UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

Form 6-K

 

 

Report of Foreign Private Issuer

Pursuant to Rule 13a-16 or 15d-16

under the Securities Exchange Act of 1934

For the month of April 2019

Commission File Number 001-34837

 

 

MAKEMYTRIP LIMITED

(Exact name of registrant as specified in its charter)

 

 

19th Floor, Building No. 5

DLF Cyber City

Gurgaon, India, 122002

(Address of principal executive offices)

Indicate by check mark whether the registrant files or will file annual reports under cover Form 20-F or Form 40-F.

Form 20-F  ☒            Form 40-F  ☐

Indicate by check mark if the registrant is submitting the Form 6-K in paper as permitted by Regulation S-T Rule 101(b)(1): ☐

Indicate by check mark if the registrant is submitting the Form 6-K in paper as permitted by Regulation S-T Rule 101(b)(7): ☐

 

 

 

MakeMyTrip Limited (“MakeMyTrip”) is incorporating by reference the information set forth in this Form 6-K into its two automatically effective resale shelf registration statements on Form F-3 (File No. 333-219337) dated July 18, 2017, as amended, and Form F-3 (File No. 333-219342) dated July 19, 2017, as amended.

Changes in Shareholding between Naspers and Ctrip

MakeMyTrip, a limited liability company organized under the laws of Mauritius, today announced that MIH Internet SEA Pte. Ltd. (“MIH Internet”), the sole holder of our Class B Shares and a subsidiary of global technology group, Naspers Limited (“Naspers”) has agreed to sell all of the 42,638,206 Class B shares and 1,130,556 ordinary shares representing approximately 42.5% of our outstanding voting securities to Ctrip.com International, Ltd. (“Ctrip”), an existing shareholder who already owns approximately 10.5% of our outstanding voting securities.

The sale from Naspers to Ctrip will be effected pursuant to a share purchase agreement (“SPA”) between Ctrip, MIH Internet and MIH B2C Holdings B.V. (“MIH B2C”), pursuant to which MIH Internet will exchange its entire shareholding in MakeMyTrip for newly issued shares of Ctrip. We have been advised by Ctrip that, concurrently with the transfer of Class B shares and ordinary shares from Naspers to Ctrip, Ctrip will invest certain ordinary shares and Class B shares in a third-party investment entity.

Following the transaction, Naspers will own 5.6% of Ctrip’s outstanding ordinary shares, and Ctrip and the third-party investment entity will own ordinary shares and Class B shares of MakeMyTrip representing approximately 49.0% and 4.0% of MakeMyTrip’s total voting rights, respectively.

Naspers and Ctrip have advised MakeMyTrip that the transaction is expected to close as soon as practicable in the second half of 2019 and is subject to customary closing conditions, including the requisite regulatory approvals.

Immediately following the closing of the transactions, MakeMyTrip’s board will consist of five directors (one of whom will be a resident of Mauritius) nominated by Ctrip, two management directors and three directors (one of whom will be a resident of Mauritius) who will qualify as Independent Directors (as defined in the Amended and Restated Investor Rights Agreement).

Amended and Restated Investor Rights Agreement

In connection with the transactions, MakeMyTrip and Ctrip have entered into an amended and restated investor rights agreement dated April 26, 2019 (“Amended and Restated Investor Rights Agreement”), pursuant to which MakeMyTrip and Ctrip have agreed to modify the standstill provisions in the existing investor rights agreement, such that the percentage of MakeMyTrip’s outstanding voting securities that Ctrip is restricted from beneficially owning will be increased from 26.6% to 74.9%, effective on closing of the transactions.

In addition, the Amended and Restated Investor Rights Agreement provides for the following:

 

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immediately following the closing of the transactions, Ctrip will be entitled to nominate five directors (one of whom will be a resident of Mauritius) to MakeMyTrip’s board of directors, one of whom will have a casting vote, subject to applicable law and Nasdaq rules);

 

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subject to applicable law and Nasdaq rules, a majority of Independent Directors must be appointed from a pool of candidates approved of by Deep Kalra, Rajesh Magow and a majority of the Ctrip nominee directors;

 

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Ctrip will not take any action to delist MakeMyTrip from Nasdaq (except in connection with an acquisition of all our outstanding securities by any person);

 

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Ctrip will be restricted from selling the MakeMyTrip shares that it owns immediately after closing of the transactions to certain competitors of MakeMyTrip;

 

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so long as Ctrip owns at least 10% of MakeMyTrip’s outstanding voting shares, Ctrip will not invest in any other travel or travel-related business in India; and

 

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in the event that MakeMyTrip proposes to issue any voting securities within 12 months after the closing of the transactions, Ctrip will use commercially reasonable efforts to engage in good-faith discussion with MakeMyTrip with a view to subscribing its pro rata share of such voting securities.

Ctrip has agreed not to amend the SPA without the prior written consent of MakeMyTrip, if, among other things, such amendment would in the reasonable determination of the Investor and a majority of the Independent Directors acting on behalf of MakeMyTrip materially and adversely impact the rights of or protection to the minority shareholders of MakeMyTrip.

The Amended and Restated Investor Rights Agreement may be amended or modified only with the prior written consent of Ctrip and a majority of the Independent Directors acting on behalf of MakeMyTrip.

The Amended and Restated Investor Rights Agreement will only become effective on the closing of the transaction. If the transaction does not close, the Amended and Restated Investor Rights Agreement will terminate and the existing investor rights agreement, as amended prior to the date hereof, will continue to remain in effect. A copy of the Amended and Restated Investor Rights Agreement is attached hereto as Exhibit 99.1. A copy of the existing investor rights agreement between MakeMyTrip and Ctrip, as amended prior to the date hereof, is attached hereto as Exhibits 99.3 and 99.4.

Guarantee Agreement

In connection with the transactions, MakeMyTrip, MIH Internet and MIH B2C have entered into a guarantee agreement dated April 26, 2019 (“Guarantee Agreement”), pursuant to which MIH B2C has agreed to guarantee certain residual liabilities of MIH Internet under the Transaction Agreement dated as of October 18, 2016 between MakeMyTrip, MIH Internet and MIH B2C, effective as of the closing of the transactions.

Naspers has agreed not to amend the SPA without the prior written consent of MakeMyTrip, if, among other things, such amendment would in the reasonable determination of the Investor and a majority of the Independent Directors acting on behalf of MakeMyTrip materially and adversely impact the rights of or protection to the minority shareholders of MakeMyTrip. Subject to applicable law and Nasdaq rules, MakeMyTrip has agreed that it will not, without the prior written consent of Naspers, amend the Amended and Restated Investor Rights Agreement in any manner that could reasonably be expected to prevent or delay the closing of the transactions. A copy of the Separation Agreement is attached hereto as Exhibit 99.2.

The foregoing discussion of the Amended and Restated Investor Rights Agreement and Guarantee Agreement does not purport to be complete and is qualified in its entirety by reference to the full text of the Amended and Restated Investor Rights Agreement and Guarantee Agreement, which are attached to this Form 6-K as Exhibits 99.1 and 99.2 respectively.

Shareholding information

As of March 31, 2019, we had (a) 60,303,845 ordinary shares and 42,638,206 Class B shares outstanding, (b) outstanding options exercisable into a total of 17,839 ordinary shares under our 2001 Equity Option Plan and (c) 9,448,304 ordinary shares reserved and available for issuance under our 2010 Share Incentive Plan (of which 5,734,826 ordinary shares have been previously issued or are subject to awards outstanding, with the remaining balance of 3,713,478 ordinary shares available for future issuances).

Special Notice Regarding Forward-Looking Statements

This document contains forward-looking statements within the meaning of the Private Securities Litigation Reform Act of 1995. These forward-looking statements include, but are not limited to, (i) statements about the benefits of the transactions, including minority protection rights; and (ii) other statements identified by words such as “expects,” “anticipates,” “intends,” “plans,” “believes,” “seeks,” “estimates” or words of similar meaning.

These forward-looking statements are based upon management’s current beliefs or expectations and are inherently subject to significant business, economic and competitive uncertainties and contingencies and third-party approvals, many of which are beyond our control. The following factors, among others, could cause actual results to differ materially from those expressed or implied in the forward-looking statements: (i) the occurrence of any event, change or other circumstances that could result in the transactions not closing; and (ii) the inability to complete the transactions due to the failure to obtain the required regulatory approval.

Additional information concerning these and other important factors can be found within MakeMyTrip’s filings with the SEC, which discuss the foregoing risks as well as other important risk factors that could contribute to such differences or otherwise affect our business, results of operations and financial condition. Statements in this communication should be evaluated in light of these important factors. The forward-looking statements in this communication speak only as of the date they are made. Except for the ongoing obligations of MakeMyTrip to disclose material information in accordance with law, MakeMyTrip does not undertake any obligation to, and expressly disclaim any such obligation to, update or alter any forward-looking statement to reflect new information, circumstances or events that occur after the date such forward-looking statement is made unless required by law.

Exhibits

 

99.1	Amended and Restated Investor Rights Agreement, dated April 26, 2019 by and between MakeMyTrip Limited and Ctrip.com International, Ltd.

 

99.2	Guarantee Agreement dated April 26, 2019 by and among MakeMyTrip Limited, MIH Internet SEA Pte. Ltd. and MIH B2C Holdings B.V.

 

99.3	Investor Rights Agreement dated January 7, 2016 by and between MakeMyTrip Limited and Ctrip.com International, Ltd. (Incorporated by reference to Exhibit 99.1 to Form 6-K (File No. 001-34837) as filed with the SEC on January 1, 2016).

 

99.4	Amendment to Investor Rights Agreement dated October 18, 2016 by and between MakeMyTrip Limited and Ctrip.com International, Ltd. (Incorporated by reference to Exhibit 99.3 to Form 6-K (File No. 001-34837) as filed with the SEC on October 19, 2016).

SIGNATURE

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.

Date: April 26, 2019

 

EXHIBIT INDEX

 

99.1	Amended and Restated Investor Rights Agreement, dated April 26, 2019 by and between MakeMyTrip Limited and Ctrip.com International, Ltd.

 

99.2	Guarantee Agreement dated April 26, 2019 by and among MakeMyTrip Limited, MIH Internet SEA Pte. Ltd. and MIH B2C Holdings B.V.

 

99.3	Investor Rights Agreement dated January 7, 2016 by and between MakeMyTrip Limited and Ctrip.com International, Ltd. (Incorporated by reference to Exhibit 99.1 to Form 6-K (File No. 001-34837) as filed with the SEC on January 1, 2016).

 

99.4	Amendment to Investor Rights Agreement dated October 18, 2016 by and between MakeMyTrip Limited and Ctrip.com International, Ltd. (Incorporated by reference to Exhibit 99.3 to Form 6-K (File No. 001-34837) as filed with the SEC on October 19, 2016).

Exhibit 99.1

AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT

This Amended and Restated Investor Rights Agreement (this “Agreement”) is entered into as of April 26, 2019 between MakeMyTrip Limited, a limited liability company incorporated under the laws of Mauritius, with its head offices at 19th Floor, Building No. 5, DLF Cyber City, Gurugram, 122002, India (the “Company”) and Ctrip.com International, Ltd., an exempted company with limited liability incorporated under the laws of the Cayman Islands with its head offices at Building 16, Sky SOHO, 968 Jinzhong Road, Shanghai 200335, People’s Republic of China (the “Investor”).

WHEREAS, the Investor entered into an Investor Rights Agreement dated as of January 7, 2016 (as amended on October 18, 2016, the “Original IRA”) in connection with the Investor’s acquisition of certain Company Securities (as defined in the Original IRA);

WHEREAS, the Investor has entered into a share purchase agreement (the “Share Purchase Agreement”) on the date hereof to acquire all of the ordinary shares and Class B convertible ordinary shares, par value $0.0005 per share, held by MIH Internet SEA Private Limited (the “Transactions”); and

WHEREAS, pursuant to Section 5.07(a) of the Original IRA and as a condition to the consummation of the Transactions, the Company and the Investor wish to amend and restate the Original IRA as set forth in this Agreement, effective as of the Closing Date.

NOW, THEREFORE, in consideration of the foregoing and the mutual covenants and agreements herein contained, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and intending to be legally bound hereby, the parties hereto agree that the Original IRA is hereby amended and restated in its entirety to read as follows:

ARTICLE 1

DEFINITIONS

Section 1.01    Definitions.

As used in this Agreement, the following terms have the following meanings:

“Applicable Law” means, with respect to any Person, any transnational, domestic or foreign federal, state or local law (statutory, common or otherwise), constitution, treaty, convention, ordinance, code, rule, regulation, order, injunction, judgment, decree, ruling or other similar requirement enacted, adopted, promulgated or applied by a Governmental Authority that is binding upon or applicable to such Person, as amended unless expressly specified otherwise.

“Board” means the board of directors of the Company.

 

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“Business Day” means any day that is not a Saturday, a Sunday or other day on which banking institutions in the Cayman Islands, the State of New York, Mauritius, New Delhi, Shanghai, Hong Kong or Singapore are required by Applicable Law to be closed.

“Class B Shares” means the class B convertible ordinary shares, par value $0.0005 per share, of the Company, which are governed by the Terms of Issue.

“Closing Date” means the date on which the Transactions are consummated.

“Company Securities” means (i) Ordinary Shares, (ii) securities convertible into or exchangeable for Ordinary Shares (including, without limitation, the Class B Shares), (iii) any options, warrants or other rights to acquire Ordinary Shares and (iv) any depository receipts or similar instruments issued in respect of Ordinary Shares.

“Company Voting Securities” means all shares of all classes of Company Securities then outstanding which are normally entitled (without regard to the occurrence of any contingency) to vote in the election of directors thereof, including all Ordinary Shares and Class B Shares.

“Constitution” means the Constitution of the Company, as amended.

“Director” means any director of the Company from time to time.

“Exchange Act” means the United States Securities Exchange Act of 1934, as amended, and any rules and regulations promulgated thereunder.

“Governmental Authority” means any federal, national, supranational, state, provincial, local, municipal or other government, any governmental, quasi-governmental, supranational, regulatory or administrative authority (including any governmental division, department, agency, commission, instrumentality, organization, unit or body, political subdivision, and any court or other tribunal) or any self-regulatory organization (including NASDAQ) with competent jurisdiction.

“Group” has the meaning given to such term in Section 13(d)(3) of the Exchange Act.

“Hong Kong” means the Hong Kong Special Administrative Region of the People’s Republic of China.

“Independent Directors” means, for purposes of this Agreement, (i) Aditya Tim Guleri, Vivek N. Gour and Gyaneshwarnath Gowrea as of the date hereof or (ii) any Director who replaces any of them and who meets the independence requirements of Rule 5605 of the NASDAQ Stock Market Rules and otherwise satisfies the independence requirements set forth in Rule 10A-3 promulgated under the Exchange Act.

“Lien” means, with respect to any property or asset, any mortgage, pledge, claim, security interest, easement, covenant, restriction, reservation, defect in title, encroachment or other encumbrance, lien (choate or inchoate), charge, equity, or other restriction or limitation, whether arising by contract or under Applicable Law.

“Management Directors” means Deep Kalra and Rajesh Magow.

 

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“NASDAQ” means the NASDAQ Global Market.

“Ordinary Shares” means ordinary shares of the Company, par value $0.0005 per ordinary share.

“Permitted Assignee” means any permitted assignee of the Investor pursuant to Section 7.01(b).

“Person” means any individual, general or limited partnership, corporation, limited liability company, joint stock company, trust, joint venture, unincorporated organization, association or any other entity, including any Governmental Authority, or any Group consisting of two or more of the foregoing.

“Securities” means any shares, stocks, debentures, funds, bonds, notes or any rights, warrants, options or interests in respect of any of the foregoing or any other derivatives or instruments having similar economic effect.

“Securities Act” means the United States Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.

“Subsidiary” as of the relevant date of determination, with respect to any Person (the “subject entity”), (i) any Person (x) more than fifty percent (50%) of whose shares or other interests entitled to vote in the election of directors or (y) more than fifty percent (50%) interest in the profits or capital of such Person are owned or controlled directly or indirectly by the subject entity or through one (1) or more Subsidiaries of the subject entity, (ii) any Person, including for the avoidance of doubt any “variable interest entity,” whose financial statements, or portions thereof, are or are intended to be consolidated with the financial statements of the subject entity for financial reporting purposes in accordance with IFRS or (iii) any Person with respect to which the subject entity has the sole power to control or otherwise direct the business and policies of that entity directly or indirectly through another subsidiary or otherwise.

“Terms of Issue” means the Terms of Issue of Class B Shares (as Exhibit 1.2 to the Form 20-F of the Company for the fiscal year ended March 31, 2018), as amended.

“Transfer” means (i) sell, assign, give, pledge, encumber, hypothecate, mortgage, exchange or otherwise dispose of, (ii) grant to any Person any option, right or warrant to purchase or otherwise receive, or (iii) enter into any swap or other agreement that transfers, in whole or in part, any of the economic consequences or other rights of ownership. The terms “Transferring,” “Transferee” and “Transferred” shall have a correlative meaning.

“U.S.” means the United States of America.

Each of the following terms is defined in the Section set forth opposite such term:

 

Term		Section
“Agreement”		Preamble
“Company”		Preamble
“Competitor”		3.01(a)
“Competitor List”		3.01(a)
“Competitor Transferee”		3.01(a)
“Investor”		Preamble
“Recommended Candidate(s)”		2.01(a)
“Share Purchase Agreement”		Recitals

 

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Section 1.02    Other Definitional and Interpretative Provisions.

The words “hereof,” “herein” and “hereunder” and words of like import used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement. The captions herein are included for convenience of reference only and shall be ignored in the construction or interpretation hereof. References to Articles, Sections, Clauses, Annexes, Exhibits and Schedules are to Articles, Sections, Clauses, Exhibits and Schedules of this Agreement unless otherwise specified. All Annexes, Exhibits and Schedules annexed hereto or referred to herein are hereby incorporated in and made a part of this Agreement as if set forth in full herein. Any capitalized terms used in any Exhibit or Schedule but not otherwise defined therein, shall have the meaning as defined in this Agreement. Any singular term in this Agreement shall be deemed to include the plural, and any plural term the singular. Whenever the words “include,” “includes” or “including” are used in this Agreement, they shall be deemed to be followed by the words “without limitation,” whether or not they are in fact followed by those words or words of like import. “Writing,” “written” and comparable terms refer to printing, typing and other means of reproducing words (including electronic media) in a visible form. References to any Person include the successors and permitted assigns of that Person. References from or through any date mean, unless otherwise specified, from and including or through and including, respectively. References to “law,” “laws” or to a particular statute or law shall be deemed also to include any and all Applicable Law. References to any statute shall be deemed to refer to such statute as amended from time to time and to any rules or regulations promulgated thereunder. References to “dollars” or “$” shall refer to U.S. dollars. References from or through any date mean, unless otherwise specified, from and including or through and including, respectively.

ARTICLE 2

CORPORATE GOVERNANCE

Section 2.01    Board Representation

(a)    The Company acknowledges and agrees that immediately after the Closing Date, the Investor (or any Permitted Assignee) shall be entitled to nominate to the Board five (5) Directors (each, an “Investor Director”) pursuant to the Terms of Issue by virtue of holding the issued and outstanding Class B Shares and Ordinary Shares.

(b)    In addition to and without prejudice to the foregoing, but subject to Applicable Law and the NASDAQ Stock Market Rules, in the event that any Independent Director(s) is to be appointed to the Board, the Investor (or any Permitted Assignee) shall be entitled to recommend a candidate or a pool of candidates (the “Recommended Candidate(s)”) to the Board for the purpose of such appointment, it being agreed that (x) the Board (or a subset of the Board, if applicable) shall not take steps to nominate or appoint any person other than the Recommended Candidate(s) to be an Independent Director, and (y) the Independent Director appointed from the Recommended Candidate(s) pursuant to this sentence shall serve on each committee of the Board; provided that (A) the appointment of an Independent Director from the Recommended Candidate(s) shall be subject to the consent of Management Directors, (B) the appointment of any Independent Director other than pursuant to this sentence shall be subject to the consent of the Investor Directors, and (C) this sentence (other than item (B) above) shall not be in effect for (and only for) so long as one (1) Independent Director appointed from the Recommended Candidate(s) pursuant to this sentence serves on the Board.

(c)    In addition to and without prejudice to any of the foregoing, but subject to Applicable Law and the NASDAQ Stock Market Rules, a majority of Independent Directors must come from a pool of candidates approved of by the Management Directors and a majority of the Investor Directors.

 

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(d)    Subject to Applicable Law and the NASDAQ Stock Market Rules, promptly after the Closing Date, the Company shall cause the chairman of the Board to execute an irrevocable power of attorney (in form and substance reasonably acceptable to the Investor) in favor of an Investor Director (as designated by the Investor) so that that Investor Director acting alone would be entitled to exercise the casting vote to which the chairman would otherwise have been entitled pursuant to Article 114 of the Constitution.

Section 2.02    Expenses and Indemnification.

Each Investor Director shall be entitled to the same rights, capacities, entitlements, compensation, if any, indemnification and insurance in connection with his or her role as a director as other members of the Board, and shall be entitled to reimbursement for all reasonable and documented, out-of-pocket expenses incurred in connection with the performance of his or her services as a director of the Company, including without limitation reasonable out-of-pocket expenses incurred in attending meetings of the Board or any committees thereof, to the same extent as other members of the Board. The Company shall, upon the appointment of an Investor Director, enter into an indemnification agreement in the same form as applicable to other members of the Board with such director for so long as that Investor Director continues to serve as a director of the Board. In addition, each Investor Director shall be entitled to coverage under the Company’s directors’ and officers’ liability insurance effective upon his or her appointment to the Board, with the same coverage as, and containing terms and conditions no less favorable than, those available to the other members of the Board.

Section 2.03    Listing Status.

From the Closing Date, the Investor shall not, and shall procure that none of its controlled affiliates will, directly or indirectly, take any action to delist the Ordinary Shares from NASDAQ (except in connection with an acquisition of all the outstanding Company Securities by any Person) without the prior approval of both a majority of the Directors (including the Class B Directors) and a majority of the Independent Directors.

ARTICLE 3

ACQUISITIONS AND DISPOSITIONS

Section 3.01    No Further Purchases.

Notwithstanding any provision to the contrary in the Terms of Issue, from the Closing Date, the Investor shall not, and shall procure that none of its controlled affiliates shall, directly or indirectly, acquire any Company Voting Securities in any manner, whether in the open market, in privately negotiated transactions, by tender offer or exchange offer or otherwise, that would result in the Investor, together with its controlled affiliates, beneficially owning in the aggregate 74.9% or more of the issued and outstanding Company Voting Securities (determined on an actual basis and not a fully diluted basis). For the avoidance of doubt, it is hereby acknowledged that the Transactions are not in violation of Section 3.02 of the Original IRA.

Section 3.02    Competitor Transferees.

(a) From the Closing Date, the Investor shall not, and shall procure that none of its controlled affiliates will, directly or indirectly, Transfer any Company Securities that are held by the Investor or any of its controlled affiliates immediately after the Closing Date to any Person identified in Schedule 1 hereto (the “Competitor List”) (collectively, the “Competitors”), or to any controlled affiliates of any such Person (Competitors and their respective controlled affiliates collectively, “Competitor Transferees”); any such Transfer shall be null and void; provided, however, that the foregoing shall not prohibit any sale of Ordinary Shares through bona fide brokers’ transactions or pursuant to transactions in the open market to any person.

 

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(b)    The Competitor List identifies the Competitors as of the date hereof. The Competitor List may be amended following the date hereof as may be proposed by either the Company or the Investor, each such amendment to be effective upon mutual agreement by and between the Company and the Investor, provided that, unless otherwise consented to by the Investor, (i) any Person so added to the Competitor List as a Competitor must be a material direct competitor of the Company engaging in one or its principal lines of business in the Republic of India, as reasonably determined by the Company and the Investor, and (ii) the Competitor List may not be amended (A) prior to the six-month anniversary of the Closing Date or (B) more than once per each twelve-month period thereafter. For the avoidance of doubt, the Investor and its controlled affiliates shall never be included in the Competitor List.

Section 3.03    Violation.

Any Transfer made in violation of Section 3.01 or Section 3.02 shall be null and void, regardless of whether the purported Transferee has any actual or constructive knowledge of the Transfer restrictions set forth in this Agreement or the Terms of Issue, and the Company shall not be obligated to register any such Transfer in its books and records.

Section 3.04    Future Subscription.

In the event that the Company proposes to issue any Company Voting Securities within 12 months after the Closing Date, the Company will promptly notify the Investor in writing and the Investor will use commercially reasonable efforts to engage in good-faith discussion with the Company with a view to subscribing for a pro rata portion of these Company Voting Securities.

Section 3.05    Amendment of the Share Purchase Agreement.

The Investor agrees not to take steps to amend the Share Purchase Agreement without the prior written consent of the Company, if such amendment (a) modifies the definition of the term “Outside Date” therein or (b) would in the reasonable determination of the Investor and a majority of the Independent Directors acting on behalf of the Company materially and adversely impact the rights of or protection to the minority shareholders of the Company.

ARTICLE 4

CONDUCT OF BUSINESS

Section 4.01    Conduct of Business.

Effective as of the Closing Date and until the date on which the Investor and its controlled affiliates cease to own at least 10% of the total number of then-outstanding Company Voting Securities on an actual basis, the Investor shall not, and shall cause its controlled affiliates not to, invest in any travel or travel-related business (e.g., hotel booking, air ticketing, rail ticketing, bus ticketing and packaged tour booking) in the Republic of India through persons or entities other than the Company and its Subsidiaries, without the prior written consent of the Board (which shall include consent of the Management Directors).

 

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ARTICLE 5

REPRESENTATIONS AND WARRANTIES

Section 5.01    Representations and Warranties of Each Party.

In connection with the transactions provided for herein, each party hereby represents and warrants to the other as follows:

(a)    Existence and Power. It is duly incorporated, validly existing and in good standing under the laws of its jurisdiction of organization and has all necessary corporate power and authority to enter into this Agreement, to carry out its obligations hereunder and thereunder and to consummate the transactions contemplated hereby and thereby.

(b)    Authorization. The execution, delivery and performance of this Agreement by it has been duly authorized by all necessary corporate action on its part. This Agreement has been duly executed and delivered by it and, assuming due authorization, execution and delivery by the other party, constitutes legal, valid and binding obligation of such party, enforceable against such party in accordance with its terms, except as enforcement may be limited by general principles of equity, whether applied in a court of law or a court of equity, and by applicable bankruptcy, insolvency and similar law affecting creditors’ rights and remedies generally.

(c)    No Violation. The execution, delivery and performance by it of this Agreement does not and will not (i) violate, conflict with or result in the breach of any provision of its memorandum and articles of association (or similar organizational documents), (ii) conflict with or violate any Applicable Law or (iii) conflict with, result in any breach of, constitute a default (or event which with the giving of notice or lapse of time, or both, would become a default) under, require any consent under, or give to others any rights of termination, amendment, acceleration, suspension, revocation or cancellation of, any note, bond, mortgage or indenture, contract, agreement, lease, sublease, license, permit, franchise or other instrument or arrangement to which it is a party or result in the creation of any Liens upon any of its properties or assets, other than, in the case of clauses (ii) and (iii) above, any such conflict, violation, default, termination, amendment, acceleration, suspension, revocation or cancellation that would not have, individually or in the aggregate, a material adverse effect on the ability and authority of such party and its Subsidiaries (taken as a whole) to perform its obligations under this Agreement.

(d)    Governmental Consents and Approvals. Other than any filings or submissions required pursuant to the Applicable Law, the execution, delivery and performance by it of this Agreement does not and will not require any consent, approval, authorization or other order of, action by, filing with, or notification to, any Governmental Authority.

Section 5.02    Representations and Warranties of the Investor.

The Investor represents and warrants to the Company that the Investor has provided the Company with a true, complete and accurate copy of the Share Purchase Agreement.

ARTICLE 6

AMENDMENT AND TERMINATION

Section 6.01    Amendment.

The provisions of this Agreement may be amended or modified only upon the prior written consent of (i) the Investor and (ii) a majority of the Independent Directors acting on behalf of the Company. The failure of any party to enforce any of the provisions of this Agreement shall in no way be construed as a waiver of such provisions and shall not affect the right of such party thereafter to enforce each and every provision of this Agreement in accordance with its terms.

 

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Section 6.02    Termination.

Unless otherwise provided herein, this Agreement shall terminate and be of no further force and effect (a) in the event that the closing of the Transactions does not occur on or prior to the Outside Date (as defined in the Share Purchase Agreement), in which case the Original IRA shall remain in full force and effect, or (b) in the event that the closing of the Transactions occurs, upon the Investor and its controlled affiliates ceasing to own at least 1% of the total number of then-outstanding Company Voting Securities on an actual basis; provided that the provisions of Articles 5, 6 and 7 shall survive any termination of this Agreement.

ARTICLE 7

MISCELLANEOUS

Section 7.01    Binding Effect; Assignability; Benefit.

(a)    This Agreement shall inure to the benefit of and be binding upon the parties hereto and their respective heirs, successors, legal representatives and permitted assigns.

(b)    Neither this Agreement nor any right, remedy, obligation or liability arising hereunder or by reason hereof shall be assignable by any party without the prior written consent of the other party hereto; provided that except as otherwise specified herein, the Investor may assign any right or remedy arising under this Agreement or by reason hereof, or Transfer any Company Securities, to (i) any of its controlled affiliates; or (ii) any of its non-controlled affiliates, provided that such non-controlled affiliates execute and deliver to each party hereto a joinder agreement pursuant to which such non-controlled affiliate shall become a party to this Agreement.

(c)    Nothing in this Agreement, expressed or implied, is intended to confer on any Person other than the parties hereto, and their respective heirs, successors, legal representatives and permitted assigns, any rights, remedies, obligations or liabilities under or by reason of this Agreement.

Section 7.02    Notices.

All notices, requests, claims, demands and other communications hereunder shall be in writing and shall be deemed duly given, made or received (i) on the date of delivery if delivered in person, (ii) on the date of confirmation of receipt of transmission by facsimile, email or other form of electronic delivery (provided confirmation of transmission is mechanically or electronically generated and kept on file by the sending party) or (iii) three (3) Business Days after deposit with an internationally recognized express courier service to the respective parties hereto at the following addresses (or at such other address for a party as shall be specified in a notice given in accordance with this Section 7.02):

If to the Company, to:

 

MakeMyTrip Limited 19th Floor, Building No. 5
DLF Cyber City
Gurugram, India, 122002

Attention:		Mohit Kabra
Facsimile:		+91 124 4395100
Email:		groupcfo@go-mmt.com

with a copy to:

 

Latham & Watkins LLP 9 Raffles Place #42-02
Republic Plaza
Singapore 048619

Attention:		Michael Sturrock / Rajiv Gupta
Facsimile:		+65 6536 1171
Email:		michael.sturrock@lw.com / rajiv.gupta@lw.com

 

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If to the Investor, to:

 

Ctrip.com International, Ltd.
Building 16, Sky SOHO 968 Jinzhong Road
Shanghai 200335 People’s Republic of China

Attention:		Shiwei Zhou
Email:		zhousw@Ctrip.com

with a copy to:

 

Skadden, Arps, Slate, Meagher & Flom LLP c/o 42/F, Edinburgh Tower, The Landmark 15 Queen’s Road Central
Hong Kong

Attention:		Z. Julie Gao, Esq. / Haiping Li, Esq.
Facsimile:		+852 3910 4863 / +852 3910 4835
Email:		julie.gao@skadden.com / haiping.li@skadden.com

Section 7.03    Severability.

If any term, provision, covenant or restriction of this Agreement is held by a court of competent jurisdiction or other Governmental Authority to be invalid, void or unenforceable, the remainder of the terms, provisions, covenants and restrictions of this Agreement shall remain in full force and effect and shall in no way be affected, impaired or invalidated so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner materially adverse to any party. Upon such a determination, the parties shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in an acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the fullest extent possible.

Section 7.04    Entire Agreement.

This Agreement constitutes the entire agreement between the parties with respect to the subject matter of this Agreement and supersedes all prior agreements and understandings, both oral and written, between the parties with respect to the subject matter of this Agreement.

Section 7.05    Counterparts.

This Agreement may be signed in any number of counterparts, each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument.

Section 7.06    Descriptive Headings.

The descriptive headings of this Agreement are inserted for convenience only and do not constitute a part of this Agreement.

 

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Section 7.07    Governing Law.

This Agreement, the rights and obligations of the parties hereto, and all claims or disputes relating hereto, shall be governed by and construed in accordance with the internal laws of the State of New York, without regard to the conflicts of law rules thereunder.

Section 7.08    Forum, Jurisdiction and Service of Process.

(a)    Each party irrevocably consents and agrees that any legal action, suit or proceeding against it with respect to obligations, liabilities or any other matter arising out of or in connection with this Agreement or the transactions contemplated herein shall be brought in the courts of the State of New York or the courts of the United States located in the Borough of Manhattan, New York City, New York and hereby (i) irrevocably consents and submits to the exclusive jurisdiction of each such court in personam, generally and unconditionally with respect to any action, suit or proceeding for itself in respect of its properties, assets and revenues, (ii) waives, to the fullest extent permitted by Applicable Law, any objection which it may now or hereafter have to the laying of venue of any of the aforesaid actions, suits or proceedings arising out of or in connection with this Agreement or the transactions contemplated herein brought in any such court, (iii) waives and agrees not to plead or claim in any such court that any such action, suit or proceeding brought in any such court has been brought in an inconvenient forum and (iv) subject to Section 7.08(b) and Section 7.08(c), agrees that service of process upon such party in any such action or proceeding shall be effective if notice is given in accordance with Section 7.02.

(b)    The Company irrevocably appoints MakeMyTrip Inc. as its authorized agent in the Borough of Manhattan, New York City, New York upon which process may be served in any such suit or proceeding, and agrees that service of process upon such agent, and written notice of said service to the Company by the person serving the same to 60 East 42nd Street, Suite 605, New York, NY 10165, United States of America, shall be deemed in every respect effective service of process upon the Company in any such suit or proceeding. The Company further agrees to take any and all action as may be necessary to maintain such designation and appointment of such agent in full force and effect. If for any reason such agent shall cease to be such agent for service of process, the Company shall forthwith appoint a new agent of recognized standing for service of process in the State of New York and deliver to the Investor a copy of the new agent’s acceptance of that appointment within ten (10) Business Days of such acceptance. Nothing herein shall affect the right of the Investor to serve process in any other manner permitted by Applicable Law or to commence legal proceedings or otherwise proceed against the Company in any other court of competent jurisdiction. To the extent that the Company has or hereafter may acquire any sovereign or other immunity from jurisdiction of any court or from any legal process with respect to itself or its property, the Company irrevocably waives such immunity in respect of its obligations hereunder.

(c)    The Investor irrevocably appoints Ctrip International Travel (U.S.) Co. Ltd. as its authorized agent in the Borough of Manhattan, New York City, New York upon which process may be served in any such suit or proceeding, and agrees that service of process upon such agent, and written notice of said service to the Investor by the person serving the same to WeWork 261 Madison, LLC, Room 10088, 10059, 261 Madison Avenue, New York, NY 10016, United States of America, shall be deemed in every respect effective service of process upon the Investor in any such suit or proceeding. The Investor further agrees to take any and all action as may be necessary to maintain such designation and appointment of such agent in full force and effect. If for any reason such agent shall cease to be such agent for service of process, the Investor shall forthwith appoint a new agent of recognized standing for service of process in the State of New York and deliver to the Company a copy of the new agent’s acceptance of that appointment within ten (10) Business Days of such acceptance. Nothing herein shall affect the right of the Company to serve process in any other manner permitted by Applicable Law or to commence legal proceedings or otherwise proceed against the Investor in any other court of competent jurisdiction. To the extent that the Investor has or hereafter may acquire any sovereign or other immunity from jurisdiction of any court or from any legal process with respect to itself or its property, the Investor irrevocably waives such immunity in respect of its obligations hereunder.

 

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Section 7.09    Specific Enforcement.

The parties hereto agree that irreparable damage would occur in the event that any of the provisions of this Agreement were not performed in accordance with their specific terms or were otherwise breached. It is accordingly agreed that the parties hereto shall be entitled to seek an injunction or injunctions to prevent breaches of this Agreement and to enforce specifically the terms and provisions hereof in the courts of the State of New York or any federal court of the United States of America, sitting in New York, this being in addition to any other remedy to which they are entitled at law or in equity.

Section 7.10    Further Assurances.

From time to time following the date hereof, the parties hereto shall execute and deliver such other instruments of assignment, transfer and delivery and shall take such other actions as any other party hereto reasonably may request in order to consummate, complete and carry out the transactions contemplated by this Agreement.

[Signature Pages Follow]

 

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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first set forth above.

 

[Signature Page to Amended and Restated Investor Rights Agreement]

IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first set forth above.

 

[Signature Page to Amended and Restated Investor Rights Agreement]

SCHEDULE 1

Competitor List

Exhibit 99.2

GUARANTEE AGREEMENT

This GUARANTEE AGREEMENT (this “Agreement”), dated as of April 26, 2019, is made by and among MAKEMYTRIP LIMITED, a limited liability company organized under the laws of Mauritius, with its registered offices at 19^th Floor, Building No. 5, DLF Cyber City, Gurugram, 122002, India (the “Company”), MIH INTERNET SEA PTE. LTD., a limited liability company organized under the laws of Singapore, with its registered office at 1 Scotts Road #21-07, Shaw Centre, Singapore 228208 (“Indigo Parent”) and MIH B2C HOLDINGS B.V., a limited liability company organized under the laws of the Netherlands, with its registered office at Taurusavenue 105, 2132LS, Hoofddorp, The Netherlands (the “Guarantor”). Capitalized terms used but not defined herein shall have the meanings ascribed to them in the Transaction Agreement (as defined below).

WHEREAS, Indigo Parent, the Company and solely with respect to Article XIII thereof, the Guarantor, are parties to a Transaction Agreement dated as of October 18, 2016 (as amended, modified and supplemented from time to time, the “Transaction Agreement”);

WHEREAS, pursuant to the Share Purchase Agreement (the “Share Purchase Agreement”), dated as of the date hereof by and among Indigo Parent, the Guarantor and Ctrip.Com International, Ltd. (the “Investor”), Indigo Parent will sell all its Class B Shares and Ordinary Shares to the Investor (“Ctrip Transfer”);

WHEREAS, in connection with the Ctrip Transfer, the Company and or its Affiliates desire to enter into an amended and restated investor rights agreement with the Investor, as of the date hereof (“Investor Rights Agreement”);

WHEREAS, pursuant to Section 13.01(c) of the Transaction Agreement, Indigo Parent has agreed to deliver a written guarantee of the Guarantor (or another controlling Affiliate of Indigo Parent reasonably acceptable to the Company) prior to the Ctrip Transfer; and

WHEREAS, Indigo Parent and the Guarantor desire for the Guarantor to provide a written guarantee in favor of the Company on the terms set forth in this Agreement, effective as of the closing of the Ctrip Transfer (“Closing Date”).

NOW, THEREFORE, in consideration of the foregoing and the mutual covenants and agreements herein contained, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and intending to be legally bound hereby, the parties agree as follows:

1.    Guarantee. The Guarantor hereby absolutely, unconditionally and irrevocably guarantees, as a primary obligor and not merely as a surety, (i) the due and punctual payment of all monetary obligations and liabilities of Indigo Parent under the Transaction Agreement and (ii) the due and punctual performance and observance of, and compliance with, all other covenants, agreements, obligations, liabilities, indemnities and warranties of Indigo Parent under or pursuant to the Transaction Agreement (the obligations and liabilities referred to in clauses (i) and (ii) collectively being referred to herein as the “Guaranteed Obligations”).

(b)    The Guarantor hereby irrevocably and unconditionally undertakes to the Company that, if and whenever Indigo Parent defaults for any reason in the performance of any of its obligations under the Transaction Agreement, the Guarantor shall immediately on demand perform or satisfy such obligation in the manner set out in the Transaction Agreement as if it were the principal obligor.

(c)    Such a guarantee from the Guarantor is (i) a continuing guarantee and shall extend to all of the relevant obligations of Indigo Parent under the Transaction Agreement regardless of any intermediate payment or discharge in whole or in part; and (ii) in addition to, and is not in substitution for and shall not merge with or be prejudiced by, any other rights, remedies or security which the parties may at any time hold in respect of the relevant obligations.

(d)    The obligations of the Guarantor shall not be affected by any act, omission or matter which would reduce or release any of such obligations, including any dissolution of Indigo Parent, any change in the constitution, status or control of Indigo Parent, any insolvency, liquidation, administration or other equivalent or similar proceedings of Indigo Parent, and the liability of the Guarantor shall continue or be reinstated.

(e)    This guarantee shall be effective as of the Closing Date and remain in full force and effect until the Guaranteed Obligations under the Transaction Agreement have been irrevocably paid and discharged in full.

(f)    The Guarantor represents and warrants to the Company on the date hereof and as of the Closing Date that:

(i)    The Guarantor is a corporation or other entity duly organized, validly existing and, to the extent applicable, in good standing under the laws of the jurisdiction of its organization and has the requisite corporate or other entity power and authority to own or lease all of its properties and assets and to carry on its business as it is now being conducted.

(ii)    The Guarantor has all requisite power and authority to execute and deliver this Agreement and to perform and comply with its obligations hereunder. The execution and delivery by the Guarantor of this Agreement has been duly authorized by all necessary corporate action on the part of the Guarantor, and no other corporate proceedings on the part of the Guarantor are necessary to authorize this Agreement.

(iii)    The Guarantor has duly executed and delivered this Agreement, and, assuming due authorization, execution and delivery by the other parties hereto, this Agreement constitutes its legal, valid and binding obligation, enforceable against the Guarantor in accordance with its terms (except insofar as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar Laws affecting creditors’ rights generally, or by principles governing the availability of equitable remedies).

(iv)    The Guarantor has provided the Company with a true, complete and accurate copy of the Share Purchase Agreement.

 

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2.    Amendment of the Share Purchase Agreement. The Guarantor and Indigo Parent jointly and severally agree not to take steps to amend the Share Purchase Agreement without the prior written consent of the Company, if such amendment (a) modifies the definition of the term “Outside Date” therein or (b) would in the reasonable determination of Indigo Parent and a majority of the Independent Directors acting on behalf of the Company materially and adversely impact the rights of or protection to the minority shareholders of the Company.

3.    Amendment of the Investor Rights Agreement. Subject to Applicable Law and the NASDAQ Stock Market Rules, the Company hereby agrees that it will not, and will not permit any of its controlled affiliates to, without the prior written consent of Indigo Parent, amend, supplement or otherwise modify or waive provisions of the Investor Rights Agreement in any manner that could reasonably be expected to prevent or materially and adversely impede, interfere with, hinder or delay the consummation of the Ctrip Transfer.

4.    Consent. Indigo Parent irrevocably consents, and confirms that it has no objections, to the execution, delivery and performance of the Investor Rights Agreement and the Share Purchase Agreement by the relevant parties thereto.

5.    Termination. Notwithstanding anything contained elsewhere, this Agreement and all obligations of the parties hereunder shall automatically terminate, without further action by any party hereto, upon the termination of the Share Purchase Agreement.

6.    Notices. (a) In accordance with Section 14.02 of Transaction Agreement, Indigo Parent hereby notifies the Company that Indigo Parent’s new address is the address set forth in item (b)(i) below. In accordance with Section 14.02 of Transaction Agreement, the Company hereby notifies Indigo Parent and Guarantor that the Company’s new address is the address set forth in item (b)(iii) below.

(b)    All notices, requests, claims, demands, waivers and other communications under this Agreement shall be in writing and shall be addressed to a party at the following address for such party:

(i) if for Indigo Parent, to:

MIH Internet Sea Private Limited

Taurusavenue 105

2132LS, Hoofddorp

The Netherlands

Attention: The General Counsel, Naspers Limited

Email: david.tudor@naspers.com

with copies to (which shall not constitute notice):

Wayne Benn

Email: wbenn@naspers.com

Cravath, Swaine & Moore LLP

CityPoint

One Ropemaker Street

London EC2Y 9HR

Attention: David Mercado

Facsimile: +44 207 860 1150

Email: dmercado@cravath.com

 

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(ii) if for the Guarantor, to:

MIH B2C Holdings BV

Taurusavenue 105

2132LS, Hoofddorp

The Netherlands

Attention: The General Counsel, Naspers Limited

Email: david.tudor@naspers.com

with copies to (which shall not constitute notice):

Wayne Benn

Email: wbenn@naspers.com

Cravath, Swaine & Moore LLP

CityPoint

One Ropemaker Street

London EC2Y 9HR

Attention: David Mercado

Facsimile: +44 207 860 1150

Email: dmercado@cravath.com

(iii) if for the Company, to:

MakeMyTrip Limited

19^th Floor, Building No. 5

DLF Cyber City

Gurugram, India, 122002

Attention: Mohit Kabra

Facsimile: +91 124 4395100

Email: groupcfo@go-mmt.com

with copies to (which shall not constitute notice):

Latham & Watkins LLP

9 Raffles Place #42-02

Republic Plaza

Singapore 048619

Attention: Michael Sturrock / Rajiv Gupta

Facsimile: +65 6536 1171

Email: michael.sturrock@lw.com / rajiv.gupta@lw.com

or to such other addresses as shall be furnished in writing by the Guarantor to the other parties to the Transaction Agreement in accordance with the Section 14.02 thereof.

 

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7.    Miscellaneous.

7.1    Governing Law. This Agreement shall be governed by, and construed in accordance with, the Laws of the State of New York.

7.2    Assignment. Neither this Agreement nor any of the rights, interests or obligations under this Agreement shall be assigned, in whole or in part, by operation of Law or otherwise by any of the parties hereto without the prior written consent of the other parties. Any purported assignment without such consent shall be void. Subject to the preceding sentences, this Agreement will be binding upon, inure to the benefit of, and be enforceable by, the parties hereto and their respective successors and assigns.

7.3    Severability. If any term or other provision of this Agreement is invalid, illegal or incapable of being enforced by any rule or Law or public policy, all other conditions and provisions of this Agreement shall nevertheless remain in full force and effect so long as the economic or legal substance of the transactions contemplated by this Agreement is not affected in any manner materially adverse to any party. Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible to the end that the transactions contemplated by this Agreement are fulfilled to the extent possible.

7.4    Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original and all of which shall be considered one and the same agreement, and shall become effective when one or more counterparts have been signed by each of the parties hereto and delivered to the other parties.

7.5    Specific Enforcement. The parties agree that irreparable damage would occur in the event that any of the terms or provisions of this Agreement were not performed by any party (the “defaulting party”) in accordance with their specific terms or were otherwise breached by such defaulting party. It is accordingly agreed that, without posting a bond or other undertaking, notwithstanding anything to the contrary contained in this Agreement, either party shall be entitled to injunctive or other equitable relief to prevent breaches of this Agreement by the defaulting party and to enforce specifically the terms and provisions hereof against the defaulting party, such remedy being in addition to any other remedy to which the party seeking specific relief may be entitled at law or in equity. The provisions of this Section 7.5 shall apply in respect of any arbitration proceeding brought pursuant to this Agreement, as well as any litigation permissibly brought pursuant to the terms hereof to enforce this Agreement. In the event that any action is brought by a party in equity to enforce the provisions of this Agreement, the defaulting party shall not allege, and the defaulting party hereby waives the defense or counterclaim, that there is an adequate remedy at law.

7.6    Arbitration. (a) Except as otherwise expressly provided herein, all disputes arising out of or concerning the existence, validity, interpretation or performance of this Agreement shall be resolved by arbitration in accordance with the rules of arbitration then in effect and administered by the International Centre for Dispute Resolution (the “ICDR”, and such rules, the “Rules”); provided that in the event the Rules conflict or are inconsistent with the procedures set forth in this Section 7.6, the procedures set forth in this Section 7.6 shall govern and control. The decision of the arbitration panel to be appointed hereunder (the “Arbitration Panel”) shall be final and binding on the parties and the parties hereby irrevocably waive any right of appeal or judicial review with respect to any aspect of the arbitration award. The arbitration award may be enforced in any court of competent jurisdiction.

 

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(b)    The Arbitration Panel shall consist of three arbitrators. Each party shall appoint a single arbitrator and the third arbitrator, who shall preside over the Arbitration Panel, shall be chosen by the two party-appointed arbitrators. If the responding party fails to appoint an arbitrator or if the two party-appointed arbitrators fail to appoint the third arbitrator within the prescribed time periods set forth in Section 7.6(c), then the appointments shall be made by the ICDR pursuant to the Rules.

(c)    Arbitration may be commenced by any party by giving written notice setting out the nature of the claim to the other party and to the ICDR pursuant to the Rules. Within fifteen (15) days of such notice, the party demanding arbitration shall appoint its arbitrator. Within fifteen (15) days of that appointment, the other party shall appoint its arbitrator. Within thirty (30) days after the appointment of both party-appointed arbitrators, those two arbitrators shall appoint the third arbitrator.

(d)    The arbitration and any evidentiary proceedings shall be conducted in English. The situs of the arbitration shall be New York City; provided that the Arbitration Panel may conduct proceedings in other locations if the parties so agree or if necessary for the taking of evidence.

(e)    Each arbitrator shall be impartial and shall be experienced with respect to commercial matters.

(f)    Any litigation commenced by any party in aid of the arbitration, or for injunctive relief to preserve assets, maintain the status quo or prevent any act pending the result of the arbitration shall be commenced only in any state court of the State of New York located in New York County or the United States District Court for the Southern District of New York, and any appellate court thereof, unless otherwise mutually agreed by the parties. With respect to any such litigation, each party hereby irrevocably consents to the exclusive jurisdiction of such courts and waives any objection to personal jurisdiction of and venue in such courts with respect to such proceedings and waives any claim that such forum is inconvenient. EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE IN CONNECTION WITH ANY SUCH LITIGATION IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE EACH SUCH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY SUCH LITIGATION. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (A) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF ANY SUCH LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (B) EACH PARTY UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (C) EACH PARTY MAKES THIS WAIVER VOLUNTARILY AND (D) EACH PARTY HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 7.6(F).

 

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(g)    The fact of arbitration, the claims and arguments made in the arbitration and any arbitration award shall be confidential and not be disclosed to any other person, except as required by Law or legal duty or in order to confirm, challenge or enforce the arbitration award. Materials and documents of any party utilized or produced in connection with the arbitration that are not otherwise public shall be treated as confidential by the other party and shall not be disclosed or utilized by the other party other than in the arbitration.

(h)    The Arbitration Panel is authorized to award monetary damages and to grant injunctive relief, including interim relief pending the final award. Any interim or provisional measures in the form of conservatory or injunctive relief ordered by the Arbitration Panel shall, to the extent permitted by applicable Law, be deemed final arbitration awards for purposes of enforceability. Any monetary award may include interest and shall be stated and payable in U.S. dollars. The Arbitration Panel is authorized to allocate as part of its award the costs and expenses of the arbitration, excluding attorney’s fees, as the Arbitration Panel deems reasonable. The Arbitration Panel is not authorized to award punitive or exemplary damages.

(i)    The parties shall bear their own costs incurred in connection with the arbitration and share equally the costs of administration of the arbitration and the fees and expenses of the Arbitration Panel.

[Signature Page Follows]

 

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IN WITNESS WHEREOF, this Agreement has been duly executed and delivered as of the date first written above.