agreement is in Chinese and this is the translation
of the Agreement.
|
|
Agreement for Assets Purchase by Share Issue |
|
among
BTG Hotels (Group) Co., Ltd.
and
Beijing Tourism Group Co., Ltd.
and
Relevant Shareholders of Homeinns Hotel
Group
December 2015
Contents
Article 1 |
Definitions |
6 |
|
|
|
Article 2 |
Structure of the Transaction |
8 |
|
|
|
Article 3 |
Price of the Target Assets and Pricing Basis |
11 |
|
|
|
Article 4 |
Employee Resettlement and Debt Disposal |
12 |
|
|
|
Article 5 |
Disclosure and Confidentiality |
12 |
|
|
|
Article 6 |
Representations and Warranties of Party A |
13 |
|
|
|
Article 7 |
Representations and Warranties of Party B and Party C |
15 |
|
|
|
Article 8 |
Liability for Default |
18 |
|
|
|
Article 9 |
Effectiveness, Amendment and Termination |
18 |
|
|
|
Article 10 |
Force Majeure |
19 |
|
|
|
Article 11 |
Tax |
20 |
|
|
|
Article 12 |
Governing Law and Dispute Resolution |
21 |
|
|
|
Article 13 |
Miscellaneous |
21 |
|
|
|
Schedule 1: Target Equity Involved in the Transaction |
23 |
Agreement
for Assets Purchase by Share Issue
This Agreement for Assets Purchase by Share
Issue is entered into in Beijing, the People’s Republic of China (hereinafter as the “PRC”) on December
6, 2015 by and among:
Party A:
BTG Hotels (Group) Co., Ltd. (hereinafter as “BTG Hotels”
or “Party A”) Registered address: No. 51 Fuxingmennei Avenue, Xicheng District, Beijing
Legal representative: Rungang Zhang
Party B:
Beijing Tourism Group Co., Ltd. (hereinafter
as “BTG Group” or “Party B”) Registered address: 3/F Kaiwei Mansion, No. 10 Yabao Road, Chaoyang
District, Beijing
Legal representative: Qiang Duan
Party C:
Party C-1: Ctrip Travel Information Technology
(Shanghai) Co., Ltd. (hereinafter as “Ctrip Shanghai”)
Correspondence address: No. 99 Fuquan Road,
Shanghai, PRC
Contact: Min Fan
Party C-2: Wise Kingdom Group Limited (hereinafter
as “Wise Kingdom”)
Correspondence address: Building 16, Sky
SOHO Building, No. 968 Jinzhong Road, Shanghai
Contact: Chung Lau
Party C-3: Nanpeng Shen
Correspondence address: Suite 3616, Two
Pacific Place, 88 Queensway, Admiralty, Hong Kong
Contact: Nanpeng Shen
Party C-4: Smart Master International Limited
(hereinafter as “Smart Master”)
Correspondence address: Suite 3616, Two
Pacific Place, 88 Queensway, Admiralty, Hong Kong
Contact: Nanpeng Shen
Party C-5: Jian Sun
Correspondence address: No. 124 Caobao
Road, Xuhui District, Shanghai, PRC
Contact: Jian Sun
Party C-6: Peace Unity Investments Limited
(hereinafter as “Peace Unity”)
Correspondence address: No. 124 Caobao
Road, Xuhui District, Shanghai, PRC
Contact: Jian Sun
Party C-7: Xiangxin Zong
Correspondence address: No. 124 Caobao
Road, Xuhui District, Shanghai
Contact: Xiangxin Zong
The parties hereto shall hereinafter be
referred to as a “Party” individually and the “Parties” collectively; Party B and Party C
shall hereinafter be referred to as the “Transferors” collectively and Party A shall also be referred to as
the “Transferee”.
WHEREAS:
| 1. | Party A is a company limited by shares established with the approval of the CSRC (as defined below)
and listed at Shanghai Stock Exchange under the stock code of 600258; |
| 2. | Party B, a limited liability company incorporated and existing under the law of the PRC, is the
controlling shareholder of Party A; |
| 3. | Ctrip Shanghai, a wholly foreign-owned enterprise incorporated and validly existing under the law
of the PRC, is wholly owned and controlled by Ctrip.com International, Ltd.; Nanpeng Shen is a citizen of Hong Kong, Smart Master
is a company incorporated and existing under the law of the British Virgin Islands and owned and controlled by Nanpeng Shen; Jian
Sun is a citizen of the PRC and Peace Unity is a company incorporated and existing under the law of the British Virgin Islands
and wholly owned by Jian Sun; Wise Kingdom is a company incorporated and existing under the law of the British Virgin Islands;
Xiangxin Zong is a citizen of the PRC; |
| 4. | Poly Victory Investments Limited, a subsidiary of Party B (hereinafter as “Poly”,
in which Party B holds the 100% equity), and Party C are shareholders of Homeinns Hotel Group, a company listed on NASDAQ (“Home
Inns”). As of the date hereof, Poly and Party C hold the equity (including equity in the form of the American depositary
shares, the same below) in Home Inns as set out in Schedule 1 hereto; and |
| 5. | The Parties unanimously agree that Party A shall purchase the 100% equity in Poly held by Party
B and the relevant equity in Home Inns held by Party C (as set out in Schedule 1 hereto) by way of non-public offering of
shares (hereinafter as the “Transaction” or the “Offering” or the “Assets Purchase
by Share Issue”). Upon the completion of the Transaction, the Target Equity originally held by Party B and Party C shall
be held by Party A. |
NOW, THEREFORE, to provide for the
rights and obligations of the Parties in the Transaction, the Parties, through negotiation on the basis of equality and
free will and in accordance with the Contract Law of the PRC, the Company Law of the PRC, the Securities Law of the PRC, the Measures
for Administration of Material Asset Reorganization of Listed Companies issued by the CSRC and applicable laws, regulations and
nominative documents, hereby enter into the following agreement with respect to matters concerning the Transaction for mutual adherence:
Article 1 Definitions
| 1.1 | Unless otherwise specified in the terms hereof or in the context, the following terms when used
herein shall have the following meanings: |
(1) |
|
Agreement |
|
means this Agreement for Assets Purchase by Share Issue (including all schedules hereto), as modified, amended or altered from time to time by the Parties by duly executed written agreements |
(2) |
|
Transaction, Non-public Offering or Assets Purchase by Share Issue |
|
means Party A’s purchase of the 100% equity in Poly held by Party B and the relevant equity (including equity in the form of the American depository shares (ADS), the same below) in Home Inns held by Party C by way of share Issue |
(3) |
|
Transferors |
|
means Party B and Party C, collectively |
(4) |
|
Target Assets/Target Equity |
|
means the 100% equity in Poly held by Party B and the equity in Home Inns to be transferred by Party C to Party A pursuant to the Transaction, as set out in Schedule 1 |
(5) |
|
Homeinns Group |
|
means Home Inns and all of its subsidiaries |
(6) |
|
Offering |
|
means the non-public offering of New Shares by Party A to Party B and Party C |
(7) |
|
New Shares |
|
means the RMB ordinary shares (“A” shares) with the par value of RMB1.00 per share to be issued by Party A to Party B and Party C on non-public basis in the Offering |
(8) |
|
Base Date |
|
means September 30, 2015 |
(9) |
|
Closing |
|
means (1) the completion of the formalities for registration on change of the Target Assets by the Parties, and (2) the completion of the formalities for registration of the Non-public Offering of shares in the Transaction by Party A with CSDC to register the shares issued in the Transaction under the names of Party B and Party C, in each case in accordance with this Agreement and the supplemental agreement hereto, if any |
(10) |
|
Closing Date |
|
means a date otherwise determined by the Parties in writing after the effectiveness hereof, on which the Closing of the Target Assets shall occur. From the Closing Date, all rights, obligations and risks in the Target Assets shall be transferred |
(11) |
|
Transitional Period |
|
means the period from the Base Date (excluding the Base Date) to the Closing Date (including the Closing Date) |
(12) |
|
CSRC |
|
means the China Securities Regulatory Commission |
(13) |
|
SSE |
|
means the Shanghai Stock Exchange |
(14) |
|
CSDC |
|
means China Securities Depository and Clearing Company Limited, Shanghai Branch |
(15) |
|
MOFCOM |
|
means the Ministry of Commerce of the PRC |
(16) |
|
BJ SASAC |
|
means the State-owned Assets Supervision and Administration Commission of Beijing Municipal People’s Government |
(17) |
|
NDRC |
|
means the National Development and Reform Commission of the PRC |
(18) |
|
BJCOC |
|
means the Beijing Municipal Commission of Commerce |
(19) |
|
Business Day |
|
means a day on which banks in the PRC are generally open for banking business, excluding Saturdays, Sundays and public holidays |
(20) |
|
Encumbrance |
|
means any mortgage, pledge, lien, security, encumbrance, property entrustment, priority, security interest, option, retention of title, beneficial right, trust or other third-party rights or claims in any nature created, ratified and/or enforceable pursuant to applicable laws |
(21) |
|
RMB |
|
means Renminbi |
(22) |
|
PRC |
|
means the People’s Republic of China, for the purpose of this Agreement only, excluding Hong Kong Special Administrative Region, Macau Special Administrative Region and Taiwan |
| 1.2 | In this Agreement, unless otherwise specified: |
| (1) | any reference to a law, regulation or relevant provisions thereof shall include subsequent interpretations,
modifications or supplements of such law, regulation or provisions, as well as any new law or regulation enacted in place of such
law or regulation and their related or subordinated rules; |
| (2) | any reference to an “Article”, “Section” or “paragraph” shall
mean an article, section or paragraph hereof; and |
| (3) | headings of the terms hereof are inserted for convenience only and shall not affect the interpretation
hereof. |
Article 2 Structure of the Transaction
| 2.1 | The Transaction is structured as follows: Party A will purchase the 100% equity in Poly held by
Party B and the equity in Home Inns held by Party C by way of Non-public Offering of shares. Upon the completion of the Transaction,
the Target Equity originally held by Party B and Party C shall be held by Party A. |
| 2.2 | The shares to be issued in the Offering shall be RMB ordinary shares traded on the domestic market
(“A” shares) with a par value of RMB1.00 per share. |
| 2.3 | The shares to be issued in the Offering shall be issued to Party B and Party C. |
| 2.4 | The Base Date for Pricing of the Offering shall be the date of announcing the resolutions of the
eighth session of the sixth board of directors of Party A. The Parties agree that the price for the Offering shall be RMB15.69/share,
which is not lower than 90% of the average trading price of Party A’s stock during the twenty (20) trading days prior to
the Base Date for Pricing and therefore conforms to the requirements of the Measures for Administration of Material Asset Reorganization
of Listed Companies. The definite issue price shall be subject to approval of Party A’s shareholders’ meeting. |
| 2.5 | The number of New Shares to be issued by Party A to the Transferors shall be calculated as follows:
number of New Shares to be issued by Party A to the Transferors = trading price of the Target Assets / issue price. After the Transferors
subscribe for the New Shares issued by Party A with the Target Assets held by them, any fraction not sufficient to exchange for
one share of the New Shares will be given to Party A at no consideration. On this basis, the number of New Shares to be issued
by Party A to the Transferors shall be: |
No. | |
Issued to | |
Number of Shares
(Common
Shares) Held in
Homeinns Hotel
Group | | |
Number of Shares to Be Issued By Party A | |
1 | |
BTG Group | |
| 14,726,165 | | |
| 109,218,761 | |
2 | |
Ctrip Shanghai | |
| 14,400,765 | | |
| 104,901,899 | |
3 | |
Wise Kingdom | |
| 317,294 | | |
| 2,311,317 | |
4 | |
Nanpeng Shen | |
| 375,500 | | |
| 2,735,317 | |
5 | |
Smart Master | |
| 3,458,745 | | |
| 25,195,114 | |
6 | |
Jian Sun | |
| 30,138 | | |
| 219,539 | |
7 | |
Peace Unity | |
| 228,806 | | |
| 1,666,729 | |
8 | |
Xiangxin Zong | |
| 84,272 | | |
| 613,876 | |
| |
Total | |
| 33,621,685 | | |
| 246,862,552 | |
The aforesaid number of shares
to be issued shall be subject to approval by Party A’s shareholders’ meeting and ratification of the CSRC, and the
definite number of shares shall be the number finally ratified by the CSRC.
| 2.6 | With an aim to facilitate the continuous and stable development of Party A after reorganization,
Party B and Party C hereby make the following undertakings with respect to the lockup period for the shares of the listed company
acquired due to the Assets Purchase by Share Issue: (1) Party B shall not transfer the shares of Party A acquired by it due to
the Assets Purchase by Share Issue within thirty-six (36) months from the date of completion of the share issue; if, during six
(6) months after the completion of the Transaction, the closing price of Party A’s stock is lower than the issue price in
twenty (20) consecutive trading days, or the closing price of Party A’s stock at the end of the six (6)-month period after
the completion of the Transaction is lower than the issue price, then the lockup period for the shares of Party A acquired by Party
B due to the Transaction shall be extended for six (6) months automatically; if the Transaction is investigated by a judicial organ
or the CSRC due to suspected false records, misrepresentations or material omissions in the information provided or disclosed,
Party B shall not transfer the shares held by it in Party A until the investigation is concluded; (2) Ctrip Shanghai shall not
transfer the shares of Party A acquired by it due to the Assets Purchase by Share Issue within thirty-six (36) months from the
date of completion of the share issue; and (3) other members of Party C shall not transfer the shares of Party A acquired by them
due to the Assets Purchase by Share Issue within twelve (12) months from the date of completion of the share issue; if at the time
of acquiring the shares of Party A issued in the Offering, they have not owned the assets used for acquiring the shares for twelve
(12) consecutive months, the shares of Party A acquired due to the Assets Purchase by Share Issue shall not be transferred within
thirty-six (36) months from the date of completion of the share issue. |
| 2.7 | Upon the completion of the Offering, any additional shares of Party A issued due to grant of bonus
shares or transfer of reserve to shares shall also be subject to the provisions of Section 2.6 hereof. |
| 2.8 | In addition to aforesaid undertakings on the lockup period, if the regulatory authorities have
additional requirements on lockup of the shares subscribed for in the Transaction, the relevant Parties shall adjust the provisions
on lockup period as required by the regulatory authorities, without further review by the board of directors or shareholders’
meeting of Party A. |
| 2.9 | The Parties agree that the Transaction shall be subject to the approval, ratification and/or record-filing
from or with the competent examination and approval authorities, including without limitation approval of BJ SASAC for the Transaction,
approval of the MOFCOM for the foreign investors’ subscription for Party A’s New Shares, the opinion of the MOFCOM
indicating no objection during the examination of the concentration of business operators in the Transaction, record-filing with
the NDRC for the overseas investment under the Transaction, record-filing with BJCOC for the overseas investment under the Transaction,
ratification of the CSRC for the Transaction and registration with CSDC in connection with the New Shares. The Parties shall be
jointly responsible for completing the formalities for applying for approvals and/or record-filing required in relation to the
Transaction. The Parties shall, from the date of formation of this Agreement, make their best efforts to promptly prepare and submit
to the examination and approval authorities all documents required for applying for approvals and/or record-filing, to facilitate
the completion of the Transaction as soon as practicable. |
| 2.10 | In order to complete the Non-public Offering, within twenty (20) Business Days from the Closing
Date of the Target Assets, Party A shall be responsible for completing the following matters, including without limitation the
capital verification involved in the Non-public Offering, the registration with SSE and CSDC of the shares to be issued in the
Non-public Offering under the name of the Transferors, the registration on change of Party A’s registered capital with the
competent authority in charge of industry and commerce, and trading of the shares to be issued in the Non-public Offering by way
of quotation on SSE. From the date when the shares issued in the Non-public Offering are registered under the name of the Transferors,
the Transferors shall lawfully own the shares subscribed for by them and enjoy the relevant shareholder’s rights. |
Article
3 Price of the Target Assets and Pricing Basis
| 3.1 | Since Home Inns is a company listed on NASDAQ, the consideration of the Transaction shall not be
based on a valuation report. By reference to the recent stock price of Homeinns Group on the secondary market, value of the brand
and sales channels, the Parties through negotiation determine that the Assets Purchase by Share Issue shall be priced in RMB and
the price of the equity of Homeinns Group involved in the Assets Purchase by Share Issue shall be USD17.90 per common share and
USD35.80 per ADS (each ADS equals to two common shares) (which is equal to RMB114.29 per common share and RMB 228.59 per ADS (equal
to two common shares) if converted at the rate of 1 USD = RMB6.3851, namely, the mid-point price of the exchange rate between USD
and RMB on December 4, 2015). On this basis, the total consideration for the Target Assets shall be RMB3.873 billion, in which
the consideration for the 100% equity in Poly shall be RMB1.714 billion and the consideration for the equity in Home Inns held
by Party C shall be RMB2.160 billion (the numbers are rounded to the second decimal place). |
| 3.2 | The Parties agree that the consideration of the Transaction will not be adjusted by any profit
or loss on the Target Assets during the period from the Base Date to the Closing Date. |
Article
4 Employee Resettlement and Debt Disposal
| 4.1 | No resettlement arrangement is required to be made in relation to employees of Poly and Home Inns
in the Transaction. |
| 4.2 | After the Transaction, Poly and Home Inns will remain as independent entities. No claim or debt
of Poly or Home Inns shall be transferred in the Transaction and Poly and Home Inns shall still enjoy or assume their existing
claims and debts in their own names after the Transaction. |
Article 5 Disclosure and Confidentiality
| 5.1 | The Parties shall perform the information disclosure obligations in relation to this Agreement
in accordance with applicable laws. |
| 5.2 | The Parties agree that from the date hereof to the lawful disclosure of the Transaction after statutory
procedures are performed in connection with the Transaction, the Parties shall strictly keep confidential the following information
or documents, other than those already disclosed as per requirement of the securities regulatory authority: |
| (1) | all information relating to this Agreement acquired by the Parties before the formation and during
the formation and performance of this Agreement, including without limitation structure of the Transaction, commercial terms (intention),
process and contents of negotiation; |
| (2) | all documents and data in connection with the matters hereunder, including without limitation any
document, material, data, contract and financial report; and |
| (3) | other information and documents of which the divulgence or disclosure may result in market rumors,
fluctuation of stock price or other extraordinary conditions. |
| 5.3 | No Party shall, without the prior written consent of the other Parties, in any way divulge or disclose
the aforesaid information or documents to any third party other than the Parties hereto. The Parties shall take necessary measures
to limit the disclosure of such information and documents to those persons engaging in the Transaction, and shall require such
persons to strictly comply with the provisions of this Article 5. |
| 5.4 | The following circumstances shall not be deemed disclosure or divulgence of information and documents: |
| (1) | the disclosed information and documents are known to the public prior to such disclosure; or |
| (2) | the disclosure is mandatorily required by laws, regulations or nominative documents, or by decisions,
orders or requirements of competent governmental authorities (such as the CSRC) or the stock exchange, or by judgments, rulings
or awards of courts or arbitration tribunals; or |
| (3) | the disclosure is made to agencies (including independent financial advisors, auditors, lawyers,
etc.) before and/or after engagement of such agencies for the purpose of formation and performance of this Agreement. |
Article
6 Representations and Warranties of Party A
Party A hereby makes the following representations
and warranties to the other Parties hereto as at the date hereof, and undertakes that each of the following representations and
warranties shall be true, accurate and complete as at the date hereof and the Closing Date:
| 6.1 | It has lawfully obtained all approvals, consents, authorizations and permits necessary for the
execution and full performance of this Agreement which may be obtained as of the date hereof, and has the lawful power and right
to execute and fully perform this Agreement. |
| 6.2 | The execution and performance of this Agreement will not violate: |
| (1) | relevant provisions of laws, regulations and competent governmental authorities of the PRC; or |
| (2) | any material commitment, agreement and contract made or entered into by it or binding upon it or
its assets. If there is any violation, it shall have obtained the written consent, permit or waiver of the counterparty or beneficiary
of such commitment, agreement and contract prior to the execution hereof. |
| 6.3 | All documents, materials and information in connection with the Transaction which have been provided
by it or will be provided by it before the completion of the Transaction to Party B, Party C and the agencies entrusted by them
are true, accurate and valid, free and clear of any false record, misrepresentation or material omission. |
| 6.4 | It will be responsible for preparing and submitting the documents necessary for examination of
the Transaction by the CSRC, SSE and other competent authorities. |
| 6.5 | It will hold board meetings and shareholders’ meetings and go through other internal decision
procedures pursuant to law, and start the procedures for applying for examination by competent authorities in a timely manner according
to actual conditions. |
| 6.6 | It will not take any act that will violate the representations and warranties under this Article
6 or affect the validity of this Agreement. |
Article
7 Representations and Warranties of Party B and Party C
Each of Party B and Party C hereby severally,
not jointly, makes the following representations and warranties to the other Parties hereto as at the date hereof, and severally,
not jointly, undertakes that each of the following representations and warranties shall be true, accurate and complete as at the
date hereof and the Closing Date (notwithstanding the foregoing, Nanpeng Shen and Smart Master shall bear the joint and several
liabilities, and Jian Sun and Peace Unity shall bear the joint and several liabilities):
| 7.1 | It has lawfully obtained all approvals, consents, authorizations and permits necessary for the
execution and full performance of this Agreement which may be obtained as of the date hereof, and has the lawful power and right
to execute and fully perform this Agreement. Party C specifically acknowledges that no approval or consent is required to be obtained
from the board of directors and shareholders’ meeting of Home Inns or from the securities regulatory authority of the United
States in connection with the Transaction. |
| 7.2 | The execution and performance of this Agreement will not violate: |
| (1) | relevant provisions of applicable laws, regulations and competent governmental authorities; or |
| (2) | any material commitment, agreement and contract made or entered into by it or binding upon it or
its assets. If there is any violation, it shall have obtained the written consent, permit or waiver of the counterparty or beneficiary
of such commitment, agreement and contract prior to the execution hereof. |
| 7.3 | All documents, materials and information in connection with the Transaction which have been provided
by it or will be provided by it before the completion of the Transaction to the other Parties and the agencies entrusted by them
are true, accurate and valid, free and clear of any false record, misrepresentation or material omission. |
| 7.4 | It has the lawful, valid and full rights to the Target Assets to be transferred and used for subscribing
for the New Shares under the Transaction, which are free and clear of any security or mortgage in favor of any third party or any
third-party interest or claim, and may be lawfully transferred to Party A pursuant to applicable laws. |
| 7.5 | It has not been subject to any criminal/administrative penalty (other than those apparently irrelevant
with the securities market) or involved in any material litigation or arbitration during the recent five years; it is not subject
to or involved in any pending or foreseeable criminal/administrative penalty or litigation or arbitration which may cause damage
to the Transaction. |
| 7.6 | It will proactively facilitate and effect the Transaction by taking the following acts: |
| (1) | to proactively execute and prepare all necessary documents in connection with the Transaction; |
| (2) | not to take any act that will violate the representations and warranties under this Article 7 or
affect the validity of this Agreement; |
| (3) | during the Transitional Period, to maintain the lawful and full ownership of the Target Assets,
so that the title to the Target Assets remains clear and complete; to protect the Target Assets held by it from judicial attachment,
freezing, pledge or any form of Encumbrance or any third-party right created in favor of any third party; to operate and manage
Home Inns in a reasonable and prudent manner; to maintain stability of the management personnel and customers of Home Inns and
ordinary operation of its business; not to take any extraordinary act which will result in diminution in value of the Target Assets,
or any act that will render Home Inns’ intangible assets or operating qualification invalid, null and void or result in the
loss of protection on such intangible assets or operating qualification; to warrant that no material adverse change will be caused
by its acts to the operating conditions of Home Inns; |
| (4) | to obtain the written consent of Party A’s board of directors if it intends to cause Homeinns
Group to implement any decision out of the ordinary course of business which may cause any material change to the Target Assets
during the Transitional Period; |
| (5) | after the execution of this Agreement, without Party A’s written consent, not to resell or
entrust the Target Assets held by it or create any third-party right (including pre-emptive right or option) over them, nor to
conduct any transactional approach with any third party or execute any memorandum, contract or understanding in connection with
the transfer, pledge, entrustment of or the creation of any Encumbrance or third-party right over the Target Assets held by it,
or execute any contract, memorandum or legal document in any form which conflicts with the transfer of the Target Assets or contains
any term prohibiting or restricting the transfer of the Target Assets; and |
| (6) | after the execution of this Agreement, to proactively facilitate all work involving it in the Transaction. |
| 7.7 | If there is any misrepresentation, misleading statement or material omission in the relevant written
information and documents in connection with the Transaction disclosed by Home Inns to the investors or provided by Hone Inns to
Party A, the Transferors shall be liable for indemnifying Party A for the losses arising therefrom in proportion to the percentage
of Home Inns’ equity held by them; if there is any misrepresentation, misleading statement or material omission in relevant
written information and documents in connection with the Transaction provided by a Transferor to Party A, such Transferor shall
be liable for indemnifying Party A for the losses arising therefrom. |
Article 8 Liability for Default
| 8.1 | If any Party fails to perform its obligations or undertakings hereunder or any representation or
warranty given by it hereunder is false or materially erroneous, except due to an Event of Force Majeure, such Party shall be deemed
in default of this Agreement. |
| 8.2 | The defaulting Party shall bear the liability for default to the non-defaulting Parties and indemnify
the non-defaulting Parties for all losses, including the reasonable cost incurred for avoiding such losses, arising from such default
in accordance with this Agreement and law. |
Article 9 Effectiveness, Amendment and
Termination
| 9.1 | This Agreement, once executed, shall be binding upon the Parties and shall become effective upon
the satisfaction of all of the following conditions: |
| (1) | This Agreement has been signed by the legal representatives of the Parties or their authorized
representatives and affixed with the company seals of the Parties (in case of a corporation); |
| (2) | The Transaction has been approved by Party A’s board of directors and shareholders’
meeting; Party B and Party C have performed the internal approval procedures or obtained necessary approvals or permits for participating
in the Transaction; |
| (3) | The Transaction has been approved by BJ SASAC; |
| (4) | Filing with the NDRC regarding the overseas investment under the Transaction; |
| (5) | Filing with the BJCOC regarding the overseas investment under the Transaction; |
| (6) | The MOFCOM has no objection during the examination of the concentration of business operators in
connection with the Transaction; |
| (7) | The MOFCOM has granted its approval for the foreign investors’ subscription for the New Shares
of Party A under the Transaction; |
| (8) | The Transaction has been approved by the CSRC; and |
| (9) | Other necessary approvals or authorizations, if any, have been obtained. |
Any amendment
to this Agreement shall be made by the Parties in a written agreement reached through negotiation.
| (1) | This Agreement may be terminated before the effectiveness hereof by agreement among the Parties
through negotiation; |
| (2) | If all of the conditions under Section 9.1 are not fully satisfied within eighteen (18) months
after the execution hereof, this Agreement shall be terminated, unless the Parties agree to extend the term hereof. |
Article 10 Force Majeure
| 10.1 | An “Event of Force Majeure” herein shall mean any event occurring after the date hereof
which is out of the reasonable control of the Party affected by force majeure and is unforeseeable, or is unavoidable and unpreventable,
even if foreseeable, and which renders such Party’s full or partial performance of this Agreement impossible or impracticable,
including without limitation flood, fire, drought, typhoon, earthquake and other acts of God, traffic accidents, strikes, commotions,
riots and wars (whether or not declared). |
| 10.2 | Any Party unable to perform or fully perform this Agreement due to an Event of Force Majeure shall
immediately notify the other Parties of such event in writing and provide details of such event and valid evidence on the reasons
for its inability to perform or fully perform this Agreement or for the extension of term of performing this Agreement within seven
(7) Business Days from the occurrence of such event. |
| 10.3 | A Party unable to perform or fully perform its obligations hereunder due to an Event of Force Majeure
shall not be deemed in default and the performance of such obligations shall be suspended during the period when the performance
of such obligations is prevented by the Event of Force Majeure. After the end of the Event of Force Majeure or elimination of its
effects, such Party shall immediately resume the performance of its obligations hereunder. If the Event of Force Majeure and its
effects last for more than thirty (30) days or more and causes any Party unable to further perform this Agreement, any Party shall
have the right to decide to terminate this Agreement. |
| 10.4 | If any adjustment to applicable laws, regulations or nominative documents after the date hereof
directly affects the performance of this Agreement or renders the performance of this Agreement impossible and no Party is at fault,
no claim shall be made against any Party for the liability for default in connection with the failure to perform after the occurrence
of such event, and the Parties may decide through negotiation whether to rescind this Agreement or extend the performance of this
Agreement based on the extent of impact on the performance of this Agreement. |
Article 11 Tax
| 11.1 | The Parties agree to bear the taxes required to be paid by them respectively in connection with
the Transaction pursuant to national laws and regulations. The Transferors agree, to the extent permitted by law, to cooperate
with Party A in the relevant tax declaration and payment to the tax authority, including assuming the obligation for the taxes
to be withheld by Party A on behalf of the Transferors as required by the tax authority, and promptly paying the full amount of
the taxes payable upon receipt of Party A’s notice to enable Party A to perform such withholding pursuant to law. |
Article 12 Governing Law and Dispute
Resolution
| 12.1 | The formation, validity, interpretation, performance of this Agreement and dispute resolution under
this Agreement shall all be governed by laws of the PRC. |
| 12.2 | All disputes, claims or controversies arising among the Parties from or in connection with this
Agreement shall first be resolved through friendly negotiation. If any dispute fails to be resolved through negotiation within
thirty (30) days from the occurrence of such dispute, any Party shall have the right to submit it to China International Economic
and Trade Arbitration Commission for arbitration in Beijing by three (3) arbitrators in accordance with the arbitration rules of
such Commission in effect then. |
| 12.3 | The arbitration award shall be final and binding upon the Parties; unless otherwise decided by
the arbitration award, the cost of arbitration shall be borne by the losing Party. |
| 12.4 | During the dispute resolution, other than the matters in dispute, the Parties shall continue to
perform the remaining terms hereof. |
Article 13 Miscellaneous
| 13.1 | If any provision of this Agreement is terminated or held invalid pursuant to law or this Agreement,
the validity of the remaining provisions hereof shall not be affected. |
| 13.2 | This Agreement constitutes the entire agreement among the Parties with respect to the relevant
matters hereunder and shall supersede any prior agreement, statement, memorandum, letter or other documents among the Parties with
respect to such matters, provided that the contents of such documents not in conflict with or expressly covered by this Agreement
shall remain applicable or valid. |
| 13.3 | Unless otherwise specified herein, no Party shall, without the prior written consent of the other
Parties, in any way transfer all or any part of its rights, interests, responsibilities or obligations hereunder. |
| 13.4 | Unless otherwise specified in laws and regulations, no failure or delay of any Party in exercising
any right or power hereunder shall operate as such Party’s waiver of such right or power. |
| 13.5 | Matters not covered by this Agreement shall be decided by the Parties in specific transaction agreements,
supplemental agreements, memorandums, Closing confirmations or other written documents otherwise reached by the Parties. Such specific
transaction agreements, supplemental agreements, memorandums, Closing confirmations or other written documents shall have the equal
legal force and effect as this Agreement. |
| 13.6 | The Parties may execute this Agreement in any number of copies and each copy, once fully executed
and confirmed, shall be an original of this Agreement, rather than a counterpart of other copies. This Agreement may be executed
by the Parties in any number of counterparts, but all counterparts together shall be one and the same fully executed instrument. |
(The remainder of this page is intentionally
left blank.)
Schedule 1: Target Equity Involved in the
Transaction
No. | |
Issued to | |
Number of Shares (Common Shares) Held in Homeinns Group | |
1 | |
BTG Group | |
| 14,726,165 | |
2 | |
Ctrip Shanghai | |
| 14,400,765 | |
3 | |
Wise Kingdom | |
| 317,294 | |
4 | |
Nanpeng Shen | |
| 375,500 | |
5 | |
Smart Master | |
| 3,458,745 | |
6 | |
Jian Sun | |
| 30,138 | |
7 | |
Peace Unity | |
| 228,806 | |
8 | |
Xiangxin Zong | |
| 84,272 | |
| |
Total | |
| 33,621,685 | |
(No body text on this page; this is the execution
page to the Agreement for Assets Purchase by Share Issue for Party A)
BTG Hotels (Group) Co., Ltd. (company seal)
Legal representative or authorized representative (signature): |
|
/s/ Rungang Zhang |
|
December 6, 2015
(No body text on this page; this is the execution
page to the Agreement for Assets Purchase by Share Issue for Party B)
Beijing Tourism Group Co., Ltd. (company seal) |
|
|
|
Legal representative or authorized representative (signature): |
|
/s/ Qiang Duan |
|
December 6, 2015
(No body text on this page; this is the execution
page to the Agreement for Assets Purchase by Share Issue for Ctrip Travel Information Technology (Shanghai) Co., Ltd. of Party
C)
Ctrip Travel Information Technology (Shanghai)
Co., Ltd. (company seal)
Legal representative or authorized representative (signature): |
|
/s/ Xiaofan Wang |
|
December 6, 2015
(No body text on this page; this is the execution
page to the Agreement for Assets Purchase by Share Issue for Wise Kingdom Group Limited of Party C)
Wise Kingdom Group Limited (company seal)
Legal representative or authorized representative (signature): |
|
/s/ Chung Lau |
|
December 6, 2015
(No body text on this page; this is the execution
page to the Agreement for Assets Purchase by Share Issue for Nanpeng Shen of Party C)
Nanpeng Shen (signature): |
/s/ Nanpeng Shen |
|
December 6, 2015
(No body text on this page; this is the execution
page to the Agreement for Assets Purchase by Share Issue for Smart Master International Limited of Party C)
Smart Master International Limited (company
seal)
Legal representative or authorized representative (signature): |
|
/s/ Jingxin Yong |
|
December 6, 2015
(No body text on this page; this is the execution
page to the Agreement for Assets Purchase by Share Issue for Jian Sun of Party C)
Jian Sun (signature): |
/s/ Jian Sun |
|
December 6, 2015
(No body text on this page; this is the execution
page to the Agreement for Assets Purchase by Share Issue for Peace Unity Investments Limited of Party C)
Peace Unity Investments Limited (company seal)
Legal representative or authorized representative (signature): |
|
/s/ Jian Sun |
|
December 6, 2015
(No body text on this page; this is the execution
page to the Agreement for Assets Purchase by Share Issue for Xiangxin Zong of Party C)
Xiangxin Zong (signature): |
/s/ Xiangxin Zong |
|
December 6, 2015
Exhibit H
EXECUTION VERSION
SUPPORT AGREEMENT
This SUPPORT AGREEMENT (this “Agreement”)
is entered into as of December 6, 2015 by and among BTG Hotels (Group) Co., Ltd., a joint stock company established and existing
under the laws of the People’s Republic of China (“Parent”), BTG Hotels Group (HONGKONG) Holdings Co.,
Limited (“Holdco”), a company incorporated under
the laws of the Hong Kong Special Administrative Region and a wholly-owned subsidiary of Parent, and certain shareholders of Homeinns
Hotel Group, an exempted company with limited liability incorporated under the laws of the Cayman Islands (the “Company”)
listed on Schedule A hereto (each, a “Shareholder” and collectively, the “Shareholders”).
Capitalized terms used but not defined herein shall have the meanings ascribed to such terms in the Merger Agreement (as defined
below).
WHEREAS, Holdco, BTG Hotels Group (CAYMAN) Holding
Co., Ltd (“Merger Sub”), an exempted company
with limited liability incorporated under the laws of the Cayman Islands and a wholly-owned subsidiary of Holdco, the Company and,
solely for specific purposes stated therein, Parent have, concurrently with the execution of this Agreement, entered into an Agreement
and Plan of Merger, dated as of the date hereof (as may be amended, supplemented or otherwise modified from time to time, the “Merger
Agreement”), which provides, among other things, for the merger of Merger Sub with and into the Company (the “Merger”),
with the Company continuing as the surviving company (the “Surviving Company”), upon the terms and subject
to the conditions set forth in the Merger Agreement;
WHEREAS, as of the date hereof, each Shareholder
is the owner of record of certain ordinary shares, par value US$0.005 per share, of the Company (the “Shares”)
(including Shares represented by American Depositary Shares (“ADSs”), each representing two Shares), including,
without limitation, the Shares set forth in the column titled “Rollover Shares” opposite such Shareholder’s
name on Schedule A hereto (such Shares, together with any other Shares beneficially owned by such Shareholder as of the
date hereof or acquired (whether beneficially or of record) by such Shareholder prior to the earlier of the Effective Time and
the termination of all of the Shareholder’s obligations under this Agreement, including any Shares 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, being collectively referred to herein as the “Securities”);
WHEREAS, in connection with the consummation
of the Merger, each Shareholder agrees, upon the terms and subject to the conditions herein, (a) to vote their Securities in favor
of the authorization and approval of the Merger Agreement, the Plan of Merger and the Transactions, (b) to receive no Per Share
Merger Consideration or Per ADS Merger Consideration with respect to any of the Rollover Shares and (c) that each Rollover Share
shall be converted into one ordinary share of the Surviving Company at the Effective Time;
WHEREAS, in order to induce Holdco and Merger
Sub to enter into the Merger Agreement and consummate the transactions contemplated thereby, including the Merger, the Shareholders
are entering into this Agreement;
WHEREAS, the Shareholders acknowledge that Holdco
and Merger Sub are entering into the Merger Agreement in reliance on the representations, warranties, covenants and other agreements
of the Shareholders set forth in this Agreement; and
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 agree as follows:
ARTICLE I
VOTING; GRANT AND APPOINTMENT OF PROXY
Section 1.1 Voting. From
and after the date hereof until the earlier of the Closing and the termination of the Merger Agreement pursuant to and
in compliance with the terms therein (such earlier time, the “Expiration Time”), each Shareholder irrevocably
and unconditionally hereby agrees that at the Company 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 postponement thereof) , or in connection with any written resolution of the Company’s shareholders,
such Shareholder shall (i) cause its, his or her representative(s) to appear at such meeting or otherwise cause its, his or
her 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 or written resolution, if applicable) all of such Shareholder’s Securities,
(a) for
approval of the Merger Agreement, the Plan of Merger and the Transactions contemplated by the Merger Agreement;
(b) against
any Competing Transaction or any other transaction, proposal, agreement or action made in opposition to approval of the Merger
Agreement or in competition or inconsistent with the Merger and the other transactions contemplated by the Merger Agreement;
(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 Merger or any of the other
Transactions contemplated by the Merger Agreement or this Agreement or the performance by such Shareholder of its, his or her obligations
under this Agreement, including, without limitation: (i) any extraordinary corporate transaction, such as a scheme of arrangement,
merger, consolidation or other business combination involving the Company or any of its, his or her Subsidiaries (other than the
Merger); (ii) a sale, lease or transfer of a material amount of assets of the Company or any Subsidiary or a reorganization,
recapitalization or liquidation of the Company or any Subsidiary; (iii) an election of new members to the board of directors
of the Company, other than nominees to the board of directors of the Company who are serving as directors of the Company on the
date of this Agreement or as otherwise provided in the Merger Agreement; (iv) any material change in the present capitalization
or dividend policy of the Company or any amendment or other change to the Company’s memorandum or articles of association,
except if approved in writing by Parent; or (v) any other action that would require the consent of Parent pursuant to the
Merger Agreement, except if approved in writing by Parent;
(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 Shareholder
contained in this Agreement;
(e) in
favor of any adjournment or postponement of the Company Shareholders’ Meeting as may be reasonably requested by Parent; and
(f) in
favor of any other matter necessary to effect the transactions contemplated by the Merger Agreement.
Section 1.2 Grant
of Irrevocable Proxy; Appointment of Proxy.
(a) Each
Shareholder hereby irrevocably appoints Parent and any person designated by Parent thereof as its, his or her proxy and attorney-in-fact
(with full power of substitution), to vote or cause to be voted (including by proxy or written resolution, if applicable) the Securities
(other than any Shares represented by ADSs beneficially owned as of the record date to be established by the Company for the Company
Shareholders’ Meeting) in accordance with Section 1.1 above at the Company Shareholders’ Meeting
or other annual or special meeting of the shareholders of the Company, however called, including any adjournment or postponement
thereof, at which any of the matters described in Section 1.1 above is to be considered. Each Shareholder represents that
all proxies, powers of attorney, instructions or other requests given by such Shareholder prior to the execution of this Agreement
in respect of the voting of such Shareholder’s Securities, if any, are not irrevocable and each Shareholder hereby revokes
(or causes to be revoked) any and all previous proxies, powers of attorney, instructions or other requests with respect to such
Shareholder’s Securities. Each Shareholder shall take such further action or execute such other instruments as may be necessary
to effectuate the intent of this proxy.
(b) Each
Shareholder affirms that the irrevocable proxy set forth in this Section 1.2 is given in connection with the execution
of the Merger Agreement, and that such irrevocable proxy is given to secure the performance of the duties of such Shareholder under
this Agreement. Each Shareholder further affirms that the irrevocable proxy is coupled with an interest and, except as set forth
in this Section 1.2, is intended to be irrevocable prior to the Expiration Time. If for any reason the proxy granted
herein is not irrevocable, then each Shareholder agrees to vote such Shareholder’s Securities in accordance with Section 1.1
above prior to the Expiration Time. The parties agree that the foregoing is a voting agreement.
Section 1.3 Restrictions
on Transfers. Except as provided for in Article III below or pursuant to the Merger Agreement,
each Shareholder hereby agrees that, from the date hereof until the Expiration Time, such Shareholder shall not, directly or indirectly,
(a) 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, 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 involving any Securities and (i) has,
or would reasonably be expected to have, the effect of reducing or limiting such Shareholder’s economic interest in such
Securities and/or (ii) grants a third party the right to vote or direct the voting of such Securities (any such transaction, a
“Derivative Transaction”), (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) knowingly take any action
that would make any representation or warranty of such Shareholder set forth in this Agreement untrue or incorrect or have the
effect of preventing, disabling, or delaying such Shareholder from performing any of its, his or her 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).
ARTICLE II
NO SOLICITATION
Section 2.1 Restricted
Activities. Prior to the Expiration Time, each Shareholder, solely in its, his or her capacity as a
shareholder of the Company, shall not, and shall cause such Shareholder’s officers, directors, employees, agents, advisors
and other representatives (in each case, acting in their capacity as such to such Shareholder (the “Shareholder’s
Representatives”)) not to, directly or indirectly: (a) initiate, solicit, propose, encourage or knowingly facilitate
(including by providing information) any inquiries, proposals or offers with respect to, or the making or completion of, a Competing
Transaction or offer that would reasonably be expected to lead to a Competing Transaction, (b) engage, continue or participate
in any negotiations concerning, or provide or cause to be provided any non-public information or data relating to the Company or
any Subsidiary in connection with, or have any discussions (other than to state that they are not permitted to have discussions)
with any person relating to, an actual or proposed Competing Transaction or offer that would reasonably be expected to lead to
a Competing Transaction, or otherwise knowingly facilitate any effort or attempt to make or implement a Competing Transaction or
offer that would reasonably be expected to lead to a Competing Transaction, (c) to the extent not required by applicable law,
grant any waiver, amendment or release under any standstill or confidentiality agreement or Takeover Statutes, or otherwise knowingly
facilitate any effort or attempt by any person to make a Competing Transaction, (d) approve, endorse or recommend, or propose
to approve, endorse or recommend, or execute or enter into, any letter of intent, agreement in principle, merger agreement, acquisition
agreement, option agreement or other similar agreement relating to any Competing Transaction or offer that would reasonably be
expected to lead to a Competing Transaction, or (e) resolve or propose or agree to do any of the foregoing.
Section 2.2 Notification. Each
Shareholder, solely in its, his or her capacity as a shareholder of the Company, shall and shall cause such Shareholder’s
Representatives to, immediately cease and cause to be terminated any discussions or negotiations with any parties that may have
been conducted heretofore with respect to a Competing Transaction. From and after the date hereof until the Expiration Time, each
Shareholder shall promptly advise Parent in writing of (a) any Competing Transaction, (b) any request it receives in
such Shareholder’s capacity as a shareholder of the Company for non-public information relating to the Company or any Subsidiary,
and (c) any inquiry or request for discussion or negotiation it receives in such Shareholder’s capacity as a shareholder
of the Company regarding a Competing Transaction, including in each case the identity of the person making any such Competing Transaction
or indication or inquiry and the terms of any such Competing Transaction or indication or inquiry (including, if applicable, copies
of any written requests, proposals or offers, including proposed agreements). Each Shareholder, in its, his or her capacity as
a shareholder of the Company, shall keep Parent reasonably informed on a reasonably current basis of the status and terms (including
any material changes to the terms thereof) of any such Competing Transaction or indication or inquiry (including, if applicable,
any revised copies of written requests, proposals and offers) and the status of any such discussions or negotiations to the extent
known by such Shareholder. This Section 2.2 shall not apply to any Competing Transaction received by the Company. Each
Shareholder’s receipt, in its, his or her capacity as a shareholder of the Company, of any Competing Transaction shall not
relieve such Shareholder from any of its, his or her obligations hereunder.
Section 2.3 Capacity.
Notwithstanding anything to the contrary in this Agreement, (i) each Shareholder is entering into this Agreement,
and agreeing to become bound hereby, solely in its, his or her capacity as a beneficial owner of the Securities owned by such Shareholders
and not in any other capacity (including without limitation any capacity as a director of the Company) and (ii) nothing in this
Agreement shall obligate such Shareholder to take, or forbear from taking, if applicable, as a director or officer of the Company,
any action which is inconsistent with its, his or her fiduciary duties under the applicable Laws.
ARTICLE III
ROLLOVER SHARES AND MERGER SUB SHARES
Section 3.1 Rollover
Shares. Subject to the terms and conditions set forth herein, (a) each Shareholder shall convert, or cause to be converted,
any and all of ADSs representing any Rollover Shares beneficially owned (as defined under Rule 13d-3 under the Exchange Act) by
such Shareholder into ordinary shares of the Company no later than the date immediately prior to the Company Shareholders’
Meeting, (b) none of the Shareholders shall have the right to receive any Per Share Merger Consideration or Per ADS Merger Consideration
in the Merger with respect to any Rollover Shares of such Shareholder and (c) at the Effective Time, each Rollover Share shall
be converted into and become one validly issued, fully paid and non-assessable ordinary share, par value $0.005 each, of the Surviving
Company.
Section 3.2 Merger
Sub Shares. Each of Parent and Holdco, severally and jointly, hereby agrees and covenants to each Shareholder that Merger Sub
shall, and each of Parent and Holdco shall cause Merger Sub to, have, immediately prior to the Effective Time, 65,678,117 issued,
fully paid and non-assessable ordinary shares, par value $0.0005 per share, all of which shall be owned by Holdco of record.
ARTICLE IV
REPRESENTATIONS, WARRANTIES AND COVENANTS
OF THE SHAREHOLDERS
Section 4.1 Representations
and Warranties. Each Shareholder, severally and not jointly, represents and warrants to Parent and Holdco
as of the date hereof and as of the Closing:
(a) such
Shareholder has full legal right, power, capacity and authority to execute and deliver this Agreement, to perform such Shareholder’s
obligations hereunder and to consummate the transactions contemplated hereby;
(b) this
Agreement has been duly executed and delivered by such Shareholder and the execution, delivery and performance of this Agreement
by such Shareholder and the consummation of the transactions contemplated hereby have been duly authorized by all necessary action
on the part of such Shareholder and no other actions or proceedings on the part of such Shareholder are necessary to authorize
this Agreement or to consummate the transactions contemplated hereby;
(c) assuming
due authorization, execution and delivery by Parent and Holdco, this Agreement constitutes a legal, valid and binding agreement
of such Shareholder, enforceable against such 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) each
Shareholder (A) is and, immediately prior to the Closing, will be the beneficial owner of, and has and will have good and
valid title to, the 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 Shareholder) voting power, 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, laws of the British Virgin
islands, laws of the People’s Republic of China, laws of the Hong Kong Special Administrative Region and the terms of this
Agreement; (ii) the Securities are not subject to any voting trust agreement or other Contract to which such Shareholder is
a party restricting or otherwise relating to the voting or Transfer of the Securities other than this Agreement; (iii) such
Shareholder has not Transferred any Securities pursuant to any Derivative Transaction; (iv) as of the date hereof, except as otherwise
set forth in Section 4.10 of the Holdco Disclosure Schedule delivered by Holdco and Merger Sub and accepted by the Company on the
date hereof in connection with the execution of the Merger Agreement, such Shareholder does not own, beneficially or of record,
any Shares, securities of the Company, or any direct or indirect interest in any such securities (including by way of derivative
securities), other than the Company Share Awards granted by the Company Board to such Shareholder; and (v) such Shareholder has
not appointed or granted any proxy or power of attorney that is still in effect with respect to any Securities, except as contemplated
by this Agreement;
(e) except
for the applicable requirements of the Exchange Act, neither the execution, delivery or performance of this Agreement by such Shareholder
nor the consummation by such Shareholder of the transactions contemplated hereby, nor compliance by such Shareholder with any of
the provisions hereof shall (A) conflict with or violate any provision of the organizational documents of any such 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 Shareholder pursuant to any Contract to which such Shareholder
is a party or by which such Shareholder or any property or asset of such Shareholder is bound or affected, or (C) violate any order,
writ, injunction, decree, statute, rule or regulation applicable to such Shareholder or any of such Shareholder’s properties
or assets;
(f) there
is no Action pending or threatened against any such Shareholder or any of its Affiliates that would reasonably be expected, individually
or in the aggregate, to restrict or prohibit the performance by such Shareholder of its, his or her obligations under this Agreement
or to prevent or materially impair the consummation of the Transactions, including the Merger. None of the Shareholder or any of
its Affiliates is subject to any continuing order of, consent decree, settlement agreement or other similar written agreement with,
or continuing investigation by, any Governmental Authority, or any order, writ, judgment, injunction, decree, determination or
award of any Governmental Authority that would reasonably be expected, individually or in the aggregate, to prevent or materially
impair the consummation of the Merger;
(g) to
the knowledge of such Shareholder, there is no breach by the Company of any representation, warranty, covenant or agreement under
the Merger Agreement that is the proximate result of action or inaction taken by the Company at the direction of such Shareholder
or any of its Affiliates without the approval or direction of the Company Board (acting with the concurrence of the Special Committee)
or the Special Committee;
(g) such
Shareholder acknowledges that it has been advised to discuss with its, his or her own counsel the meaning and legal consequences
of such Shareholder’s representations and warranties in this Agreement and the transactions contemplated hereby; and
(h) each
Shareholder understands and acknowledges that Holdco and Merger Sub are entering into the Merger Agreement in reliance upon such
Shareholder’s execution, delivery and performance of this Agreement.
Section 4.2 Covenants. Each
Shareholder hereby:
(a) agrees,
prior to the Expiration Time, not to knowingly take any action that would make any representation or warranty of such 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 Shareholder of its, his or her obligations under this Agreement;
(b) agrees
and covenants, without the prior consent of Parent or Holdco, not to knowingly take any action or give any direction to the Company
that would cause any breach by the Company of any representation, warranty, covenant or agreement under the Merger Agreement, to
the extent consistent with, if applicable, its, his or her fiduciary duties as a director or officer of the Company under all applicable
Laws;
(c) irrevocably
waives, and agrees not to exercise, any rights of appraisal or rights of dissent from the Merger that such Shareholder may have
with respect to such Shareholder’s Securities (including without limitation any rights under Section 238 of the CICL)
prior to the Expiration Time;
(d) agrees
to permit the Company to publish and disclose in the Proxy Statement (including all documents filed with the SEC in accordance
therewith), such Shareholder’s identity and beneficial ownership of Securities or other equity securities of the Company
and the nature of such Shareholder’s commitments, arrangements and understandings under this Agreement;
(e) agrees
and covenants, severally and not jointly, that such Shareholder shall promptly (and in any event within twenty-four (24) hours)
notify Parent of any new Shares with respect to which ownership, whether beneficially (within the meaning of Rule 13d-3 of the
Exchange Act) or of record, is acquired by such 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
(f) agrees
further that, upon request of Parent, such 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.
ARTICLE V
TERMINATION
Section 5.1 Termination.
This Agreement, and the obligations of the Shareholders hereunder (including, without limitation, Section
1.2 hereof), shall terminate and be of no further force or effect immediately upon the earlier to occur of (a) the Closing
and (b) the date of termination of the Merger Agreement in accordance with its terms. Notwithstanding the preceding sentence,
this Article V and Article VI shall survive any termination of this Agreement, and Section 4.2(b)
shall survive any termination of this Agreement for so long as and to the extent that any of the obligations of the Company under
the Merger Agreement shall survive the termination of the Merger 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.
ARTICLE VI
MISCELLANEOUS
Section 6.1 Notices. All
notices and other communications hereunder shall be in writing (in the English language) and shall be deemed duly given (a) upon
receipt if delivered personally, or if by email or facsimile, upon confirmation of receipt by email or facsimile, (b) one
Business Day after being sent by express courier service, or (c) three Business Days after being sent by registered or certified
mail, return receipt requested. All notices hereunder shall be delivered to the address set forth on the signature pages hereto
under each party’s name, or pursuant to such other instructions as may be designated in writing by the party to receive such
notice.
Section 6.2 Severability. Any
term or provision of this Agreement which is invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective
to the extent of such invalidity or unenforceability without rendering invalid or unenforceable the remaining terms and provisions
of this Agreement in any other jurisdiction. If any provision of this Agreement is so broad as to be unenforceable, such provision
shall be interpreted to be only as broad as is enforceable.
Section 6.3 Entire
Agreement. This Agreement and the Merger Agreement embody the complete agreement and understanding among the
parties hereto with respect to the subject matter hereof and thereof and supersede and preempt any prior understandings, agreements
or representations by or among the parties, written or oral, which may have related to the subject matter hereof in any way.
Section 6.4 Specific
Performance. Each Shareholder acknowledges and agrees that monetary damages would not be an adequate
remedy in the event that any covenant or agreement of such Shareholder in this Agreement is not performed in accordance with its
terms, and therefore agrees that, in addition to and without limiting any other remedy or right available to Parent, Holdco and
Merger Sub, Parent, Holdco and Merger Sub will have the right to an injunction, temporary restraining order or other equitable
relief in any court of competent jurisdiction enjoining any such breach and enforcing specifically the terms and provisions hereof.
Each Shareholder agrees not to oppose the granting of such relief in the event a court determines that such a breach has occurred,
and to waive any requirement for the securing or posting of any bond in connection with such remedy. 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 Parent, Holdco and Merger Sub shall not preclude the simultaneous
or later exercise of any other such right, power or remedy by Parent.
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 Shareholders, Parent
and Holdco, 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 and the schedule hereto 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, except that the following matters
arising out of or relating to this Agreement shall be interpreted, construed, performed, enforced and governed by and in accordance
with the Laws of the Cayman Islands in respect of which the parties hereto hereby irrevocably submit to the nonexclusive jurisdiction
of the courts of the Cayman Islands: the Merger, the vesting of the rights, property, choses in action, business, undertaking,
goodwill, benefits, immunities and privileges, contracts, obligations, claims, debts and liabilities of Merger Sub in the Surviving
Company, the cancellation and conversion of the Shares as the case may be (including Shares represented by ADSs), and the internal
corporate affairs of Merger Sub.
Section 6.7 Dispute
Resolution; Jurisdiction; Enforcement. Subject to the last sentence of Section 6.6, any disputes, actions
and proceedings against any party or arising out of or 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 all the
relevant time and as may be amended by this Section 6.7. 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.
Section 6.8 No
Third Party Beneficiaries. 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.
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 and, in the case of each Shareholder,
his, her or its estate, heirs, beneficiaries, personal representatives and executors.
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.
Section 6.11 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; provided, however, that if any of the Shareholders fails for any reason to execute, or perform
their obligations under, this Agreement, this Agreement shall remain effective as to all parties executing this Agreement.
[Signature Pages to follow]
IN WITNESS WHEREOF, the parties hereto have
duly executed and delivered this Agreement as of the date and year first written above.
|
PARENT |
|
|
|
BTG HOTELS (GROUP) CO., LTD. |
|
|
|
|
By: |
/s/ Rungang Zhang |
|
Name: |
Rungang Zhang |
|
Title: |
Chairman of Board of Directors |
|
|
|
BTG Hotels (Group) Co., Ltd. |
|
51 Fuxingmennei Avenue |
|
Xicheng District, Beijing 100031 |
|
People’s Republic of China |
|
Attention: Rungang Zhang |
[Signature
Page to Support Agreement]
IN WITNESS WHEREOF, the parties hereto have
duly executed and delivered this Agreement as of the date and year first written above.
|
HOLDCO |
|
|
|
BTG HOTELS GROUP (HONGKONG) |
|
HOLDINGS CO., LIMITED |
|
|
|
|
By: |
/s/ Rungang Zhang |
|
Name: |
Rungang Zhang |
|
Title: |
Director |
|
|
|
c/o BTG Hotels (Group) Co., Ltd. |
|
51 Fuxingmennei Avenue |
|
Xicheng District, Beijing 100031 |
|
People’s Republic of China |
|
Attention: Rungang Zhang |
[Signature
Page to Support Agreement]
IN WITNESS WHEREOF, the parties hereto have
duly executed and delivered this Agreement as of the date and year first written above.
|
SHAREHOLDER |
|
|
|
POLY VICTORY INVESTMENTS LIMITED |
|
|
|
|
By: |
/s/ Yi Liu |
|
Name: |
Yi Liu |
|
Title: |
Director |
|
|
|
c/o Beijing Tourism Group |
|
No. 10 Yabao Road, Chaoyang District, Beijing |
|
100020, People's Republic of China |
|
Attention: Yi Liu |
[Signature
Page to Support Agreement]
IN WITNESS WHEREOF, the parties hereto have
duly executed and delivered this Agreement as of the date and year first written above.
|
SHAREHOLDER |
|
|
|
CTRIP TRAVEL INFORMATION TECHNOLOGY (SHANGHAI) CO., LTD. |
|
|
|
|
By: |
/s/ Min Fan |
|
Name: |
Min Fan |
|
Title: |
Legal Representative |
|
|
|
c/o No. 99, Fuquan Road, Shanghai |
|
People’s Republic of China |
|
Attention: Min Fan |
[Signature
Page to Support Agreement]
IN WITNESS WHEREOF, the parties hereto have
duly executed and delivered this Agreement as of the date and year first written above.
|
SHAREHOLDERS |
|
|
|
NEIL NANPENG SHEN |
|
|
|
/s/ Neil Nanpeng Shen |
|
|
|
Room 3616, Two Pacific Place |
|
88 Queensway Hong Kong |
|
|
|
SMART MASTER INTERNATIONAL LIMITED |
|
|
|
|
By: |
/s/ Neil Nanpeng Shen |
|
Name: |
Neil Nanpeng Shen |
|
Title: |
Director |
|
|
|
Room 3616, Two Pacific Place |
|
88 Queensway Hong Kong |
|
Attention: Neil Nanpeng Shen |
[Signature
Page to Support Agreement]
IN WITNESS WHEREOF, the parties hereto have
duly executed and delivered this Agreement as of the date and year first written above.
|
SHAREHOLDERS |
|
|
|
DAVID JIAN SUN |
|
|
|
/s/ David Jian Sun |
|
|
|
No. 124 Caobao Road, Xuhui District, Shanghai |
|
People's Republic of China |
|
|
|
PEACE UNITY INVESTMENT LIMITED |
|
|
|
|
By: |
/s/ David Jian Sun |
|
Name: |
David Jian Sun |
|
Title: |
Director |
|
|
|
No. 124 Caobao Road, Xuhui District, Shanghai |
|
People's Republic of China |
|
Attention: David Jian Sun |
[Signature
Page to Support Agreement]
IN WITNESS WHEREOF, the parties hereto have
duly executed and delivered this Agreement as of the date and year first written above.
|
SHAREHOLDER |
|
|
|
JASON XIANGXIN ZONG |
|
|
|
/s/ Jason Xiangxin Zong |
|
|
|
No. 124 Caobao Road, Xuhui District, Shanghai |
|
People's Republic of China |
[Signature
Page to Support Agreement]
IN WITNESS WHEREOF, the parties hereto have
duly executed and delivered this Agreement as of the date and year first written above.
|
SHAREHOLDER |
|
|
|
WISE KINGDOM GROUP LIMITED |
|
|
|
|
By: |
/s/ Chung Lau |
|
Name: |
Chung Lau |
|
Title: |
Director |
|
|
|
c/o No. 99, Fuquan Road, Shanghai |
|
People’s Republic of China |
|
Attention: Chung Lau |
[Signature
Page to Support Agreement]
SCHEDULE A
Rollover Shares
| |
Rollover Shares | |
Rollover Shareholder | |
Ordinary Shares | | |
Represented by ADSs | |
Poly Victory Investments Limited | |
| 13,446,959 | | |
| 1,279,206 | |
Ctrip Travel Information Technology (Shanghai) Co., Ltd. | |
| 14,400,765 | | |
| — | |
Neil Nanpeng Shen | |
| 375,500 | | |
| — | |
Smart Master International Limited | |
| 3,275,389 | | |
| 183,356 | |
David Jian Sun | |
| 30,138 | | |
| — | |
Peace Unity Investments Limited | |
| 228,806 | | |
| — | |
Jason Xiangxin Zong | |
| 74,272 | | |
| 10,000 | |
Wise Kingdom Group Limited | |
| — | | |
| 317,294 | |
Exhibit I
EXECUTION VERSION
CONSORTIUM AGREEMENT
by and among
BTG HOTELS (GROUP) CO., LTD.,
POLY VICTORY INVESTMENTS LIMITED,
CTRIP.COM INTERNATIONAL, LTD.,
Neil
Nanpeng Shen,
JAMES
JIANZHANG LIANG
and
DAVID JIAN SUN
Dated as of December 6, 2015
TABLE OF CONTENTS
Article I Participation in Transaction; Advisors; Approvals |
1 |
Section 1.01 |
Transaction Process |
1 |
Section 1.02 |
Information Sharing and Roles |
1 |
Section 1.03 |
Appointment of Advisors |
2 |
Section 1.04 |
Additional Consortium Member |
2 |
Section 1.05 |
Consortium Transaction |
2 |
Article II Transaction Costs |
3 |
Section 2.01 |
Expenses and Fee Sharing |
3 |
Article III Limitation of Liability |
4 |
Section 3.01 |
Limitation of Liability |
4 |
Article IV Exclusivity |
4 |
Section 4.01 |
Exclusivity Period |
4 |
Article V Termination |
5 |
Section 5.01 |
Failure to Agree; Mutual Termination; Termination After Execution of Documentation |
5 |
Section 5.02 |
Effect of Termination |
5 |
Article VI Announcements and Confidentiality |
6 |
Section 6.01 |
Announcements |
6 |
Section 6.02 |
Confidentiality |
6 |
Section 6.03 |
Permitted Disclosures |
7 |
Article VII Notices |
7 |
Section 7.01 |
Notices |
7 |
Article VIII Representations and Warranties |
8 |
Section 8.01 |
Representations and Warranties |
8 |
Section 8.02 |
Target Ordinary Shares |
9 |
Section 8.03 |
Separate Representations and Warranties |
9 |
Section 8.04 |
Reliance |
9 |
Article IX Miscellaneous |
9 |
Section 9.01 |
Entire Agreement |
9 |
Section 9.02 |
Further Assurances |
9 |
Section 9.03 |
Severability |
10 |
Section 9.04 |
Amendments; Waivers |
10 |
Section 9.05 |
Language |
10 |
Section 9.06 |
Assignment; No Third Party Beneficiaries |
10 |
Section 9.07 |
No Partnership or Agency |
10 |
Section 9.08 |
Counterparts |
10 |
Section 9.09 |
Governing Law |
10 |
Section 9.10 |
Dispute Resolution |
10 |
Section 9.11 |
Remedies |
11 |
Article X Definitions and Interpretation |
11 |
Section 10.01 |
Definitions |
11 |
Section 10.02 |
Statutory Provisions |
13 |
Section 10.03 |
Recitals and Schedules |
14 |
Section 10.04 |
Meaning of References |
14 |
Section 10.05 |
Headings |
14 |
Section 10.06 |
Negotiation of the Agreement |
14 |
Schedule A Existing Share Ownership |
1 |
Schedule B Adherence Agreement |
1 |
THIS CONSORTIUM AGREEMENT (the "Agreement")
is made as of December 6, 2015, by and among (a) BTG Hotels (Group) Co., Ltd. ("BTG Hotels"), (b) Poly Victory
Investments Limited ("Poly Victory"), (c) Ctrip.com International, Ltd. ("Ctrip"), (d) Neil
Nanpeng Shen ("Mr. Shen"), (e) James Jianzhang Liang ("Mr. Liang") and (f) David Jian Sun
("Mr. Sun"). Each of BTG Hotels, Poly Victory, Ctrip, Mr. Shen, Mr. Liang and Mr. Sun is referred to herein as
a "Party" and collectively as the "Parties."
All defined terms used but not defined in the
first place they appear in the Agreement are defined under Article X hereof.
WHEREAS, the Parties propose to form a consortium
(the "Consortium") to undertake a transaction (the "Transaction") to acquire Homeinns Hotel Group,
a Cayman Islands company (the "Target"), which would result in a delisting of the Target from the Nasdaq Global
Market ("Nasdaq") and deregistering the Target under the United States Securities Exchange Act of 1934, as amended
(the "Exchange Act");
WHEREAS, on June 11, 2015, the Parties submitted
a non-binding proposal (the "Proposal") to the board of directors of the Target in connection with the Transaction
WHEREAS, on June 30, 2015, the Parties entered
into a confidentiality agreement with the Target for the purposes of gaining access to information with respect to the Target in
connection with the Transaction; and
WHEREAS, in accordance with the terms of this
Agreement, the Parties will cooperate and participate in (a) the evaluation of the Target, including conducting due diligence,
(b) discussions regarding the Proposal with the Target, and (c) the negotiation of the terms of the Documentation in connection
with the Transaction (in which negotiations the Parties expect that the Target will be represented by a special committee of independent
and disinterested directors of the Target), including an agreement and plan of merger in the form to be agreed by the Parties (the
"Merger Agreement").
NOW, THEREFORE, in consideration of the foregoing
recitals and of the mutual agreements and covenants 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:
Article
I
Participation in Transaction; Advisors; Approvals
Section 1.01 Transaction
Process. The Parties shall: (a) undertake due diligence with respect to the Target and its business as each Party deems necessary;
(b) engage in discussions with the Target regarding the Proposal; and (c) negotiate in good faith (i) any amendments to the
terms of the Proposal, if applicable, and (ii) the terms of the Documentation (including the terms of any other agreements between
the Parties required to support the Proposal or to regulate the relationship between the Parties), in each case, which terms must
be acceptable to each Party in their respective discretion.
Section 1.02 Information
Sharing and Roles. Each Party shall cooperate in good faith in connection with the Proposal and the Transaction, including
by (a) complying with any information delivery or other requirements entered into by a Party or an Affiliate of a Party, (b) participating
in meetings and negotiations with potential debt financing sources, if any, (c) sharing all information reasonably necessary to
evaluate the Target, including technical, operational, legal, accounting and financial materials and relevant consulting reports
and studies, (d) providing each other Party or their respective Affiliate with all information reasonably required concerning such
Party or any other matter relating to such Party in connection with the Transaction and any other information a Party may reasonably
require in respect of any other Party and its Affiliates for inclusion in the Documentation, (e) providing timely responses to
requests by another Party for information, (f) applying the level of resources and expertise that such Party reasonably considers
to be necessary and appropriate to meet its obligations under this Agreement, and (g) consulting with each other and otherwise
cooperating in good faith on any public statements regarding the Parties' intentions with respect to the Target, any issuance of
which shall be subject to Section 6.01. Unless the Parties otherwise agree, none of the Parties shall commission a report, opinion
or appraisal (within the meaning of Item 1015 of Regulation M-A of the Exchange Act). The Parties agree and confirm that none of
the Parties shall provide any information in breach of any of its or his obligations or fiduciary duties to the Target.
Section 1.03 Appointment
of Advisors.
(a) All
joint Advisors, and the scope and other terms of such Advisors' engagement, to the Parties in connection with the Proposal and
the Transaction shall be satisfactory to each Party.
(b) If
a Party requires separate representation in connection with specific issues arising out of the Proposal or the Transaction or other
matters contemplated by the Documentation, it may retain other Advisors to advise such Party; provided, however,
that such Party shall (i) provide prior notice to the other Parties of such retention and (ii) be solely responsible
for the fees and expenses of such separate Advisors unless otherwise agreed to in advance by other Parties in writing.
Section 1.04 Additional
Consortium Member. The Parties may together agree to admit one or more additional members (the "Additional Members")
of the Consortium which will provide equity capital and/or debt financing to the Consortium for the consummation of the Transaction.
Any additional member admitted to the Consortium shall execute an adherence agreement to this Agreement in the form attached hereto
as Schedule B (the "Adherence Agreement") and upon its execution of the Adherence Agreement, such additional member
shall become an Additional Member for the purposes of this Agreement.
Section 1.05 Consortium
Transaction. Each Party hereby acknowledges that, upon obtaining requisite PRC governmental approvals, BTG Hotels may enter
into an agreement with the other Parties hereto to acquire part or all of the Target Ordinary Shares held by them in exchange for
equity interests in BTG Hotels, cash and/or other forms of transaction (the "Consortium Transaction"); provided,
however, that the price per Target Ordinary Share used in the Consortium Transaction will be the same or lower than the consideration
per Target Ordinary Share to be set forth in the Merger Agreement, and the closing of the Consortium Transaction will be subject
to receipt of all PRC governmental approvals required for the consummation of the Consortium Transaction.
Article
II
Transaction Costs
Section 2.01 Expenses
and Fee Sharing.
(a) Upon
consummation of the Transaction, the surviving company at the Closing shall reimburse the Parties for, or pay on behalf of the
Parties, as the case may be, all of their out-of-pocket costs and expenses incurred in connection with the Transaction, including,
without limitation, the costs and expenses associated with (i) the negotiation, delivery and execution of this Agreement and the
other Documentation, (ii) the retention by the Consortium of one or more financial advisors, (iii) any actions taken in accordance
with the terms of the Documentation, including regulatory filings made or to be made pursuant to the Merger Agreement, and (iv)
the retention of Advisors by the Parties or the Consortium (other than fees, expenses and disbursement of any separate Advisors
retained by a Party pursuant to Section 1.03(b) unless otherwise agreed to in advance by the Parties in writing); provided,
however, that in the event that any regulatory authority raises objections to the above provision, such costs and expenses
shall be borne in a manner to be agreed to by the Parties after negotiation in good faith.
(b) Subject
to the provisions of Section 3.01, Section 1.03(b) and Section 2.01(c), if the Transaction is not consummated or this Agreement
is terminated prior to the Closing of the Transaction, BTG Hotels shall be responsible for eighty percent (80%), and each of Ctrip,
Mr. Shen, Mr. Liang and Mr. Sun shall be severally responsible for their respective share (on a pro rata basis in proportion to
their respective beneficial ownership of Target Ordinary Shares) of the remaining twenty percent (20%), of the out-of-pocket costs
and expenses incurred by or on behalf of the Consortium in connection with the Transaction, including any fees, expenses and disbursements
payable to Advisors retained for or on behalf of the Consortium and the out-of-pocket costs and expenses incurred in connection
with any due diligence investigation conducted by the Parties with respect to the Target, including any fees, expenses and disbursements
payable to Advisors retained for such purposes (other than fees, expenses and disbursements of any separate Advisors retained by
the Parties pursuant to Section 1.03(b) unless otherwise agreed to in advance by the Parties in writing); provided, however,
that subject to the provisions of Section 3.01, Section 1.03(b) and Section 2.01(c), if the Transaction is not consummated or this
Agreement is terminated prior to the Closing because of failure to obtain any PRC governmental approval required for the Transaction
or, if applicable, the Consortium Transaction, BTG Hotels shall be responsible for all of such out-of-pocket costs and expenses
incurred by or on behalf of the Consortium in connection with the Transaction.
(c) If
the Transaction is not consummated due to the unilateral breach of this Agreement by one or more Parties, then the breaching Party
or Parties shall reimburse any non-breaching Party for all of its out-of-pocket costs and expenses incurred in connection with
this Transaction, including any fees, expenses and disbursements of (i) Advisors retained by the Parties (including the fees,
expenses and disbursements of any separate Advisors retained by a Party pursuant to Section 1.03(b)) and (ii) any due diligence
advisors engaged by the Consortium in connection with the Transaction, without prejudice to any rights and remedies otherwise available
to such non-breaching Party.
Article
III
Limitation of Liability
Section 3.01 Limitation
of Liability. The obligations of each Party under this Agreement are several (and not joint or joint and several) and, except
as set forth in Section 2.01(c), each Party's obligation for fees and costs pursuant to Article II is capped at such Party's respective
ownership of Target Ordinary Shares or, in the case of BTG Hotels, the amount of cash that it will commit to fund in the Transaction
as agreed upon by the Parties. If a Claim has arisen as a result of the fraud, willful misconduct or breach of this Agreement by
a Party, then Liability for such Claim will rest solely with such Party.
Article
IV
Exclusivity
Section 4.01 Exclusivity
Period. During the Exclusivity Period, unless otherwise agreed to by the Parties, each Party:
(a) shall
and shall cause its respective Affiliates and Representatives to, work exclusively with the other Parties to implement the Transaction,
including to (i) evaluate the Target; (ii) formulate any amendments to the terms of the Proposal, if applicable; (iii) prepare
and submit to the Target the Merger Agreement; (iv) conduct negotiations, prepare and finalize the Documentation in the forms to
be agreed by the Parties and (v) vote, or cause to be voted, at every shareholder meeting (whether by written consent or otherwise)
all Securities against any Competing Proposal or matter that would facilitate a Competing Proposal and in favor of the Transaction;
(b) shall
not, without the written consent of the other Parties, directly or indirectly, either alone or with or through any of its Affiliates
or Representatives: (i) make a Competing Proposal or join with, or invite, any other person to be involved in the making of any
Competing Proposal (including through any rollover investment therein); (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 Proposal; (iii) finance or offer to finance
any Competing Proposal, including by offering any equity or debt finance, or contribution of Securities or provision of a voting
agreement, in support of any Competing Proposal; (iv) enter into any written or oral agreement, arrangement or understanding
(whether legally binding or not) regarding, or do, anything which is directly inconsistent with the Transaction as contemplated
under this Agreement; (v) acquire (other than pursuant to share incentive plans of the Target, if applicable) or dispose of any
Securities, or directly or indirectly (A) sell, offer to sell, give, pledge, encumber, assign, grant any option for the sale
of or otherwise transfer or dispose of, or enter into any agreement, arrangement or understanding to sell or otherwise transfer
or dispose of, an interest in any Securities ("Transfer") or permit the Transfer by any of their respective Affiliates
of an interest in any Securities, in each case, except as expressly contemplated under this Agreement and the Documentation, (B)
enter into any contract, option or other arrangement or understanding with respect to a Transfer or limitation on voting rights
of any of the Securities, or any right, title or interest thereto or therein, or (C) deposit any Securities into a voting trust
or grant any proxies or enter into a voting agreement, power of attorney or voting trust with respect to any Securities, (vi) take
any action that would have the effect of preventing, disabling or delaying the Party from performing its obligations under this
Agreement; or (vii) solicit, encourage, facilitate, induce or enter into any negotiation, discussion, agreement or understanding
(whether or not in writing) with any other person regarding the matters described in Section 4.01(a) or (b);
(c) shall
immediately cease and terminate, and cause to be ceased and terminated, all existing activities, discussions, conversations, negotiations
and other communications (whether conducted by it or any of its Affiliates or Representatives) with all persons conducted heretofore
with respect to a Competing Proposal; and
(d) notify
the other Parties promptly if it or any of its Affiliates or Representatives receives any approach or communication with respect
to any Competing Proposal and shall promptly disclose to the other Parties the identity of any other persons involved and the nature
and content of the approach or communication, and promptly provide copies of any such written Competing Proposal.
Article
V
Termination
Section 5.01 Failure
to Agree; Mutual Termination; Termination After Execution of Documentation.
(a) If
the Parties, after good faith endeavors to pursue the Transaction in compliance with the other sections of this Agreement, are
unable to agree either (i) as between themselves upon the material terms of the Transaction or (ii) with the Special Committee
on the material terms of a transaction which the Special Committee agrees to recommend to the public shareholders of the Target,
then (A) a Party may cease its participation in the Transaction upon prior written notice to the other Parties; and (B) this Agreement
shall terminate with respect to such withdrawing Party thereafter, following which the provisions of Section 5.02(a) will apply.
(b) This
Agreement shall terminate at any time upon the mutual written agreement of the Parties.
(c) After
the execution of the Merger Agreement, this Agreement shall terminate without any further action on the part of any Party, upon
the earlier of (i) the date the Transaction is consummated, or (ii) the date that the Merger Agreement is validly terminated in
accordance with its terms.
Section 5.02 Effect
of Termination.
(a) Upon
termination of this Agreement with respect to a Party pursuant to Section 5.01(a), Article II (Transaction Costs), Article III
(Limitation of Liability), Article IV (Exclusivity), Article V (Termination), Section 6.02 (Confidentiality), Article VII (Notices)
and Article IX (Miscellaneous) shall continue to bind such Party and such Party shall be liable under Article II for the portion
of any expenses for which it is obligated under Section 2.01(b) incurred prior to the termination of this Agreement with respect
to such Party. The Parties shall otherwise not be liable to each other in relation to this Agreement, other than in respect of
a breach of this Agreement occurring prior to termination.
(b) Upon
termination of this Agreement with respect to a Party pursuant to Section 5.01(b) or Section 5.01(c), Article II (Transaction Costs),
Article III (Limitation of Liability), Article V (Termination), Section 6.02 (Confidentiality), Article VII (Notices) and Article
IX (Miscellaneous) shall continue to bind such Party and such Party shall be liable under Article II for the portion of any expenses
for which it is obligated under Section 2.01(b) incurred prior to the termination of this Agreement with respect to such Party.
The Parties shall otherwise not be liable to each other in relation to this Agreement, other than in respect of a breach of this
Agreement occurring prior to termination.
(c) Other
than as set forth in Section 5.02(a) and Section 5.02(b), the Parties shall not otherwise be liable to each other in relation to
this Agreement.
Article
VI
Announcements and Confidentiality
Section 6.01 Announcements.
No announcements regarding the subject matter of this Agreement shall be issued by any Party without the prior written consent
of the other Parties, which consent shall not be unreasonably withheld or delayed, except to the extent that any such announcements
are required by law, a court of competent jurisdiction, a regulatory body or stock exchange (but only as far as practicable and
lawful after the form and terms of that disclosure have been notified to the other Parties and the other Parties have had a reasonable
opportunity to comment on the form and terms of disclosure, in each case, to the extent reasonably practicable).
Section 6.02 Confidentiality.
(a) Except
as permitted under Section 6.03, each Party shall not, and shall direct that its Representatives do not, without the prior written
consent of the other Parties, disclose any Confidential Information received by it (the "Recipient") from any
other Party (the "Discloser"). Each Party shall not and shall direct its Representatives not to, use any Confidential
Information for any purpose other than for the purposes of this Agreement or the Transaction.
(b) Subject
to Section 6.02(c), the Recipient shall safeguard and return to the Discloser any Confidential Information which falls within paragraph
(a) of the definition of Confidential Information, on demand, or in the case of electronic data (other than any electronic data
stored on the back-up tapes of the Recipient's hardware), destroy at the option of the Recipient, any Confidential Information
contained in any material in its or its Representatives' possession or control.
(c) Each
Party may retain in a secure archive a copy of the Confidential Information referred to in Section 6.02(b) if the Confidential
Information is required to be retained by such Party for regulatory purposes or in connection with a bona fide document retention
policy.
(d) Each
Party acknowledges that, in relation to Confidential Information received from the other Party, the obligations contained in Section
6.02(a) shall continue to apply for a period of twenty-four (24) months following termination of this Agreement unless otherwise
agreed in writing.
Section 6.03 Permitted
Disclosures. A Party may make disclosures (a) to those of its Representatives as such Party reasonably deems necessary to give
effect to or enforce this Agreement (including potential sources of capital) but only on a confidential basis; (b) if required
by law or a court of competent jurisdiction, the SEC, Nasdaq or another regulatory body or stock exchange having jurisdiction over
a Party or pursuant to whose rules and regulations such disclosure is required to be made, but only as far as practicable and lawful
after the form and terms of that disclosure have been notified to the other Parties and the other Parties have had a reasonable
opportunity to comment on the form and terms of disclosure, in each case, to the extent reasonably practicable; or (c) if the information
is publicly available other than through a breach of this Agreement by such Party or its Representatives.
Article
VII
Notices
Section 7.01 Notices.
Any notice, request, instruction or other document to be given hereunder by any Party to another Party shall be in writing and
delivered personally or sent by registered or certified mail, postage prepaid, by facsimile, overnight courier or electronic mail:
If to BTG Hotels:
BTG Hotels (Group) Co., Ltd.
No. 51 Fuxingmennei Avenue
Beijing 100031
People's Republic of China
Facsimile: +86-10 6601-9471
Attention: Rungang Zhang, Chairman
E-mail: zhangrungang@btg.com.cn
If to Poly Victory:
Poly Victory Investments Limited
c/o Beijing Tourism Group
No. 10, Ya Bao Road
Chaoyang District, Beijing 100006
People's Republic of China
Facsimile: +86-10 8561-8080
Attention: Yi Liu, Director
If to Ctrip:
Ctrip.com International, Ltd.
99 Fu Quan Road
Shanghai 200335
People's Republic of China
Telephone: +86-21 3406-4880
Facsimile: +86-21 5251-0000
Attention: Chief Financial Officer
E-mail: xfwang@ctrip.com
If to Mr. Shen:
Mr. Neil Nanpeng Shen
Sequoia Capital
Suite 3613, 36/F, Two Pacific Place
88 Queensway
Hong Kong
Facsimile: +852 2501 5249
E-mail: shen@sequoiacap.com
If to Mr. Liang:
James Jianzhang Liang
Ctrip.com International, Ltd.
99 Fu Quan Road
Shanghai 200335
People's Republic of China
E-mail: liangjz@ctrip.com
If to Mr. Sun:
David Jian Sun
Homeinns Hotel Group
No. 124 Caobao Road,
Xuhui District, Shanghai 200235
People's Republic of China
E-mail: jiansun@homeinns.com
or to such other address or facsimile number or email address as
such Party may hereafter specify for the purpose by notice to the other Party hereto. All such notices, requests and other communications,
(a) if hand delivered, shall be deemed received on the date of receipt by the recipient thereof if received prior to 6:00 p.m.
on a Business Day in the place of receipt; otherwise, any such notice, request or communication shall be deemed to have been received
on the next succeeding Business Day in the place of receipt; (b) if posted by mail, it shall be treated as delivered five (5) days
after posting; (c) if transmitted by facsimile or email, shall be deemed received upon confirmation of delivery.
Article
VIII
Representations and Warranties
Section 8.01 Representations
and Warranties. Each Party hereby represents and warrants (on behalf of such Party only) to other Parties that (a) it has the
requisite power and authority or, in the case of Mr. Shen, Mr. Liang and Mr. Sun, the legal capacity and right to execute, deliver
and perform this Agreement, (b) except in the case of Mr. Shen, Mr. Liang or Mr. Sun, the execution, delivery and performance of
this Agreement by it have been duly authorized by all necessary action on the part of such person and no additional proceedings
are necessary to approve this Agreement, and (c) this Agreement has been duly executed and delivered by it and constitutes a valid
and binding agreement enforceable against such Party in accordance with the terms hereof. Each Party further represents and warrants
(on behalf of such Party only) to other Parties that (a) its execution, delivery and performance (including the provision and exchange
of information) of this Agreement will not (i) conflict with, require a consent, waiver or approval under, or result in a breach
of or default under, any of the terms of any contract or agreement to which such person is a party or by which such person is bound
or office such person holds; (ii) violate any order, writ, injunction, decree or statute, or any rule or regulation, applicable
to such person or any of the properties or assets of such person; or (iii) result in the creation of, or impose any obligation
on such person to create, any lien, charge or other encumbrance of any nature whatsoever upon such person's properties or assets,
and (b) no broker, finder or investment banker is entitled to any brokerage, finder's or other fee or commission in connection
with the transactions contemplated by this Agreement based upon arrangements made by or on behalf of such Party.
Section 8.02 Target
Ordinary Shares. Each Party further represents and warrants (on behalf of such Party only) to other Parties that as of the
date of this Agreement, (a) unless otherwise disclosed in Schedule A hereto such Party or its Affiliates hold (i) of record
the number of outstanding Target Ordinary Shares set forth under the heading "Target Ordinary Shares" next to its or
its Affiliate's name on Schedule A hereto, and (ii) the other Securities set forth under the heading "Other Securities"
next to its or its Affiliate's name on Schedule A hereto, in each case free and clear of any encumbrances or restrictions; (b)
unless otherwise disclosed in Schedule A, such Party has the sole right to control the voting and disposition of the Target Ordinary
Shares (if any) and any other Securities (if any) held by such Party or its Affiliates; and (c) such Party does not own, directly
or indirectly, any Target Ordinary Shares or other Securities other than as set forth on Schedule A hereto. For purposes of this
Section 8.02, "owns" means the relevant Party (x) is the record holder of such security or (y) is the "beneficial
owner" (within the meaning of Rule 13d-3 under the Exchange Act) of such security.
Section 8.03 Separate
Representations and Warranties. Each representation and warranty in Section 8.01 and Section 8.02 is a separate representation
and warranty. The interpretation of any representation and warranty may not be restricted by reference to or inference from any
other representation and warranty.
Section 8.04 Reliance.
Each Party acknowledges that the other Parties have entered into this Agreement on the basis of and in reliance upon (among other
things) the representations and warranties in Section 8.01 and Section 8.02 and have been induced by it to enter into this Agreement.
Article
IX
Miscellaneous
Section 9.01 Entire
Agreement. This Agreement constitutes the entire agreement between the Parties and supersedes any previous oral or written
agreements or arrangements among them or between any of them relating to its subject matter.
Section 9.02 Further
Assurances. Each Party shall use commercially reasonable efforts to take, or cause to be taken, all actions, and to do, or
cause to be done, and to assist and cooperate with the other Parties in doing, all things necessary, proper or advisable to carry
out the intent and purposes of this Agreement.
Section 9.03 Severability.
If any provision of this Agreement is held to be invalid or unenforceable for any reason, it shall be adjusted rather than voided,
if possible, in order to achieve the intent of the Parties to the maximum extent possible. In any event, the invalidity or unenforceability
of any provision of this Agreement in any jurisdiction shall not affect the validity or enforceability of the remainder of this
Agreement in that jurisdiction or the validity or enforceability of this Agreement, including that provision, in any other jurisdiction.
Section 9.04 Amendments;
Waivers. Neither this Agreement nor any term hereof may be amended or otherwise modified other than by an instrument in writing
signed by the Parties. No provision of this Agreement may be waived, discharged or terminated other than by an instrument in writing
signed by the Party against whom the enforcement of such waiver, discharge or termination is sought. No failure or delay by any
Party in exercising any right, power or privilege under this Agreement shall operate as a waiver thereof nor shall any single or
partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege.
Section 9.05 Language.
The official text of this Agreement and any notices given or made hereunder shall be in English.
Section 9.06 Assignment;
No Third Party Beneficiaries. Other than as provided herein, the rights and obligations of each Party shall not be assigned
without the prior consent of other Parties; provided, however, a Party may assign its respective rights and obligations
under this Agreement, in whole or in part, to any affiliated investment vehicles of such Party and, subject to the consent of the
other Parties (not to be unreasonably withheld or delayed), any other co-investors of the Party (as the case may be), but no such
assignment shall relieve the Party from any of its obligations hereunder. This Agreement shall be binding upon the respective heirs,
successors, legal representatives and permitted assigns of the Parties. Nothing in this Agreement, whether express or implied,
is intended to or shall confer upon any person, other than the Parties and their heirs, successors, legal representatives and permitted
assigns, any rights, benefits, claims or remedies whatsoever under or by reason of this Agreement or any provision hereof.
Section 9.07 No
Partnership or Agency. The Parties are independent and nothing in this Agreement constitutes a Party as the trustee, fiduciary,
agent, employee, partner or joint venturer of the other Party.
Section 9.08 Counterparts.
This Agreement may be executed in counterparts and all counterparts taken together shall constitute one document. This Agreement
shall not be effective until each Party has executed at least one counterpart.
Section 9.09 Governing
Law. This Agreement shall be governed by, and construed in accordance with, the substantive laws of the Hong Kong Special Administrative
Region without regard to the conflicts of laws principles thereof.
Section 9.10 Dispute
Resolution.
(a) Subject
to Section 9.11, 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 9.10. The place of arbitration
shall be Hong Kong. The official language of the arbitration shall be English and the tribunal shall consist of three arbitrators
(each, an "Arbitrator"). The claimant(s), irrespective of number, shall nominate jointly one Arbitrator;
the respondent(s), irrespective of number, shall nominate jointly one Arbitrator; and a third Arbitrator will be nominated jointly
by the first two Arbitrators and shall serve as chairman of the 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 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
9.10, 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 Hong Kong Special Administrative Region, 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 9.10(b) is only applicable to the seeking of interim injunctions and does not restrict the
application of Section 9.11 in any way.
Section 9.11 Remedies.
Without prejudice to the rights and remedies otherwise available to any Party, including the right to claim money damages for breach
of any provision hereof, any Party may bring an action for specific performance and/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.
Article
X
Definitions and Interpretation
Section 10.01 Definitions.
In this Agreement, unless the context requires otherwise:
"ADSs" means the American Depositary
Shares of the Target, each of which currently represents two Target Ordinary Shares.
"Additional Members" has the
meaning given in Section 1.04.
"Adherence Agreement" has the
meaning given in Section 1.04.
"Advisors" means the legal,
accounting, banking and other advisors and/or consultants of the Consortium, the Parties and/or a Party, as the case may be, appointed
in connection with the Transaction.
"Affiliate" means, with respect
to any person, any other person that, directly or indirectly, Controls, is Controlled by or is under common Control with such specified
person and "Affiliates" shall be construed accordingly.
"Agreement" means this Consortium
Agreement, as amended, modified or supplemented from time to time in accordance with its terms.
"Arbitrator" has the meaning
given in Section 9.10.
"Business Day" means any day
(other than a Saturday or a Sunday) on which banks generally are open in the People's Republic of China, Hong Kong and in New York,
New York, for the transaction of normal banking business.
"Claim" means a claim against
any one or more of the Parties arising from or relating to the Transaction in respect of which a Party is, or is sought to be,
made liable to pay any sum of money to any person other than a Party (or any of their respective Affiliates), whether on a joint
and several basis or on any other basis.
"Closing" means the consummation
of the Transaction.
"Competing Proposal" means
a proposal, offer or invitation to the Company, any Party or any of their respective Affiliates (other than the Proposal), that
involves the acquisition of Control of the Target, a sale of all or a substantial part of the assets of the Target, a restructuring
or recapitalization of the Target, or some other transaction that would adversely affect, prevent or materially reduce the likelihood
of the consummation of the Transaction with the Parties.
"Confidential Information"
includes (a) all written, oral or other information obtained in confidence by one Party from any other Party in connection with
this Agreement or the Transaction, unless such information is already known to such Party or to others not known by such Party
to be bound by a duty of confidentiality or such information is or becomes publicly available other than through a breach of this
Agreement by such Party and (b) the terms of, and any negotiations or discussions relating to, the Proposal.
"Consortium Agreement" has
the meaning given in Section 1.05.
"Control" means the possession,
directly or indirectly, of the power to direct the management and policies of a person whether through the ownership of voting
securities, contract or otherwise.
"Discloser" has the meaning
given in Section 6.02(a).
"Documentation" means the documentation
required to implement the Transaction, including the Proposal, the Merger Agreement, debt financing documents, if any, filings
with the SEC and other governmental agencies, and ancillary documentation, in each case, in the form to be agreed by the Parties.
"Exchange Act" has the meaning
given in the recitals.
"Exclusivity Period" means,
unless otherwise agreed to by the Parties, the period beginning on the date hereof and ending on the first to occur of (a) September
5, 2016 and (b) the mutually agreed termination of this Agreement pursuant to Section 5.01(b).
"HKIAC" has the meaning given
in Section 9.10.
"Liability" means a liability
to pay a sum of money arising pursuant to a Claim (which sum is deemed to include all legal and other costs, damages, losses and
expenses incurred in connection with (or arising directly or indirectly from) defending, disputing or otherwise dealing with any
such Claim) where the liability arises from a judgment given by a court of competent jurisdiction, the final decision given in
any binding arbitration proceedings or the agreed settlement of the Claim.
"Merger Agreement" has the
meaning given in the recitals.
"Nasdaq" has the meaning given
in the recitals.
"Parties" has the meaning given
in the preamble.
"PRC" means the People's Republic
of China (for the purpose of this Agreement, not including Hong Kong Special Administrative Region, Macau Special Administrative
Region and Taiwan).
"Proposal" has the meaning
given in the recitals.
"Recipient" has the meaning
given in Section 6.02(a).
"Representative" of a Party
means such Party's officers, managers, directors, general partners, employees, outside counsel, accountants, consultants, financial
advisors, potential sources of equity or debt financing (and their respective counsel).
"SEC" means the United States
Securities and Exchange Commission.
"Securities" means (a) any
ADSs, (b) any shares in the Target, and (c) any warrants, options and any other securities which are convertible into or exercisable
for ADSs or shares in the Target.
"Special Committee" means a
special committee of independent and disinterested directors of the Target that has been established to be responsible for, among
other matters, evaluating the Transaction and negotiating the terms of the Transaction with the Consortium.
"Target" has the meaning given
in the recitals.
"Target Ordinary Shares" means
the issued and outstanding ordinary shares, par value US$0.005 per share, of the Target, including the ordinary shares represented
by ADSs.
"Transaction" has the meaning
given in the recitals.
"Transfer" has the meaning
given in Section 4.01(b).
Section 10.02 Statutory
Provisions. All references to statutes, statutory provisions, enactments, directives or regulations shall include references
to any consolidation, reenactment, modification or replacement of the same, any statute, statutory provision, enactment, directive
or regulation of which it is a consolidation, re-enactment, modification or replacement and any subordinate legislation in force
under any of the same from time to time.
Section 10.03 Recitals
and Schedules. References to this Agreement include the recitals and schedules which form part of this Agreement for all purposes.
References in this Agreement to the Parties are references respectively to the Parties and their legal personal representatives,
successors and permitted assigns.
Section 10.04 Meaning
of References. In this Agreement, unless the context requires otherwise:
(a) words
importing one gender shall be treated as importing any gender, words importing individuals shall be treated as importing corporations
and vice versa, words importing the singular shall be treated as importing the plural and vice versa, and words importing the whole
shall be treated as including a reference to any part thereof;
(b) references
to a "person" shall include any individual, firm, body corporate, unincorporated association, government, state or agency
of state, association, joint venture or partnership, in each case whether or not having a separate legal personality. References
to a "company" shall be construed so as to include any company, corporation or other body corporate wherever and however
incorporated or established;
(c) references
to the word "include" or "including" (or any similar term) are not to be construed as implying any limitation;
(d) any
reference to "writing" or "written" includes any method of reproducing words or text in a legible and non-transitory
form;
(e) references
to any document (including this Agreement) are references to that document as amended, consolidated, supplemented, novated or replaced
from time to time;
(f) references
to "US$" are to the lawful currency of the United States of America, as at the date of this Agreement; and
(g) references
to "Target Ordinary Shares" shall include Target Ordinary Shares represented by ADSs.
Section 10.05 Headings.
Section and paragraph headings and the table of contents are inserted for ease of reference only and shall not affect construction.
Section 10.06 Negotiation
of the Agreement. The Parties have participated jointly in the negotiation and drafting of this Agreement. In the event that
an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the Parties
and no presumption or burden of proof shall arise favoring or disfavoring any Party by virtue of the authorship of any provisions
of this Agreement.
[Signature page follows.]
IN WITNESS WHEREOF, the Parties have caused
this Agreement to be executed and delivered as of the date first written above.
|
BTG Hotels (Group) Co., Ltd. |
|
|
|
|
By: |
/s/ Rungang Zhang |
|
Name: |
Rungang Zhang |
|
Title: |
Chairman of Board of Directors |
[Signature Page to Consortium Agreement]
IN WITNESS WHEREOF, the Parties have caused
this Agreement to be executed and delivered as of the date first written above.
|
Poly Victory Investments Limited |
|
|
|
|
By: |
/s/ Yi Liu |
|
Name: |
Yi Liu |
|
Title: |
Authorized Person |
[Signature Page to Consortium Agreement]
IN WITNESS WHEREOF, the Parties have caused
this Agreement to be executed and delivered as of the date first written above.
|
Ctrip.com International, Ltd. |
|
|
|
|
By: |
/s/ Xiaofan Wang |
|
Name: |
Xiaofan Wang |
|
Title: |
Chief Financial Officer |
[Signature Page to Consortium Agreement]
IN WITNESS WHEREOF, the Parties have caused
this Agreement to be executed and delivered as of the date first written above.
|
Neil Nanpeng Shen |
|
|
|
/s/ Neil Nanpeng Shen |
[Signature Page to Consortium Agreement]
IN WITNESS WHEREOF, the Parties have caused
this Agreement to be executed and delivered as of the date first written above.
|
James Jianzhang Liang |
|
|
|
/s/ James Jianzhang Liang |
[Signature Page to Consortium Agreement]
IN WITNESS WHEREOF, the Parties have caused
this Agreement to be executed and delivered as of the date first written above.
|
David Jian Sun |
|
|
|
/s/ David Jian Sun |
[Signature Page to Consortium Agreement]
Schedule
A
Existing Share Ownership
| |
Target Ordinary Shares | | |
| |
| |
Ordinary Shares | | |
Represented by ADSs | | |
Other Securities | |
Members of the Buyer Group and Investment Vehicles Controlled by Members of the Buyer Group | |
| | | |
| | | |
| | |
BTG Hotels (Group) Co., Ltd. | |
| — | | |
| — | | |
| — | |
Poly Victory Investments Limited | |
| 13,446,959 | | |
| 1,279,206 | | |
| — | |
Ctrip Travel Information Technology (Shanghai) Co., Ltd. | |
| 14,400,765 | | |
| — | | |
| — | |
Neil Nanpeng Shen | |
| 375,500 | | |
| — | | |
| 33,000 | (1) |
Smart Master International Limited(2) | |
| 3,275,389 | | |
| 183,356 | | |
| — | |
James Jianzhang Liang | |
| — | | |
| 4,500 | | |
| 16,500 | (1) |
Chung Lau(3) | |
| — | | |
| 317,294 | | |
| — | |
David Jian Sun | |
| 30,138 | | |
| — | | |
| 234,000 | (1) |
Peach Unity Investments Limited(4) | |
| 228,806 | | |
| 40,000 | | |
| — | |
Notes:
|
(1) |
Ordinary shares issuable upon the vested options that the person holds. |
|
(2) |
Smart Master International Limited is a British Virgin Islands company owned and controlled by Mr. Neil Nanpeng Shen and his spouse. |
|
(3) |
Ms. Chung Lau is the spouse of Mr. James Jianzhang Liang. |
|
(4) |
Peach Unity Investments Limited is a British Virgin Islands company solely owned and controlled by Mr. David Jian Sun. |
Schedule
B
Adherence Agreement
THIS ADHERENCE AGREEMENT (this "Agreement")
is entered into on ____, 201_
BY:
[New Member], a [limited liability company] organized and
existing under the laws of _________ with its registered address at _______ (the "New Member").
RECITALS:
(A) On
December 6, 2015, the parties listed at Annex A (the "Existing Parties") entered into a consortium agreement (the
"Consortium Agreement") and proposed to undertake an acquisition transaction (the "Transaction")
with respect to Homeinns Hotel Group (the "Target"), a company incorporated under the laws of the Cayman
Islands and listed on Nasdaq Global Market ("Nasdaq"), pursuant to which the Target would be delisted from Nasdaq
and deregistered under the United States Securities Exchange Act of 1934, as amended.
(B) Additional
members may be admitted to the Consortium pursuant to Section 1.04 of the Consortium Agreement.
(C) The
New Member now wishes to participate in the Transaction contemplated under the Consortium Agreement, to sign this Agreement, and
to be bound by the terms of the Consortium Agreement as a Party thereto.
THIS AGREEMENT WITNESSES as follows:
|
1. |
Defined Terms And Construction |
|
(a) |
Capitalized terms used but not defined herein shall have the meaning set forth in the Consortium Agreement. |
|
(b) |
This Agreement shall be incorporated into the Consortium Agreement as if expressly incorporated into the Consortium Agreement. |
|
(a) |
Assumption of obligations |
The New Member undertakes, to each other Party
to this Agreement that it will, with effect from the date hereof, perform and comply with each of the obligations of a Party as
if it had been a Party to the Consortium Agreement at the date of execution thereof and the Existing Parties agree that where there
is a reference to a "Party" it shall be deemed to include a reference to the New Member and with effect from the date
hereof, all the rights of a Party provided under the Consortium Agreement will be accorded to the New Member as if the New Member
had been a Party under the Consortium Agreement at the date of execution thereof.
|
3. |
Representations And Warranties |
|
(a) |
The New Member represents and warrants to each of the other Parties as follows: |
It is a company duly organized, established
and validly existing under the laws of the jurisdiction stated in the preamble of this Agreement and has all requisite power and
authority to own, lease and operate its assets and to conduct the business which it conducts.
It has full power and authority to execute and
deliver this Agreement and the execution, delivery and performance of this Agreement by the New Member has been duly authorized
by all necessary action on behalf of the New Member.
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(3) |
Legal, Valid and Binding Obligation |
This Agreement has been duly executed and delivered
by the New Member and constitutes the legal, valid and binding obligation of the New Member, enforceable against it in accordance
with the terms hereof.
As of the date of this Agreement, (i) the New
Member holds (A) of record the number of outstanding Target Ordinary Shares set forth under the heading "Shares Held of Record"
next to its name on Schedule A hereto (specifying the number held as ordinary shares and in the form of ADSs), free and clear of
any encumbrances or restrictions, and (B) the other Securities set forth under the heading "Other Securities" next to
its name on Schedule A hereto, in each case free and clear of any encumbrances or restrictions; (ii) the New Member has the sole
right to control the voting and disposition of such Target Ordinary Shares (if any) and any other Securities (if any) held by it;
and (iii) none of the New Member and its Affiliates owns, directly or indirectly, any Target Ordinary Shares or other Securities,
other than as set forth on Schedule A hereto.]1
Each Party acknowledges that the other Parties
have entered into this Agreement on the basis of and reliance upon (among other things) the representations and warranties in Sections
3(a)(1) to 3(a)(4) and have been induced by them to enter into this Agreement.
1 If applicable.
Any notice, request, instruction or other document
to be provided hereunder by any Party to another Party shall be in writing and delivered personally or sent by facsimile, overnight
courier or electronic mail, to the address, facsimile number or electronic mail address provided under the Consortium Agreement,
or to any other address, facsimile number or electronic mail address as a Party may hereafter specify for the purpose by notice
to the other Parties hereto. All such notices, requests and other communications, (a) if hand delivered, shall be deemed received
on the date of receipt by the recipient thereof if received prior to 6:00 p.m. on a Business Day in the place of receipt; otherwise,
any such notice, request or communication shall be deemed to have been received on the next succeeding Business Day in the place
of receipt; (b) if posted by mail, it shall be treated as delivered five (5) days after posting; (c) if transmitted by facsimile
or electronic mail, shall be deemed received upon confirmation of delivery.
This Agreement shall be governed by, and construed
in accordance with, the laws of the Hong Kong Special Administrative Region, 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 Hong Kong Special Administrative
Region.
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(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 ("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(a). The place of arbitration shall be Hong Kong. The official language of the arbitration shall be English and the tribunal shall consist of three arbitrators (each, an "Arbitrator"). The claimant(s), irrespective of number, shall nominate jointly one Arbitrator; the respondent(s), irrespective of number, shall nominate jointly one Arbitrator; and a third Arbitrator will be nominated jointly by the first two Arbitrators and shall serve as chairman of the 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 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, 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 Hong Kong Special Administrative Region, 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(b) is only applicable to the seeking of interim injunctions and does not restrict the application of Section 6(a) in any way. |
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.
[Signature page follows.]
IN WITNESS WHEREOF, the New Member has caused
this Agreement to be duly executed by its respective authorized officers as of the day and year first above written.
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[New Member's Name] |
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By: |
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Name: |
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Position: |
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Notice details |
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Address: |
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Email: |
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Facsimile: |
ANNEX A (ADHERENCE AGREEMENT)
EXISTING MEMBERS
BTG Hotels (Group) Co., Ltd.
Poly Victory Investments Limited
Ctrip.com International, Ltd.
Neil Nanpeng Shen
James Jianzhang Liang
David Jian Sun
Schedule
A (ADHERENCE AGREEMENT)
SHARES HELD OF RECORD
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Shares Held Record | |
Other |
New Member | |
Ordinary Shares | |
ADSs | |
Securities |
[New Member's Name] | |
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